Web Design & Development

 

 

C O’Malley & Associates Agreement to build Website won on eBay - Terms & Conditions (TOC)

Scope of this Agreement: According to the US Copyright Act of 1976, the creator of a piece of tangible work is also the owner by default. This Agreement will help us know your intentions for your web site and protects both of us in the event a disagreement arises.  This agreement takes effect when accepted by C O’Malley & Associates. It is to be governed by and construed under the laws of the State of Michigan and the United States of America. The federal and state courts of the State of Michigan shall have exclusive jurisdiction to adjudicate any non-arbitral dispute arising out of this agreement, once attempts at arbitration have failed. Customer hereby expressly consents to (1) the jurisdiction of the courts of Michigan and (2) service of process being effective upon it by registered mail sent to the address set forth at the beginning of this document, as may be changed from time to time by written notice actually received by C O’Malley & Associates. The service constitutes building a custom website using a pre-existing custom designed template as described in eBay auction #_________________. Upon notification of win, a content form must be filled out and this contract signed and returned to claim the services herein described.  This contact supercedes all other agreements, written, oral or otherwise. 

Project definition: This project is defined as adding content to a preexisting custom designed template created by C O’Malley & Associates in exchange for the winning bid on eBay.  The existing design template may not be significantly altered except to add buyer’s logo and text or make minor changes.  The template used will be that described and whose screenshot is viewable in the eBay listing.  By accepting this agreement Buyer agrees to remain within the scope of the allowable additions, changes and building parameters of aforementioned offer as set forth by C O’Malley & Associates.  Any work beyond the scope of this offer willl be billed at the current hourly rate, subject to change without notice.

Payment terms and conditions:  Buyer will pay the entire bid amount through PayPal, cashier’s check, or money order in the full amount of the winning bid within 10 days of notification and before any work is started.  C O’Malley and Associates will be the sole builders for this website using the aforementioned template and that buyer will take the time necessary to fill out the content sheet completely and thoroughly.  We cannot be held responsible for incomplete, confusing, or misleading content, or content that is not included or referenced on the contact sheet.  Text and images will be provided as typed final copy or on floppy disk, zip disk, or CD as referenced on the content sheet showing where each piece of information goes.

This custom website includes: 

• 1 year domain name of your choice (if available), provider chosen and acquired by C O’Malley & Associates
• 1 year of hosting, provider chosen and acquired by C O’Malley & Associates
• Hosting chosen will provide FTP capability.  
• Access to a basic verified business PayPal shopping cart is required for up to 5 products (1 photo and description for each). 
• OR a 10 field validated (if desired) submission form.
• The site may contain specific special effects, JavaScripts, or features as described in the eBay listing.
• Standard buttons that connect the shopping cart page to PayPal. (You must already have a basic verified business PayPal account, or be willing to open or upgrade to one). 
• An entry page with masthead and graphics using said template, with your incorporated logo, text and link names.
• Static pages as described in eBay listing with information you choose such as an "About Us" page or "Contact Us" or "Products & Services" or "Employment” page.  All static pages will use the template’s 2nd page as a basis for these pages.  Titles, photos and text content will be provided by buyer. 
• You can choose up to 4 "extra features" from a checklist on the content form such as a marquee, pop up box, scroll box, site search, guest book, etc. 
• Each page is comparable to an 8 1/2" x 14" sized page with up to 2 optimized photos per page. 
• You must have copyright and license to any photos or graphics you send.  We will not be responsible for the legality of your content.  I also require a signed model release for photos with people.  Buyer indemnifies C O’Malley & Associates for all content provided.
• Website is guaranteed to work and is tested on Internet Explorer 6 and Mozilla  and is best viewed on a monitor 1024 x 768 - the most common browser resolutions.
• Load times will be reasonable for a 56K connection with typical content.
• We use templates and style sheets to make updates to your site more efficient and reasonably priced should you wish to make changes in the future (Future changes are NOT included in this offer nor is a Content Management System).
• Site publicity is limited to submissions a few free search engines or directories. 
• Includes title tags, page description and 3-4 keywords per page.  No Search Engine page optimization for keywords or text is included. 
• In all you are getting a custom, multiple page website for your bid. Once this template is used, it will not be used for any other website by us.  This is a custom template developed by us and not purchased elsewhere.  We do retain the right to individual elements of the template such as buttons for use elsewhere, but not the design as a whole which is licensed in its entirety to the Buyer.

Email consultation: All contact between parties for clarification, questions etc. will be by email.  If the telephone is necessary to clarify a question, phone long distance charges will be at buyer’s expense. Consultation, copy writing beyond minor “clean up” and extensive editing are not included in this agreement. All text from buyer will be provided by email or on CD  and will be submitted error free, EXACTLY as you want it to appear (space and size permitting). If not provided digitally, additional charges may apply.  All correspondence will be in the English language, though site text may be in another language (please be clear as to where non-english text will be placed).

Hosting:  C O’Malley & Associates reserves the right to choose the hosting service and terms of service.  We choose hosting that will best fit your needs for the site won. We will contract with a hosting service and with a domain name provider for a one year for the above described website. If hosting or domain is not included in the offer, buyer will provide a valid credit card to be used for purchase if these items. Buyer will be responsible for all expenses associated with hosting and domain name and may choose to move the site elsewhere upon request and at Buyer’s expense.  We are not responsible for lost domains, lost hosting, host downtime.  The buyer agrees to allow C O’Malley & Associates to choose whichever hosting it wishes to host the site that will best accommodate the coding and structure of the site, however, C O’Malley & Associates is not responsible for the reliability of such host which is a 3rd party provider.

Completion date:  Buyer understands that to complete this site, we will need the text and graphics in a timely manner (within 4 weeks of signing this contract).  After receipt of content and a reasonable time for creation, the site will be available for viewing on our server so that buyer can make any minor corrections. After an opportunity to make corrections or minor changes, no further changes or corrections are allowed unless billed at the hourly rate. When the site is complete (or the opportunity for corrections has been fulfilled), and before uploading to the hosting service, buyer agrees to sign an Acceptance Waiver that the site is complete and all obligations have been met when the site is uploaded. If Buyer refuses to sign or abandons the project with no contact from Buyer in 3 weeks, then all obligations have been met by C. O’Malley & Associates.  Buyer may re-contract with us at a later date for changes, updates, comletion, etc. but that would be at our current hourly rates. 

Rights of Use: License to the finished assembled work of web pages produced by C O'Malley & Associates Web Design will be transferred when the final waiver is signed. Rights to photos, graphics, source code, work-up files, and computer programs are specifically not transferred to the buyer, and remain the property of their respective owners.  C O’Malley & Associates reserves the right to link to, showcase, or otherwise use the site unrestricted in it’s portfolio.  We reserve the right to remove the site from host servers for non-payment, or payment reversal, regardless of reason and without mediation.

Submitted Text & Photos. Please send us your final text. Time required to make substantive changes to buyer-submitted text or after the web pages have been constructed is NOT INCLUDED in this offer. Text that must be re-typed, or requiring major editing, or entered into a database, or is provided in a non-standard format is NOT included. Included is minor cropping and optimizing of photos.  Improvement in the quality of the photographs (brightness, color correction, sharpening, straightening) is NOT included. Custom graphic work beyond incorporating a web ready logo into the design is NOT included.  General page layout and balance is at C O’Malley & Associates’ discretion.

8. Completion Date. The entire site will be complete within ___ weeks after receiving all content and revisions, provided C O’Malley & Associates unless unforeseen circumstances delay completion. There will be no penalty for delay as long as C O'Malley & Associates Web Design has made a reasonable effort to complete the project within a reasonable time frame.

9. Payment of Fees. All fees within the scope of this project will be paid before work commences through aforementioned methods. The winning bid will be considered a non-refundable retainer fee upon signing of this contract. All fees and expenses will be paid in US Dollars.

12.  Legal Info. C O'Malley & Associates Web Design does not warrant that the functions contained in these web pages or the Internet web site will meet the buyer's requirements or that the operation of the web pages will be uninterrupted or error-free. The entire risk as to the quality and performance of the web pages and web site is with buyer. In no event will C O'Malley & Associates Web Design be liable to the buyer or any third party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate these web pages or web site, even if C O'Malley & Associates Web Design has been advised of the possibility of such damages. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.

13. Copyrights and Trademarks. The buyer represents to C O'Malley & Associates Web Design and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to C O'Malley & Associates Web Design for inclusion in web pages are owned by the Buyer, or that the Buyer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend C O'Malley & Associates Web Design and its subcontractors from any claim or suit arising from the use of such elements furnished by the Buyer. Buyer further indemnifies that all photos showing individuals have model releases on file.

14. Laws Affecting Electronic Commerce. From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The buyer agrees that the buyer is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend C O'Malley & Associates Web Design and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the buyer's exercise of Internet electronic commerce.

15. Sole Agreement. The agreement contained in this here constitutes the sole agreement between C O'Malley & Associates Web Design and the Buyer regarding this web site as purchased on eBay. This is also subject to our website TOS which is incorporated herein as addenda. Any additional work not specified in this contract must be authorized by a change order. If work continues beyond the specified time period, due to changes, lack of provided content, or other reasons beyond C O’Malley & Associates control, C O’Malley & Associates reserves the right to invoice at the prevailing rate per the TOS as a separate entity from the eBay offer to cover rescheduling such work.

16. Acceptance of Design Draft Upon notification by phone or email that the site is complete, buyer will be able to view the complete site for changes.  The Acceptance Waiver is to be signed once the site is determined to be free any errors, including typographical or link errors as inspected by Buyer.  By signing the Acceptance Waiver, the buyer indicates the site is ready for uploading to the hosting server.  An E-mail or other written acceptance may stand in place of the Acceptance Waiver at C O’Malley & Associates’ discretion. If there is no response from buyer within 10 business days indicating changes/corrections are needed after notification, the project is presumed to be entirely satisfactory and if full payment was received, the entire site may be uploaded to the server as is or emailed to Buyer and the project considered complete.

17. Force Majeure. Neither Party shall be responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by (a) fire, flood, explosion, earthquake, war, act of terrorism, organized union or third-party labor dispute, embargo, governmental action or failure to act, the act of any civil or military authority, act of God, inability to secure materials, (b) acts or omissions of telecommunication carriers, power or telecommunications outages, (c) any unlawful or malicious acts of any third party, including, without limitation, denial of service attacks and Harmful Components, or (d) any other causes beyond its reasonable control, whether or not similar to the foregoing.

18. Additional Services
“Free” services are subject to change without notice and in no way is C O’Malley & Associates liable for third-party subscription offerings even if obtained through our advice or procurement. Any work outside the job scope of the eBay winning bid will be invoiced at the hourly rate and will require approval before the extra work is done – this includes a signed contract in addition to this one.  Items that would be outside the scope of this agreement would include contacting the hosting provider on the buyer’s behalf, researching services at buyer’s request, acting as a liaison between parties involved, copywriting, extensive additions/edits, Search Engine Optimizing, Graphic or photo work, procuring graphics or photographs for the site, making the site viewable in less common browsers, adding Flash or other features such as paid news feeds, content management software, font fees, royalty-free photo fees, shopping carts, or other back end programming software requiring purchase, user fees or outsourcing costs which would be the responsibility of Buyer. This offering does NOT include email setup or hosting unless included with the procured hosting services – in such case we will set up one POP or redirect email account for Buyer’s use and additional accounts (if available) will be at the hourly rate.

19. Limitations.  We reserve the right to refuse any material submitted that is illegal, offensive or pornographic and against eBay, ours, or the hosting providers terms of service.  If we do not receive your content within 4 weeks of win notification in the form of this signed contract and your content, your bid will be considered expired and no domain, hosting or website will be forthcoming. No work will proceed without this signed contract.  If work is stopped partway though the process, the entire amount will be considered a non-refundable retainer. and the ownership of any hosting or domain acquired will remain the property of C O’Malley & Associates.  Buyer agrees to abide by all terms and conditions of this agreement and agrees to dispute resolution solely thorough an arbitration process before any legal action is taken.