Effective April 15, 2009
The provider of services, Daniel W. Moore or any agent hired or utilized by Daniel W. Moore at http://www.danielwmoore.com/, will be henceforth known as "Provider."
1. Acceptance of Terms
By accepting the Provider's Terms of Service (TOS) electronically or in writing, and/or by using Provider's services, including but not limited to, submission of content to the Provider for design, payment or authorization of payment, you (Client) agree to be bound by the following terms and conditions. Client also agrees that Client's electronic acceptance of this TOS shall have the same force and effect as if Client had agreed to this TOS in writing.
Provider provides its services to Client subject to the following TOS, which may be updated from time to time without notice. Client should periodically review the most current version of the TOS at http://www.danielwmoore.com/tos. Failure to comply with the TOS may result in account termination. By using Provider's services, Client agrees to (and hereby signs) the most current version of the TOS. If Client does not expressly reject the TOS and cancel Client's account within 5 days from the date of initial sale, Client agrees to (and hereby signs) the TOS and Provider is instructed to commence work on the Client's website as if Client had expressly accepted the TOS.
Client's acceptance of the TOS is binding upon all Provider services including the purchase of additional services or additional websites or accounts at a later date.
2. Description of Service
Provider designs and hosts websites and provides other website-related services, including, but not limited to, support and modification of websites, e-commerce, flash, web-traffic reporting, database development, easy interface for updating the website, E-mail accounts and additional website-related services. Client understands that Provider's services may include certain communications from Provider such as advertisements, notices, service announcements and newsletters. Client is responsible for obtaining access to Provider's services that may involve 3rd party fees (including but not limited to, ISP, merchant accounts and gateways). Client is also responsible for all equipment and software necessary to access Provider's services.
3. Electronic Delivery Policy
Provider is a website-related business and communicates with its Clients electronically. When Client accepts this TOS Client consents to receive electronically from Provider any notices, agreements, disclosures, or other communications (Notices). Client agrees that Provider may send electronic Notices in either of the following ways 1) To the E-mail address provided to Provider at the time of sale or 2) to the new E-mail address account Client set up through Provider. Client agrees to check the designated E-mail addresses regularly for Notices. Notice from Provider is effective when sent by Provider, regardless of whether the Notice is read or received by Client.
5. Call Monitoring and Recording Privacy Statement
As part of Provider's commitment to providing the best possible service, Provider may monitor and record phone calls answered by Provider and made by Provider. Provider may also archive recorded voice mail messages. Provider records calls to ensure an accurate record of Client calls, which may be needed to support transactions that take place over the phone. This allows Provider to identify how Provider can better serve its customers.
6. Unacceptable Practices
As Provider strives to offer the very best service; there are certain guidelines and policies that must govern Provider's efforts and relationships with its clients. Practices that are in violation of these guidelines and policies are strictly forbidden and may result in the immediate termination of Provider's services. Such decisions are at the sole discretion of Provider. Unacceptable practices include, but are not limited to:
- Adult or pornographic material including, but not limited to, sexually explicit or suggestive material
- Sexually oriented products or services (e.g. escort services), or other sexually oriented material
- Nudity, including airbrushing (exceptions granted on a case-by-case basis if for medical or artistic purposes)
- Lingerie websites
- Offensive or otherwise distasteful material
- Content or language that is harmful to minors in any way
- Bulk E-mailing tools
- Distribution of Internet viruses or other harmful or destructive activities
- Hacking and cracking
- Scams or phishing for personal information
- Solicitation of funds other than for legal charitable organization (exceptions granted on a case-by-case basis at Provider's discretion)
- Gambling, gaming, lotteries, and like activities
- Harmful, threatening, violent, abusive, harassing, tortuous, vulgar, obscene, libelous, invasive of another's privacy, racial, chauvinistic, ethnically offensive, complaint websites, or otherwise objectionable content or language
- Defamatory, hateful or revenge content or language.
- Aids to pass drug tests or aids to pass lie detector tests.
- Illegal activities such as ponzi schemes, pyramid schemes, fraudulent charging of credit cards, copyright violations, plagiarism, software piracy, and all unauthorized use of materials or content that infringes on third parties' intellectual properties
- Multi-Level Marketing (MLM) without a legitimate product or service, with a front product or service, or where the primary intent is to recruit new members rather than to sell products
- Reverse Funnel Systems
- Cash Gifting
- Illegal drugs or drug paraphernalia
- Prescription drugs and related content
- Alcohol sales
- Tobacco sales
- Miracle cures
- Fake documents
- Fireworks, pyrotechnics, firearms, explosives or weapons.
- Intentional or unintentional violations of any applicable local, state, national or international law.
- Reselling of E-mail accounts or hosting accounts to third parties.
- Reselling of any Provider services including, but not limited to, design services, and updates, to third parties without a written re-seller agreement.
- Spamming and all other forms of unsolicited messages including, but not limited to, spam, chain letters, and junk E-mail
- Links to other sites that are in violation of the Provider's policies and guidelines
- Other activities, whether lawful or unlawful, that Provider deems to be in poor taste or that reflect adversely on Provider or Provider's other clients
- Provider reserves the right to refuse to design or host an account at its sole discretion at anytime.
As a Client, you may have access to editing tools for your website. Client may edit, add or delete content to the website at anytime. With this understanding, Provider may or may not prescreen content. Provider shall have the right (but not the obligation) to prescreen and refuse or remove any content at its sole discretion. Client agrees that Client bears all risks associated with the use of all content, whether edited or written by Provider or not, including any reliance upon accuracy, usefulness or completeness.
Client acknowledges that Provider may access, preserve, and disclose Client's account information and content if required to do so by law or in a good-faith belief that such access, preservation, or disclosure is reasonably necessary to comply with legal processes, enforce the TOS, provide customer service or protect the rights, property, or safety of Provider and the public.
7. Intellectual Property Policy
Provider respects intellectual property laws, including those applicable to copyright and trademark, and the intellectual property of others. Provider may terminate accounts for copyright or trademark infringement, or for any other reason Provider deems appropriate as it may relate to Client's use of another's intellectual property. If you believe your work has been copied and is accessible on a Provider's website, please see Provider's Intellectual Property Policy at http://www.danielwmoore.com/ipp.
Provider will not use copyrighted or trademarked materials on any Client's website without the express written consent of the copyright or trademark owner. It is Client's responsibility to ensure that all content submitted to Provider is original content and free from third-party copyright or trademark protection, or to obtain permission to use from the copyright or trademark owner. Client assumes full liability for any copyright or trademark infringement of Client's website on any third-party copyright or trademark, including, but not limited to, any infringement due to website content, website design or the look and feel of Client's website. (See section 6, Unacceptable Practices).
Client content that is sent to Provider will remain the intellectual property of the Client. Provider does not return original content to the Client. Unless a request to return the original content to the Client is made in writing upon submission of the content, the content will be destroyed. Provider will attempt to honor requests to return original content; however, Provider has no liability and does not guarantee the return of any content to Client.
Domain names purchased by Provider and website designs, databases, stores, or programs created by Provider are the property of Provider until Client has paid all fees, including one full year of monthly hosting. (See section 24, Domain Names Purchase/Hosting Agreement)
8. International Use
Recognizing the global nature of the Internet, Client agrees to comply with all local rules regarding on-line conduct and acceptable content. Specifically, Client agrees to comply with a) all laws and regulations regarding the transmission of technical data exported from the United States, or the country in which Client resides and/or transacts business, and b) all laws and regulations regarding the collection and processing of personal data, including those relating to the transborder transfer of personal data.
9. Interstate Communications
Client acknowledges that by using Provider's services, Client will be causing communications to be sent through Provider's computer networks, which may be located throughout the United States. Due to the nature of electronic communications, even communications that seem to be intrastate can result in the transmission of interstate communications. Client acknowledges that use of Provider's services results in interstate data transmissions and may result in transborder transfer of personal data. Client hereby consents to the collection, processing and transborder transfer of such personal information as Client may provide or make available to Provider.
10. Website Construction Procedure
With help and input from the Client, Provider will prepare the appropriate custom design and work with the content provided by the Client for development of the site. Client must submit content to the Provider before site construction begins on the custom website. Client must submit content through the On-line Design Packet (ODP). Client must electronically accept the TOS before access is granted to the ODP. After content is submitted by the Client, the website is developed. Prior to the website being taken live, the client will receive a missing information notification if content is incomplete. Client will then have two weeks to submit complete content. If complete content is not received, the website will then be taken live "as-is". If the website is taken live without all of the pages completed due to incomplete content, those pages may be banked and developed in the future using Client's design time.
In submitting content through the ODP, links to sample sites the Client likes are for general information purposes only and assist Provider with the design of the Client's custom website. The functionality and detail of the sample sites will not be duplicated unless such functionality and detail are specifically included and itemized in Provider's invoice and do not infringe upon the intellectual property rights of others.
The design and content layout are completed by the designer and presented to the Client for approval. After the Client approves the website, the website will go live. The Provider may review the text before site goes live to correct any possible errors. Provider will not be held liable for accuracy of information, typos, or spelling errors in any of the content approved by the Client and published on the website. Client will be notified by E-mail that the website is now live.
Client understands, agrees and acknowledges that Provider does not guarantee a time frame for completion of ANY custom website. A custom website cannot be completed without submission of complete content, design approvals and participation from the Client. If Client continues submitting additional content throughout the design process, the design time frame is increased. If Client does not submit complete content and Provider is not able to start or complete the custom website design, Client is still responsible for all fees incurred including, but not limited to, set-up, enhancement and monthly hosting charges that begin accruing from date of sale. If Client's website requires custom programming, functionality, flash, e-commerce or the use of a database, the overall development time will be extended.
Client is provided with a space holder immediately after sale. Upon request, Client is also provided with an optional welcome website shortly after the initial sale. The welcome website is a temporary website Client can modify and send customers to while the custom website is being built. Client may choose not to have a welcome website if so desired.
11. Client Approval
Client is responsible for testing the functionality of the website upon Provider's request for approval and notification that the website has been completed. This includes, but is not limited to, functionality of all website pages, database, e-commerce store, payment functions, galleries, forums, etc. Upon Client approval of the website to go live, Client agrees services have been rendered and functionality of website has been tested and approved by Client.
The Client understands and agrees that if the Client does not respond within 5 business days to Provider's request for approval and notification that the website has been completed, the website along with the functionality of the website and services rendered, will be deemed to be approved by the Client, and the website will be taken live "as-is".
The Client understands and agrees that if the Client does not respond to requests for missing information, a final notification will be sent to the Client. If the Client does not respond within 5 business days to Provider's notification or requests for missing information, the website, along with the functionality of the website and the services rendered, will be deemed to be approved by the Client, and the website will be taken live with the missing information "as-is" or "under construction".
In the event that Provider completes all of the work per the original sale and database specifications, Provider reserves the right to move the site live and deem the work to be completed without Client's permission if Client will not give approval of the work.
12. Website Change Requests Before and After Website Goes Live
Provider agrees to build a website and/or database to specifications quoted per the original sale and original invoice. Any additions or changes requested outside of the scope of the original sale, either prior to the custom website going live, or after the site has gone live, will be billed at Provider's standard hourly rate. Provider is not obligated to complete Client requests or changes outside of the scope of work on the original invoice. If Provider does not agree to Client requests or changes, Client is still obligated to pay all fees incurred and due.
Provider does not guarantee a time frame for completion of ANY custom database or custom programming. A custom "Database Specifications Summary" may be presented to the Client. Provider agrees to complete the database design according to the specifications outlined. If the Client does not object or respond to the Database Specifications Summary in writing within 5 business days, it will be deemed to be accepted by the Client, and Provider may proceed with development of the custom database as outlined. A Database Specifications Summary may not be presented to the Client for purchase of prebuilt database modules and e-commerce store modules.
If Client requests changes to a prepackaged database, prebuilt database module, or e-commerce store module, changes are to be billed to Client at Provider's standard hourly rate. There is no guarantee that changes made by Provider to a prepackaged database, prebuilt database module, or e-commerce store module will work. Client agrees charges are valid and agrees to pay for all fees incurred for Client's requested changes to prepackaged databases, prebuilt databases modules, or e-commerce store modules. Once work has begun on a database or custom programming there is no refund if cancelled.
Client is responsible for testing the functionality of the website upon Provider's request for approval and notification that the website has been completed. This includes, but is not limited to, testing the functionality of the custom database or programming. Upon Client approval of the website to go live, Client agrees services have been rendered and functionality of website has been tested and approved by Client.
Provider will instruct Client as to the use of the custom database and the inputting of data related to such database. However, data entry is the sole responsibility of the Client. If the Client requests Provider to enter data into the database, the Client will be charged, and agrees to pay, for such data entry at Provider's standard data entry rates.
Client is required to submit store content via Provider's content spreadsheet. Provider will input up to 20 products free of charge. The Client will be provided with instructions to input any additional products into the store. If the Client requests Provider to enter additional products exceeding the original 20, the Client will be charged, and agrees to pay, for each product added to the store at Provider's standard product-entry rates. The e-commerce store module is prebuilt, and any changes to the look or functionality of the prebuilt store require custom programming. The Client will be billed at Provider's standard hourly rate for requested changes. (See section 13, Database/Programming)
Client is responsible for testing the functionality of the e-commerce store upon Provider's request for approval and notification that the website has been completed. This includes, but is not limited to, testing the payment functionality. Provider is not responsible for functionality of third-party services such as, but not limited to, merchant account or gateway. Upon Client approval of the website to go live, Client agrees services have been rendered and functionality of website has been tested and approved by Client.
15. Enhancements to Website
Client may purchase enhancements to the website at the time of initial sale or anytime thereafter. Enhancements to the website may include, but are not limited to, custom programming, database, flash, e-commerce, logos, galleries, rollovers, etc. Client's requests for enhancements to the original sale will be due and billed separately and at the time of request. The monthly hosting fee will be adjusted according to the enhancements requested or the hosting package selected by Client.
Some enhancements such as, but not limited to, flash, custom programming, functionality, etc., may require that a specifications summary be presented to the Client. If the Client does not object to the specifications summary within 5 business days, the summary will be deemed to be accepted, and Provider will proceed with the development as outlined. Once work has begun on enhancements purchased by the client, there is no refund if cancelled. Enhancements or additional services purchased after the initial sale are separate purchases and are in addition to and separate from the original sale. If Client cancels an enhancement, the original sale is not cancelled.
16. Expedited Services
While Provider does not guarantee a time frame for the completion of any custom website, it may offer an optional expedited service to Client for a fee. Expedited service is not available for all accounts, and Provider, at its sole discretion, must approve all requests for expedited service. Client understands and agrees that Client's use of expedited service does not guarantee that Client's website, including its corresponding design, enhancements, databases, e-commerce stores, flash, etc., will be completed more quickly than they would be without the use of the expedited service. The expedited service fee only ensures that Provider will make reasonable efforts to more quickly assign designers and programmers to the account in an effort to facilitate development than would be the case under the ordinary developmental process.
The successful use of expedited service is contingent upon Client's timely acceptance of the Terms of Service, payment of any and all fees due, completion of the On-line Design Packet (ODP), acceptance of any project specification documents prepared by Provider, and Client's timely cooperation with Provider in any solicitation for information related to the website's development.
If Provider offers expedited service to Client, Client may be presented with an estimated date of completion. Client understands and agrees that such estimated dates of completion are estimates only and may apply only to one particular element of the website, i.e. database, flash, e-commerce, design, and not necessarily to multiple elements of the website or to the website collectively. Under no circumstances will Provider guarantee the respective portion or portions of the website subject to the estimated date of completion to be completed sooner than the estimated date of completion. Should circumstances arise that make it impossible to complete the portion or portions of the website that are subject to the estimated date of completion by the estimated date of completion, including but not limited to, Client failure to provide Provider with requested information in a timely manner, Provider reserves the right to change the estimated date of completion accordingly or to cancel the expedited services and refund a portion of the expedited service fee to Client. In no case shall the portion of the expedited service fee to be refunded be greater than fifty percent (50%) of the expedited service fee. Regardless of whether work is completed by the estimated date of completion, Client remains liable to Provider for any and all other charges related to the website's development.
17. Additional Services
Client may purchase, at an additional monthly cost, additional services offered by Provider. Additional monthly services include a monthly fee that is incurred and billed every month beginning from the date of purchase of the additional service. Provider will not refund any fees incurred for additional services or paid by the Client prior to the cancellation effective date for the additional service. Any fees invoiced and incurred are valid and Client agrees to pay. Additional services purchased may be cancelled with 30 days written notice.
18. E-mail Accounts
Based on the hosting support package purchased, E-mail accounts are also provided. E-mail accounts may be set up and used immediately upon Client's purchase of website. Client does not need to wait until custom website is live to use E-mail accounts. To begin using E-mail accounts, Client should contact Technical Support through the Contact page or by the E-mail address given to the Client for support purposes.
19. Technical Support
If Client uses Provider's technical support services, including, but not limited to screen share sessions, Client acknowledges and understands that Provider does not warranty that technical support services will meet Client's requirements or be error free. (See section 37, Disclaimer of Warranties and section 38, Limitation of Liability.)
20. Customer Service
The Provider strives to offer the best service available. Customer service complaints or concerns should be reported to the Provider.
21. Use and Storage
Client acknowledges that Provider may establish general guidelines and limits concerning use of Provider's services and may modify these guidelines at any time. Limits may include, but are not restricted to, the maximum number of days that E-mail messages or other content will be retained, maximum number of E-mail messages that may be sent from or received by an account, the maximum size of any E-mail messages sent and the maximum disk space that will be allotted on Provider's servers on Client's behalf. Provider periodically backs up the websites it hosts. However, Client acknowledges that Provider is not responsible for backing up Client's website and data. Client should seek appropriate backup solutions. Changes made by Client using the editing tool or by Provider may be lost if data loss occurs after a scheduled backup by Provider.
22. Server Security Practices
Provider utilizes security practices that comply with standards set by the Payment Card Industry (PCI) in maintaining its servers. Provider will not modify its shared-hosting server settings and configurations to Client's individual preferences. Provider routinely scans its servers to ensure compliance with good security practices. Unauthorized security scanning and penetration testing of shared-hosting servers by the Client is strictly prohibited.
Provider, at its sole discretion, may allow or perform server administration and or customization to client accounts that are hosted on a virtual private server (VPS) or a private server. Such server customization and administration is subject to Provider standard hourly rates and Client agrees to pay for any and all such customizations requested.
If Client uses its website to collect, store, display, process or otherwise use sensitive or confidential information, including, but not limited to, credit card information, social security numbers, credit or financial information, medical or health care related records, insurance records, sales records, personal information, etc., then Provider, at its sole discretion, may require Client to utilize certain services to improve the security of Client's website. Such services may include security certificates, hosting Client's site on a Virtual Private Server (VPS) or on a private server, and using programming that encrypts the sensitive or confidential information used by Client's website. Client understands and acknowledges that there may be costs associated with these services and agrees to pay for said services if used by Client.
23. Updates to Live Website/Design Time
Based on Client's hosting package, Provider may provide 4 to 12 hours annually of free updates and changes or "design hours" that are available to Client to use after the website is live. After the website is live, Client may wish to make changes or updates to the website from time to time. Most changes can be made using Provider's on-line editors. The on-line editors may not be available for all websites, or all pages of a website. Availability of the on-line editors is dependent upon the functionality and specifications required for the Client's website. For changes that cannot be made with the editors, Client may use available Provider design hours. These changes must be requested in writing to the Provider, either by E-mail or regular mail. Design hours can be used for modifying the design or layout of the website. Design hours cannot be used toward the completion or modification of databases, custom programming, e-commerce or flash or other enhancements that must be purchased. Changes or updates that exceed the Client's available "design hours" will be billed to the Client at the standard hourly rate.
Client updates are responded to in the order that they are received. Update requests are generally assigned to a programmer within 48 business hours of their receipt. Provider makes no representations or guarantees with respect to a time frame for the completion of Client update requests. The nature, size and complexity of the update request, as well as the total number of update requests being processed at any given time, will affect the time required to complete an update request.
Provider is not responsible for any changes Client makes to website, or if Client breaks the website. Time required by Provider to repair changes made by Client will be billed to Client at Provider's standard hourly rate if it exceeds available "design hours".
24. Domain Names Purchase/Hosting Agreement
Monthly hosting is billed 60 days from the date of sale and is recurrently billed every 30 days thereafter. Monthly hosting is billed from the date of sale, regardless of the date the website goes live, because hosting costs are incurred immediately. Server space is secured for the developing website and/or for existing Client domain names. In addition, E-mail accounts and support are available from the date of sale and are paid for with monthly hosting fees. Client agrees to a one-year hosting commitment with Provider.
Domain names purchased by Provider and website designs, databases, stores, or programs created by Provider are the property of Provider until Client has paid all fees, including one full year of monthly hosting. At that time, ownership of the site, its functionality, and domain name may be transferred to the Client's control upon receipt of the Client's written request. Sham purchases of sites may not be transacted with the intent and/or result of having a site built, then transferring the site to another hosting provider. Clients may buy out their hosting by paying 12 months of hosting in advance if they wish to transfer the domain name and content to Client's control prior to one (1) year of paid monthly hosting. Provider expressly reserves the right to retain one copy of any website designs, databases, stores, flash, programs, writings, or any other work created for Client for evidentiary purposes.
Upon transfer of domain and/or website to Client or another service provider at anytime, Client agrees that Provider has met in full its obligation to Client, and Provider is released of all past and future obligations to the client. Additional work and/or hosting done for Client must be agreed to in writing and paid for by Client.
Domain names are purchased through a third-party service. Provider cannot guarantee the availability of domain names and has no liability for a domain name not being available for purchase after the initial sale. If a domain name is not available for purchase, Provider will assist the Client in selecting and purchasing an alternate domain name. Domain names already owned by the Client remain the property of the Client and renewal of the domain name is the Client's responsibility. The renewal of any domain names transferred to the Client is the responsibility of the Client. Upon cancellation or termination of Client's account, Provider will no longer renew any domain names associated with the account and Client assumes sole responsibility for their renewal thereafter.
25. Marketing Representations
Provider makes no representations as to the marketing of Client's products, services or sales. Client's obligation to pay fees due to Provider are due at time of sale of website design and hosting services and are not contingent upon Client's marketing of said website. Client is responsible for all marketing of Client's website. Provider is not responsible for marketing of Client's website, which includes search engine rankings.
26. 90-Day Satisfaction Guarantee
The Provider provides a 90-day satisfaction guarantee. Provider will continue to change and modify the Client's website to Client's liking within 90 days from the date of sale or until the website is taken live, whichever comes first, at no additional cost, provided that said revisions are part of the original sale and are not enhancements to the original sale. Changes to the website made after 90 days from the date of the initial sale, or after the website is taken live, will first be billed to the Client's design time hours available based upon the monthly hosting package purchased by the Client. Changes to the website that exceed the design time hours will be billed to the Client at Provider's standard hourly rate over and above the initial design fee paid. Provider does not guarantee that the website designed will be exactly what the client has envisioned. Provider's best effort will be given for the 90-day satisfaction guarantee, but Provider is not obligated to complete multiple redesigns or modifications. While Provider may agree to make requested changes and to bill the Client's design time or bill the Client directly, Provider is not obligated to complete Client requests or changes outside of the 90-day satisfaction period. If Provider does not agree to Client requests or changes, Client agrees and is still obligated to pay all fees incurred and due.
27. Billing Policy
The initial design set-up fee is due and billed in full at the time of the original sale. (Installment payments may be accepted for the set-up fee only if agreed to in writing per the original invoice.) Monthly hosting is billed and due every month beginning 60 days from the date of the original sale. The Client hereby requests that Provider renew and bill monthly hosting fees every 30 days thereafter, unless the Client cancels in writing after 12 months of monthly hosting fees have been paid.
Monthly hosting and additional services fees may be billed on the 1st or 15th of each month to coincide with Provider's billing cycles. The amount of the initial design set-up fee and monthly hosting fees are detailed on the original invoice confirming amounts of sale. Monthly hosting amounts may vary depending upon the hosting package selected by Client.
Provider reserves the right to change prices at any time. Price chnages may include monthly hosting amounts, hourly design fees, or any other prices the Provider sets.
Provider will make payment options available to Client. Payment options and payment schedule must be agreed upon before work can commence on the site.
Provider reserves the right to hold Client, its principals and authorized representative(s) jointly and severally liable for any and all amounts owed.
28. Billing Disputes
Provider charges up to a $25.00 fee for returned checks and a $200.00 fee to handle unauthorized credit card disputes. If Provider does not receive payment in full when due, Provider may, to the extent permitted by the law of the state of the billing address on file for Client at the time, charge a late fee of up to 1.5% per month (18% per annum), or a flat fee of $5 per month, whichever is greater, on any unpaid balance. Provider may, to the extent permitted by the law of the state of the billing address on file for Client at the time account is sent to a collection agency, also charge Client for any collection agency fees and/or attorney's fees billed to Provider for collecting from Client. Provider does not agree to, and will not honor, any limiting notations made by a Client on a check.
If the Client wishes to dispute a charge then the Client must first contact the Provider and must allow 10 business days for a response. To avoid any dispute about Client's attempt to contact Provider, Client must send the request in writing to:
Daniel W. Moore
24 County Road 4068
Oxford, MS 38655
Requests may be E-mailed to the Provider. If Client chooses to send request by E-mail, a copy of the request must also be sent by mail as confirmation.
If Client initiates a credit card dispute, the decision of the credit card company is made through an arbitration process and the decision of the credit card company shall be binding upon Client.
29. Termination/Cancellation of Services
Provider, at its sole discretion, may terminate its service and remove and discard any content, for any reason, including and without limitation, for lack of use, or if Provider believes Client has violated the TOS. Provider may also at its sole discretion and at any time, discontinue providing services, or any part thereof, with or without notice. Client agrees that any termination of access to Provider's services under any provision of this TOS may be effected without prior notice and that Provider may deactivate or delete Client's account and all related information files. Client agrees that Provider shall not be liable to Client or any third-party for any termination of services. Paid accounts that are terminated will not be refunded. Provider may suspend or terminate accounts, and shut down website for accounts, that become delinquent for more than 30 days, in which case Client remains responsible for any unpaid balance owed to Provider. Charges for monthly hosting will continue to incur for delinquent accounts until Client's one-year hosting obligation has been met, even if account has been suspended or terminated. Provider also reserves the right to discontinue the designing of Client's website at any time, at Provider's sole discretion, with an appropriate refund to the Client. Under no circumstances is the refunded amount to exceed the amount collected by Provider.
If the Client cancels an account before the work is completed or site is live, a cancellation fee is retained per the Cancellation Fee and Refund Policy. Client agrees that all fees incurred and billed prior to cancellation effective date are valid and Client agrees to pay. Upon request for termination of services, the website will be removed. A back-up copy of the website is not maintained by Provider.
Client agrees to pay all hosting fees and additional services fees owed from the time of sale until the cancellation effective date, and at a minimum for hosting fees for one (1) year. Transferring a domain name to another provider or non-use of Client's hosting account does not constitute termination of the account. Client must notify Provider in writing or via E-mail to terminate the account services and avoid further monthly hosting charges. It is Client's responsibility to secure confirmation from Provider that the request for termination has been received and no further hosting fees will be billed.
Requests for cancellation of website hosting services or additional services should be sent to the following address:
Daniel W. Moore
24 County Road 4068
Oxford, MS 38655
Requests may be emailed to the Provider. If Client chooses to send request by E-mail, a copy of the request must also be sent by mail as confirmation.
30. Cancellation Effective Date
Client may terminate hosting services after one full year of paid hosting with 30 days written notice. The effective date of cancellation is to be 30 days from the date of Provider's receipt of written notice to cancel. Any monthly fees scheduled to bill after receipt of written notice to cancel, but before the effective date of cancellation, are valid and client agrees to pay.
If Client has not paid all design, enhancement, hosting and additional services fees due, such fees are due in full at the time of cancellation and Client authorizes Provider to collect any outstanding fees due subject to the Cancellation Fee and Refund Policy. Client understands any pending billing for design fee installments previously agreed to will not be cancelled.
31. Cancellation Fee and Refund Policy
WEBSITE DESIGN/DEVELOPMENT - Refunds of the fees paid for development of the website may be issued on accounts cancelled within 90 days of the initial sale and prior to the completion of the website according to the following schedule:
A) A minimum of a 50% cancellation fee will be retained by Provider on cancelled accounts, even if no work has been started and no content yet submitted by the Client.
B) A minimum of a 75% cancellation fee will be retained by Provider on cancelled accounts if work has been presented to the Client; or Provider has made multiple attempts to work with the Client, and Client has not responded to those attempts.
C) A 100% cancellation fee will be retained by Provider and NO REFUND issued if any changes and/or modifications requested by the Client have been completed by Provider. No refund will be issued on any website cancelled after services have been rendered, including but not limited to, the design work having been completed and/or the website taken live.
D) 100% cancellation fee will be retained and Provider will issue NO REFUND if Client cancels after 90 days from the initial sale.
MINIMUM CANCELLATION FEE - Client agrees that Provider will retain a minimum cancellation fee of 50% on all cancelled accounts even if no work has been started. The cancellation fee is charged to compensate Provider for up-front expenses and services rendered, including, but not limited to, costs incurred for the purchase of domain name(s) for developing the website, securing server space, creating the temporary website or space saver, employee expenses, marketing, and overhead costs.
ENHANCEMENT SALES - A 100% cancellation fee will be retained by Provider and NO REFUND will be issued once work has begun on any enhancements purchased, including, but not limited to, databases, programming, logos, flash, galleries, rollovers, e-commerce stores, security certificates, design time, domain names, etc. A minimum cancellation fee of 50% will be retained on cancelled expedited services. Client agrees that Provider will retain a minimum cancellation fee of 50% on all cancelled enhancement purchases if cancelled within 90 days of the enhancement sale and if work has not yet begun. Provider will issue NO REFUND if client cancels after 90 days from the enhancement sale. Enhancements or additional services purchased after the initial sale are separate purchases and are in addition to and separate from the original sale. If a client cancels an enhancement, the original sale is not cancelled.
MONTHLY HOSTING – Client agrees that there is NO REFUND of monthly hosting fees or monthly additional services fees incurred or paid by the Client prior to cancellation date.
Client agrees that all fees incurred and billed prior to cancellation date are valid and Client agrees to pay. (See section 29, Termination/Cancellation of Services.)
By accepting a refund in full or refund less cancellation fee, Client agrees that the matter is settled in full and releases Provider, its officers, owners, members, agents and employees of any and all contractual obligations and waives all claims of any nature, including legal action, against Provider's its officers, owners, members, agents and employees.
32. Account Transfer
Requests for transferring the ownership of a website or hosting account from Client to a new owner must be completed in writing by both the current account owner and the new designated owner. The transfer is not valid until a signed request is received by Provider in writing which is to include payment authorization and new billing account information from the new owner, documentation of the ownership transfer (purchase agreement, etc.), documentation of copyright transfer, and acceptance of Provider's TOS by the new owner.
33. Provider Proprietary Rights
Client acknowledges and agrees that Provider's services may contain proprietary and confidential information that is protected by intellectual- and proprietary-rights laws. Client agrees to not reproduce, duplicate, copy, sell, resell or exploit any portion of Provider's services.
34. Use of Client Information
Client herby gives permission to Provider to use samples or links to Client's custom website designed by Provider for marketing and advertising purposes, including, but not limited to, use in Provider's on-line portfolio.
35. Third-Party Services
36. Contract Service Providers
Provider may contract with Contract Service Providers to complete a portion or all of the Client's custom website. The Client agrees not to do business directly with the Contract Service Provider, nor to remit payment to the Contract Service Provider or any Provider employee directly for services. All payments for services rendered must be made directly to Provider. Contract Service Providers are independent contractors and are required to follow company policies and procedures. Contract Service providers are provided with only the information needed to complete the design or development portion of the Client's website and do not have access to Client's personal information, including payment information.
37. Disclaimer of Warranties
CLIENT'S USE OF PROVIDER'S SERVICES IS AT CLIENT'S OWN RISK. PROVIDER'S SERVICES ARE PROVIDED "AS IS". PROVIDER DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. PROVIDER DISCLAIMS ANY WARRANTIES REGARDING PROVIDER'S SERVICES, INCLUDING THAT THEY WILL MEET CLIENT'S REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. PROVIDER DISCLAIMS ANY WARRANTIES REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF PROVIDER'S SERVICES, INCLUDING RESULTING SALES AND WEB TRAFFIC. PROVIDER DISCLAIMS ANY WARRANTIES REGARDING THE MARKETING OF CLIENT'S PRODUCTS, SERVICES, SALES, OR WEBSITE. PROVIDER DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH PROVIDER'S SERVICES, OR LINKS PROVIDED BY PROVIDER'S SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE PROVIDED BY PROVIDER OR OBTAINED THROUGH LINKS PROVIDED THROUGH PROVIDER'S SERVICES.
CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF PROVIDER'S SERVICES ARE DONE AT CLIENT'S OWN RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO CLIENT'S COMPUTER SYSTEM OR LOSS OF DATA OR OTHER LIABILITY THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT.
38. Limitation of Liability
CLIENT UNDERSTANDS AND AGREES THAT PROVIDER, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OF OR INABILITY TO USE PROVIDER'S SERVICES, RELIANCE ON PROVIDER'S SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF PROVIDER'S SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD-PARTIES). THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM PRODUCTS OR SERVICES PURCHASED OR OBTAINED, MESSAGES RECEIVED, TRANSACTIONS ENTERED THROUGH PROVIDER'S SERVICES, OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT'S DATA OR TRANSMISSIONS AND ANY STATEMENTS OR CONDUCT OF A THIRD PARTY OR ANY OTHER MATTERS RELATING TO PROVIDER'S SERVICES. SUCH LIMITATION SHALL FURTHER APPLY, WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED IN ANY WAY TO PROVIDER'S SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CLIENT.
Without limiting the foregoing, under no circumstance shall Provider be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, or other casualties, illness, accidents, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third-parties, or loss of or fluctuations in heat, light or air conditioning. Provider's full and complete liability, for any reason whatsoever, shall be limited to the full refund of all monies paid to Provider.
39. Tort Claims and Other Claims
Client waives all tort claims, strict liability claims and any and all other legal and equitable claims to the extent permitted by law against Provider, its subsidiaries, affiliates, officers, employees and agents. The relationship between the parties is contractual in nature only. Client waives any tort claims that arise by act, or omission. Client further agrees that it may only bring claims against Provider in Client's individual capacity and not as a member of a class.
Client agrees to defend, indemnify and hold harmless Provider, its directors, officers, employees and agents from and against all claims and expenses, including attorneys' fees that may arise or result from any content Client submits, posts, transmits or makes available through Provider's services, from any product sold by Client, its agents or employees or assigns, from any service provided or performed or agreed to be performed by Provider or from Client's breach or violation of the TOS, including any obligation, representation, or warranty made herein, or Client's violation of any rights of another. Client further agrees to defend, indemnify and hold harmless Provider, its directors, officers, employees and agents from and against all claims and expenses, including attorneys' fees, arising from or related to contracts, representations, agreements, promises, etc., made between Client and third-parties, or arising from or related to Client's negligence toward third-parties.
Unless otherwise specifically provided, all notices required or permitted by this Agreement shall be in writing and in English and may be delivered personally, or may be sent by E-mail, facsimile or certified mail, return receipt requested, to the address set forth on the Contact page of Provider's web site.
42. Contacting Provider
The Provider may be contacted at any time using the Contact page of the Provider's web site. The Client may also receive further contact information as far as E-mail addresses, telephone numbers, fax numbers, and hours of availability once a contract is signed. Client may visit our website at http://www.danielwmoore.com/tos/ at any time.
43. Negative Comments/Slander
Client specifically agrees not to engage in negative comments or slander regarding Provider, including, but not limited to, publishing, or causing to be published, complaints or derogatory comments regarding Provider in any format, including, but not limited to, print, newspaper, television, radio or on Internet complaint sites, blogs or other public Internet forums. Should there be a breach of this condition, Provider will be entitled to liquidated damages in the amount of $2,500.00 for each publishing or posting. If said breach occurs on an Internet complaint site, each hit to that website will be considered an individual breach of this condition and subject to additional liquidated damages of $100 per occurrence. Further, Provider shall be entitled to litigate this matter, and obtain the money damages together with injunctive relief. The prevailing party to that litigation shall be entitled to an award of attorney's fees.
44. Severability; Waiver
In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. The failure by Provider to avail itself of any right or enforce any obligation of this agreement shall not be deemed to be an ongoing waiver of such right or obligation or of any other right or obligation.
This agreement shall be governed exclusively by the laws of the State of Mississippi, USA, without regard to any conflicts of law provisions thereof, as a contract entered into and performed entirely within the State of Mississippi. The parties hereby expressly disclaim the application of the United Nations Convention on the International Sale of Goods. Any disputes between the parties relating to the subject of this agreement shall be submitted exclusively to the jurisdiction of the state or federal courts located in the State of Mississippi, County of Lafayette, and the parties expressly consent to personal jurisdiction and venue therein and waive any objection based on forum non conveniens or otherwise.
Notwithstanding the foregoing, in lieu of litigation, arbitration may be used as a means of resolving disputes. Arbitration would be through a neutral third-party arbitrator to be approved by both Client and Provider. If any court sitting outside the United States determines that the litigation forum or arbitration provisions of this agreement are invalid, then and only then, the parties agree to settle any dispute through binding arbitration by three arbitrators, in the English language, under the commercial arbitration rules of the International Chamber of Commerce, with the location of the arbitration to be in a neutral jurisdiction (not the country of residence of the Client or of Provider) as selected by Provider.
Provider may investigate any reported violations of this agreement, its policies or any other complaints and take any action it deems appropriate to protect its systems, facilities, Clients, and/or third-parties.
48. General Information
This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior oral or written agreements (including, but not limited to, any prior versions of the TOS). Any modifications to this agreement must be in writing and signed by an authorized officer of Provider. All representations not in writing are null and void. Written agreements may include, but are not limited to, E-mails and electronic acceptance of this Terms of Service.
Client agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of Provider's services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect.