Patty Rose Enterprises
Terms of Service
Last Revised April 19, 2016
These Terms of Service (“Terms of Service”) are binding on Client with respect to certain work and services performed by Patty Rose Enterprises (“PRE”) in connection with Client’s website. By engaging PRE to perform the services, Client agrees to these Terms of Service.
The Client – the entity or individual that enters into a contract with Patty Rose Enterprises (“PRE”).
Content – the content, copy, graphic images, photographs, videos, sound recordings, media, registered company logos, names and trademarks or any other material Client supplies to PRE for inclusion on the Website.
Domain Name – the root address of a website, e.g. www.webaddress.com. All such names must be registered with the appropriate naming authority, which will usually charge a fee.
Downtime – time when the website is not accessible via the Internet. This may be because of a technical failure of the Host or because work is being carried out on the site.
Host – the company on whose system the Website physically resides.
Link, Hyperlink – a ‘clickable’ link embedded on a web page which may take the form of a graphic or text.
PRE – Patty Rose Enterprises, the service provider.
Search Engine – a website which contains a directory of websites on the Internet enabling users to find websites by subject matter classification.
Website – a collection of web pages and associated code which forms an integrated presence.
The Work – the subject matter of the contract between the Client and PRE.
2.1 Fee Payable
Payment is in advance for standard services costing $700 or less. For larger, custom projects we require a 50% non-refundable deposit before the project begins, 30% upon approval of design and the remaining 20% upon completion. The agreed fee does not include the cost of domain registration, hosting set-up fee or hosting unless the product description describes otherwise, or both parties agree otherwise in writing. All payments of fees are non-refundable.
2.2 Maintenance Fees
Ongoing maintenance is not included in the project. We do have maintenance plans available. If you feel that you would like a maintenance plan, please contact us to make such arrangements. In the absence of our written commitment to provide a maintenance plan for your specific website, no maintenance will be provided, and Client is fully responsible for all maintenance of their website.
3.1 Third Parties
PRE is not responsible for services provided by third parties through us or otherwise, including the Hosting of the Client’s Website and renewals of Domain Names. Client will not hold PRE responsible for Website Downtime or loss of business caused by third parties.
3.2 Maintenance and Correction of Errors
Unless a maintenance agreement is in place, PRE is not responsible for the functionality or maintenance of the Website after the Work has been completed. Errors (both technical and typographical) attributable to PRE will be corrected free of charge, but PRE reserves the right to charge a reasonable fee for correction of errors for which PRE is not responsible, including, but not limited to errors, problems, or malicious modifications of the Website by third parties, and typographical errors and other problems with materials provided to PRE by Client. PRE also reserves the right to not fix any such errors or problems upon conclusion of the project. Unless otherwise agreed to in writing, Client is solely responsible for backing up and keeping a copy of the Website.
3.3 Extent of Work
Installation on the Internet is limited to the uploading of all necessary files to the Host, and testing of functionality. No registration of the Website with Search Engines will be undertaken unless otherwise agreed to with the Client. SEO and other Search Engine functions will not be applied unless an SEO agreement has been agreed to, and PRE has received payment for it.
3.4 Consequential Loss
Under no circumstances will PRE be responsible or liable for financial, consequential, or other loss or damage, including lost profits, caused by the failure or use or misuse of its software, web sites and/or all other technologies and products. The Client is solely responsible for ensuring that data on their site is regularly backed up and that a contingency plan is in place to minimize possible losses as a result of software or hardware failure. Client understands that it is the inherent nature of websites that over time they will experience Downtime, outages, and failures that must be corrected. Client accepts full and sole responsibility for all such Website failures, their costs and losses, and their recurring need to be repaired. PRE is not responsible for any Downtime, outages, or failures, even if Client has retained PRE to perform maintenance services or backup services on Client’s behalf. In all circumstances, Client is solely responsible for maintenance and backup of its Website.
3.5 Status and Duration of Offers
Proposals and offers for custom website design and development services are valid for a period of one month from the date issued. PRE is not bound to honor offers that have expired. Offers are not legally binding until an acceptable timetable for the work has been agreed by both parties in writing. This timetable must be agreed to within the month that the offer is valid. If an acceptable timetable has not been approved by both parties within one month of the offer being made, the offer is deemed to have expired.
3.6 Search Engine Listings
PRE does not guarantee listings on Search Engines, and the Client accepts that it is Search Engines and not PRE that determine who they will and will not list. The Client further understands there is no guaranteed placement or rank on the Search Engines and that a new website may never even appear on Search Engines at all. PRE does not control Search Engines’ algorithms and huge shifts can appear daily, weekly and even hourly. While PRE apply its knowledge of Search Engine optimization, algorithms, key words, and marketing concepts to improve a Client’s visibility within Search Engine results, PRE cannot guarantee any particular result.
PRE does not guarantee, and specifically disclaims, the following: (i) web site backups will be successful every or any time, and (ii) that PRE will retain a copy of any backups or that those backups will be usable for future use. PRE is not liable nor responsible, in any manner, for any damage or loss of any files, information or any server data during or resulting from Website backups or otherwise. Should any damage occur, PRE will act in good faith and use best efforts to attempt to resolve the issue, however, PRE cannot guarantee the safety of Client’s content or data on the Website. Client is solely responsible for the safety of Client’s content, data, and Website, and making sure that it is properly backed up.
3.8 Maintenance Agreements
PRE reserves the right to change the terms of any and all maintenance agreements at any time, for any reason, without prior notice. These changes may affect current contractual agreements.
PRE provides 30 days of basic technical support without charge after a website is published. Once this 30-day period has expired, however, PRE will have no responsibility or liability with respect to the website or its functioning, and Client will have sole responsibility for the website. PRE may be available to assist Client with certain website issues and support that occur after expiration of the 30-day period, but this is subject to mutual agreement of the parties, including Client’s acceptance of additional charges for PRE’s technical support.
4. COMPLETION OF WORK AND PAYMENT
4.1. Completion of Work
PRE will complete the Work in accordance with these Terms of Service and any written specifications previously agreed to with Client. The agreed completion date for the Work is approximately 30 to 60 days for standard WordPress websites and 60 to 90 days for standard E commerce websites. If the Work is a custom design and/ or development project, the delivery schedule will be agreed to between the parties prior to the start of the project. PRE will not charge more than the amount previously agreed unless the Client has varied the specifications of the Work since the agreement. PRE will not undertake changes to the specifications of the Work which would increase the cost, without prior written authorization from the Client.
4.2. Supply of Materials and Content
The Client will supply all Content, materials and information required for PRE to complete the Work in accordance with the agreed specification. Such materials may include, but are not limited to, the following: digital photographs, written copy, logos, video files, and other printed materials. Where the Client’s failure to supply such materials leads to a delay in completion of the work, PRE has the right to extend previously agreed deadlines for the completion of the Work by a reasonable amount. Where the Client’s failure to supply materials prevents progress on the Work for more than 7 days, PRE has the right to invoice the Client for any part or parts of the Work already completed. Where the Client’s failure to supply materials prevents PRE from completing the Work within 30 days of the anticipated completion date of the Website or other project, PRE has the right to invoice the Client for the full balance due. In no event will PRE’s obligation to complete the Work extend beyond three months after the anticipated completion date of the Website or other project.
4.3 Approval of Work
On completion of the Work, the Client will be notified and have the opportunity to review it. The Client should notify PRE in writing of any unsatisfactory points within seven (7) days of receipt of such notification. Any of the Work which has not been reported in writing to PRE as unsatisfactory within the 7-day review period will be deemed to have been approved. Once approved, or deemed approved, work cannot subsequently be rejected, and the contract will be deemed to have been completed and the remaining payment under Clause 2.1 Fee Payable will become due (if applicable such as in the case of custom design and/or development projects). The Contract will remain in effect until all obligations have been completed in terms of this Clause.
4.4 Rejected Work
If the Client rejects the Work within the 7-day review period, or will not approve subsequent Work performed by PRE to remedy any points reported by the Client as unsatisfactory, and PRE considers that the Client is unreasonable in Client’s repeated rejection of the Work, the contract will be deemed to have expired and PRE can take any legal measures to recover both payment for the completed Work and reasonable expenses incurred in recovering payment.
Upon completion of the 7-day review period, PRE will invoice the Client for the remaining balance of payment due in accordance with Clause 2.1 Fee Payable hereof (if applicable), which, in the absence of agreement to the contrary, is to be paid by the Client within seven days of the date that the invoice was issued. This clause usually applies only for custom design and/or development projects where the fee is broken up into separate payments.
4.6 Remedies for Overdue Payment
If payment has not been received by the due date, PRE has the right to suspend ongoing work for Client and hosting services, if applicable, until such time that full payment of the outstanding balance has been received. If full payment has still not been received after the final reminder due date, PRE has the right to replace, modify or remove the Website and revoke the Client’s license of the Work until full payment has been received. By revoking the Client’s license of the Work or removing the web site from the Internet, PRE does not remove the Client’s obligation to pay any outstanding monies owing.
4.7 Footer Credit
The small credit and link in the footer of a website, “Designed by Patty Rose,” is an important source of referral business for PRE. We understand that a few clients may have a strong desire not to provide such credit. In such cases, PRE requests that Client pay PRE a fee of $250 as fair compensation to remove the credit and forgo potential lost referral revenues.
4.8 Full Payment
When full payment is made it represents the client is satisfied with the work provided by PRE.
5. INTELLECTUAL PROPERTY
5.1 Offers and Proposals
Offers and proposals made by PRE to Client or potential clients will be treated as trade secrets and remain the property of PRE. Such offers and proposals or the information contained within them will not be passed to third parties or publicly disseminated without prior written authorization from PRE. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.
5.2 Warranty by Client as to Ownership of Intellectual Property Rights
Client warrants and represents that it has all of the necessary rights to use the Content on the Website, that the Content will not violate or infringe on the rights of any third party, and that the Website will only be used for lawful purposes. Client agrees to defend, indemnify and hold harmless PRE from any claims or legal actions with respect to Client’s breach of these warranties and representations. PRE is not liable or responsible for any of the Content on Client’s Website.
5.3 Domain Name
Any Domain Name obtained will belong to the Client if that registration has been paid for in full either separately or as part of a website design project. The Client agrees to indemnify PRE, including any incidental costs, against any claims that a Domain Name applied for, or obtained, violates the intellectual property rights of a third party. The Client warrants that the domain name sought is not a trademark of a third party or confusingly similar to such trademark.
Once PRE has received full payment of all outstanding invoices and the Work has been approved by the Client in accordance with Clause 4.3 hereof, the Client will be the owner of the Website and PRE’s custom work and developments for the Website. The custom code which provides the extended functionality of the website, e.g., the non-standard WordPress or Profiler code, will remain the copyright of PRE, and the Client will be granted a non-exclusive perpetual, royalty-free license to use it. PRE may re-use the code without limitation, and Client is prohibited from selling the code as its own intellectual property.
5.5 Trade Secrets
Any code that is not freely accessible to third parties and not in the public domain, and to which PRE or its suppliers owns the copyright, may not be copied, published, distributed or passed to any third parties in any form without prior written consent from PRE. Unless previously agreed otherwise in writing, no modifications may be made by the Client or any third party to code to which PRE or its suppliers owns or licenses the copyright to. PRE acknowledges the intellectual property rights of the Client. Information passed in written form to PRE and that the Client has indicated is confidential or a trade secret, will not be published or made available in any other way to third parties without the prior written consent of the Client.
6. RIGHTS AND RESPONSIBILITIES
6.1 Right to Terminate
PRE reserves the right to refuse or terminate a contract without prior notice, if it is believed that the Client, their Website, or any material is illegal, immoral or otherwise unacceptable. If the Client breaches any of its obligations set forth in these Terms of Service, PRE reserves the right to terminate its agreement with Client and no payments shall be refunded. If the Client fails to respond to PRE or any of its workers within 10 days of a contact attempt, the Client shall be considered idle and the Client’s project shall no longer be a priority until further notice. PRE also reserves the right to terminate any and all work obligations and contracts agreed to by that Client if they fail to respond within 10 days. Any money paid will not be refundable and PRE reserves the right to collect the remaining funds on that project whether the project has been completed or not.
6.2 Events Beyond the Control of Patty Rose Enterprises.
PRE will not be liable for breach of contract where that breach was due to software, hardware or electrical failure, natural events such as fire or other Force Majeure events beyond the control of PRE.
6.3 Supply and Pricing of Services
PRE reserves the right to use whoever it feels appropriate at the time for third party software and services, and to alter its prices as necessary without prior notice and without affecting existing contractual pricing agreements.
7.1 Choice of Law and Jurisdiction
All disputes arising under these Terms of Service shall be governed by the laws of New York, and the venue and jurisdiction for any legal action or claim arising hereunder must be brought in federal or state court of New York County. Each party consents to the jurisdiction of such courts and agrees to accept service of process with respect to any legal action brought by the other party.
7.2 Survival of Contract
Where one or more terms of these Terms of Service are held to be void or unenforceable for whatever reason, any other terms of the contract not so held will remain valid and enforceable at law.
7.3 Change of Terms of Service
These Terms of Service may change from time to time. The Client is responsible for reading PRE’s Terms of Service at reasonable intervals such as before they sign and agree to any and all contracts and/or make any and all payments. The Terms of Service are subject to change without prior notice.
8. TERMS OF SERVICE ARE BINDING
8.1 Signed Agreement
Client will sign an agreement that these Terms of Service are binding on Client with respect to all work performed by PRE on behalf of Client. Regardless of whether Client signs such an agreement, these Terms of Service are binding on Client.
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