Terms and Conditions
Effective Date: September 1, 2016
We may modify and change the terms of this Agreement at any time, in our sole discretion. If we do so, we will let you know by posting the modification onto our Site. Please review the modifications, because if you continue to use our Site after we have posted the modified Agreement, you are indicating to us that you agree to be bound by the modified Agreement. We may change our discontinue all or any part of our services, at any time and without notice, at our sole discretion.
The formation, construction, performance and enforcement of the Agreement shall be in accordance with the laws of the State of California without regard to its conflict of law provisions.
Scope of Service
Agency shall provide only those professional services and/or products specified in the Agreement. Client understands and agrees that, unless listed in the Agreement, Agency is not responsible for any other work or scope of supply or any disclosure, notifications or reports that may be required to be made to third parties, including appropriate governmental authorities. If Client requests and Agency agrees to perform any services that are in addition to or outside the scope of Work identified in the Agreement, Client shall promptly pay Agency for such services in accordance with the terms and rates shown in the Agreement or, if no such terms or rates are shown in the Agreement, in accordance with Agency's standard terms and rates for the services performed.
Client represents and warrants to Agency that: (1) it owns, or has acquired the express written authority to use all of the content Client gives to Agency, ("Client Content"); (2) Client Content does not contain any obscene, threatening, harassing, vulgar, defamatory, libelous, infringing or unlawful content; (3) Client Content does not infringe upon nor violate the rights of any third party, including copyrights and trademarks; (4) there are no claims against Client regarding Client Content; and (5) Client will at all times ensure that it is in compliance with the terms and conditions of any licensing contracts between Client and a third party.
Client's Ownership and Agency's Ownership
Once payment is received, Agency grants all rights to content produced for Client exclusively to Client, excluding third party components. Notwithstanding the foregoing, Agency retains the right to display graphics and other Web content elements as examples of Agency's work. Agency shall own, and retain all intellectual property rights in all preexisting material, information, know-how and data created.
Access to Site and Information
Client will provide for right of entry and access to all relevant sites, equipment and other information in its control or possession as is necessary for Agency to timely and fully complete the Work. Agency is not responsible for the quality or accuracy of data or information, nor for the methods from which the data was developed, where such information or data is provided by or through Client or others that are not agents or Agency, and Agency has no obligation to investigate facts or conditions not disclosed to it by Client.
Maintenance and Support Subscription and Retainer Packages
(a) Our Maintenance and Support Subscription and Retainer Packages can consist of, but are not limited to:
- text changes
- simple maintenance and/or addition of graphics provided by the Client to an existing web page
- simple navigational changes
- simple page design changes
- addition of new pages
- answering Client's technical questions relating to the Website, its operation
- resolving technical issues that arise in relation to the Website or its operation
- performing security scans, malware scans, broken link checks, and debugging of issues discovered
- downloading and applying of updates to WordPress software and any plugins featured on the Website
- creating a backup of the Website database and files and restoring the Website using the latest backup if required; and
- sending the Client a report of work completed during the previous payment period.
(b) Our subscription and retainer services do not include resolving:
- issues that relate to your networks, computer systems or software used to access the Website;
- other technical issues not arising directly from the Website.
(c) If we provide you with services that are not included in the subscription and retainer services, we will charge you for the work at our current standard hourly rates.
(d) You must provide us, at your own cost, access to the Website and your computer network and systems in order for us to provide the Maintenance and Support Subscription and Retainer Packages service. If you do not provide us with such access within a reasonable time after we request it, then:
- we are not obliged to provide you with any services;
- we are not obliged to return to you any portion of the Fees that you have paid to us for the provision of aforementioned services; and
- an invoice will be issued for any work carried out.
(f) Reduced hourly rate requires that the contract be in place for the full term of any work undertaken - work undertaken outside of the contract period will be charged at our standard hourly rates. (Maintenance and Support Subscription and Retainer Packages work does not generally include major website design or website development tasks, but this can be assessed in consultation on a case by case basis.) Pricing is available on request.
(g) Maintenance and Support Subscription and Retainer Packages provision is dependent upon access to the Website to perform the required tasks and to assess/view the requirements.
(h) Response times are indicative and not guaranteed.
(i) Work time is accrued in 5 minute increments.
(j) Estimated time to complete requested services will be provided before commencement of services.
(k) Commencement of services
- Services will commence upon receipt of written request by Goose Dog Designs from the Client and confirmation of time estimate provided for the specific work from Goose Dog Designs to the Client.
- Maintenance and Support Subscription and Retainer Packages work is limited to the Client Website built by Goose Dog Designs.
Client's failure to pay on time constitutes a material breach of contract by Client permitting Agency to suspend its performance hereunder; additionally, Agency shall have all other remedies permitted to Agency by law, equity and these terms. Agency reserves the right to apply interest charges at 12% APR on any past-due invoice. If Client has provided Agency with a credit card authorization, Agency shall be entitled to charge the invoice amount and interest against such card. Client will be responsible for all collections costs, including reasonable attorney's fees, incurred by Agency as a result of any collection process or proceeding.
Notice and Notice of Cancellation:
Agency or Client may cancel this Agreement in advance by delivering written Notice of Cancellation to the other party at the address provided at least sixty (60) days prior to the requested cancellation date. Any notice ("Notice") shall be deemed sufficient if addressed in writing and mailed to the party's address listed in the Agreement or emailed to an authorized representative, provided such notice confirms the date of receipt.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, AGENCY'S SERVICES ARE PROVIDED "AS IS." AGENCY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. AGENCY DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT'S SPECIFIC REQUIREMENTS OR THAT THE SERVICES WILL BE COMPLETELY ERROR-FREE, COMPLETELY SECURE OR UNINTERRUPTED. AGENCY SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF TELECOMMUNICATIONS SYSTEMS, THE INTERNET, SEARCH ENGINES, SOCIAL MEDIA SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMTION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF AGENCY. CLIENT ASSUMES ALL RISKS RELATED TO PROCESSING OF TRANSACTIONS RELATED TO ELECTRONIC COMMERCE. CLIENT'S SOLE REMEDY FOR A BREACH OF THE FOREGOING WARRANTY IS TO REQUIRE AGENCY TO CORRECT OR REPLACE, AT AGENCY'S ELECTION, THE AFFECTED SERVICE IF CLIENT GIVES NOTICE TO AGENCY OF SUCH BREACH WITHIN 6 MONTHS FROM THE DATE THE AFFECTED SERVICES WERE PROVIDED.
LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO EACH PARTY'S INDEMNITY OBLIGATIONS HEREUNDER, BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS AND/OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL AGENCY, IT'S OWNERS, OFFICERS, OR EMPLOYEES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR PROFESSIONAL ERRORS OR OMISSIONS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON AGREEMENT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. AGENCY, ITS OWNERS, OFFICERS, OR EMPLOYEES' CUMULATIVE LIABILITY TO CLIENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AGENCY BY CLIENT PURSUANT TO THE PREVIOUS THREE MONTHS OF THE AGREEMENT. AGENCY SHALL NOT BE LIABLE TO CLIENT OR CLIENT'S REPRESENTATIVES FOR ANY HARM RESULTING FROM ANY USE OF CONFIDENTIAL INFORMATION.
Client agrees to defend, indemnify and hold harmless Agency from and against any and all claims, liabilities, suits, actions, proceedings, demands, damages, losses, costs, and expenses, including reasonable attorney's fees, based upon a third party claim arising, directly or indirectly, out of the Client Content.
Your use of the Site is subject to any and all additional terms, policies, rules or guidelines applicable to our services or certain features of the Site that we may post or link to on the Site (collectively, the "Additional Terms"), such as end-user license agreements, or other agreements or rules applicable to particular features, promotions or content on the Site. All such Additional Terms are hereby incorporated into this Agreement by reference.
Violations of the Agreement
We reserve the right to seek all remedies available at law and in equity for violations of the Agreement.
You acknowledge and agree that your access to and use of the Site is subject to all applicable international, federal, state and local laws and regulations. The terms, conditions and policies contained in this Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. Client consents to the jurisdiction of such California courts (and appellate courts) and by agreeing waives the right to object to California venues or jurisdiction. Client also consents to in personam jurisdiction (personal jurisdiction) and agrees that service by registered mail, return receipt requested, is sufficient.
How Disputes will be Resolved/Legal Issues
You agree that all claims, disputes or disagreements that may arise out of the interpretation or performance of this Agreement, or that in any way relate to your use of the Site, shall be submitted exclusively to binding arbitration, except that each party retains the right to bring individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and us are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Agency otherwise agree in writing, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will service any termination of this Agreement. You further acknowledge that any claim arising under this Agreement will be brought within one year of its accrual or it will be waived.
The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be San Francisco, California. California law shall apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
If Agency prevails in any dispute arising out of this Agreement, Agency will be entitled to reimbursement for its expenses and costs (including attorneys' fees), regardless of whether any legal action is filed. Client acknowledges that if the remedy at law for any breach, or threatened breach, of this Agreement is by its nature inadequate to compensate Agency for the damages that are certain to result then Agency may seek temporary and/or permanent injunctive relief (an official order to stop!), and any other available equitable relief and/or damages, without any requirement to obtain a bond or prove monetary damages.
Neither party shall be liable for any default or delay in the performance of its obligations under this Agreement to the extent such default or delay is caused, directly or indirectly, by reason of fire, earthquake, labor dispute (other than labor disputes of such party or its independent contractors and its employees), act of God, acts of terrorism, or any local, state, federal, national or international law, governmental order or regulation or any other event beyond a party's reasonable control.
Each provision of the Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision is held invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision. Indemnification, Client's Ownership and Agency's Ownership and shall survive termination or cancellation of the Agreement.
For questions regarding our Standard Terms and Conditions, please email valerie [at] goosedogdesigns.com