Terms of Agreement
The above-named Client is engaging Kethyr Solutions, located at PO Box 60022, Palo Alto, CA 94306, as an independent contractor for the specific project of designing, updating, developing, writing, hosting, and/or marketing Web pages. Kethyr Solutions will host, design, update, develop, and/or market these pages, for a dollar amount mentioned in this contract.
The Client shall own all rights to any graphic art files and text-based files ("native files") developed for the Client's use in this project to generate HTML pages, Web-optimized text or graphics, PDFs, and Web-ready files of a similar nature. Native files include MS Word docs, as well as BBEdit, Photoshop, Illustrator, and Fireworks files and other files in a similar, customary format intended for the development of websites. These files will be made available to the Client upon request within the contract period and for a period of within three years after the end date of the contract's term.
ADDITIONAL STANDARD CONTRACT TERMS
- SEM No Guarantee: Due to continuing changes in search engine technology and the vast differences in the way each search engine works, Kethyr Solutions (the "Developer") is unable to guarantee exact placement in any search engine, nor can we predict with certainty how long your website may retain its placement. The Client understands and agrees that Internet marketing, as with all forms of marketing, entails an element of risk, and that through this contract there is no guarantee, express or implied, that any marketing work performed on the Client's behalf by Kethyr Solutions will result in a higher Google PageRank quotient, better search result rankings for targeted keywords, improved visitor traffic to the Client's website, or increased revenues.
- Additional Expenses: The Client agrees to reimburse Kethyr Solutions for any additional expenses necessary for the completion of the work. Examples would be: purchase of special fonts, stock photography, etc. Kethyr Solutions will inform Client prior to purchasing any additional expense items, and will purchase said expense items only upon the express written or verbal approval of the Client.
- Additional Services: Any revisions, additions, or redesign Client wishes Kethyr Solutions to perform not specified in this document shall be considered "additional" and will be billed at our standard rate for the particular service.
- Copyrights and Trademarks: The Client represents to Kethyr Solutions and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Kethyr Solutions for inclusion in Web pages are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Kethyr Solutions and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
- Limited Liability: Client hereby agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the Web Hosting Service or Host Server. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, any harassing and harmful material or uses, any illegal activity, or material advocating illegal activity, and any infringement of privacy or libel.
Client hereby agrees to indemnify and hold harmless Kethyr Solutions from any claim resulting from Client's publication of material or use of any materials. Kethyr Solutions may or may not give notice before deactivating the use of an account that we decide is an abusive or unethical use of, or a potentially illegal use of the Web hosting account or host server. Client hereby agrees to indemnify and hold harmless Kethyr Solutions in any claim resulting from the submission of illegal materials.
Under no circumstances, including negligence, shall Kethyr Solutions, its offices, agents, or anyone else involved in creating, producing, or distributing its services, be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use Kethyr Solutions' services; or that results from mistakes, omissions, interruptions, deletion, or loss of files or data, errors, defects, delays in operation, or of performance, whether or not limited to acts of God, communication failure, theft, destruction, or unauthorized access to Kethyr Solutions' records, programs, or services.
Notwithstanding the above, Client's exclusive remedies for all damages, losses, and causes of actions, whether in contract, tort, including negligence, or otherwise, shall not exceed the aggregate dollar amount which Client paid during the term of this Agreement and any reasonable attorney's fees and court costs.
- Indemnification: Client agrees that it shall defend, indemnify, save, and hold Kethyr Solutions harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorney's fees ("Liabilities") asserted against Kethyr Solutions, its agents, clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Client, its agents, employees, or assigns. Client agrees to defend, indemnify, and hold harmless Kethyr Solutions against Liabilities arising out of any injury to persons or property caused by any products or services sold or otherwise distributed in connection with Kethyr Solutions' services, any material supplied by Client infringing on the proprietary rights of a third party, copyright infringement, and any defective product which Client has sold.
- Laws Affecting Electronic Commerce: The Client agrees that the Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Kethyr Solutions and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client's use of Internet electronic commerce.
- Authorship Credit: Client agrees that Developer may put a byline link on the bottom of Client's Web pages with wording that accurately states the true extent of Developer's contribution to developing the site, e.g., "Website Designed and Hosted by Kethyr Solutions"; or "Internet Marketing by Kethyr Solutions."
- Server Access: Clients may add, update, and delete content on their Kethyr Solutions site via the administrative tools. A Kethyr Solutions site contains no client serviceable components other then what can be accessed through the Kethyr Solutions administrative tools. Due to PCI (payment card industry) security compliance the client will not be granted FTP access to commerce servers in Kethyr Solutions' data center. SFTP access will be granted to clients who have dedicated hosting services provided by Kethyr Solutions.
- Kethyr Solutions Ownership: Websites designed, written, and marketed by Kethyr Solutions are the intellectual property of Client. The client may migrate a Kethyr Solutions website from Kethyr Solutions' data center at any time. Should the client wish to discontinue the use of Kethyr Solutions hosting services, native graphic design files will be available to the client upon request. Kethyr Solutions stores native art files for a period of 1-year for inactive clients. Clients also have access to download their content via the Kethyr Solutions administrative tools.
- Confidentiality: Client and Developer acknowledge and agree that the Specifications, including programming and other information related to the development of custom applications created for the Client (the "Confidential Information"), will constitute a valuable trade secret of the Developer. Client shall keep the Confidential Information in confidence and shall not, at any time during the term of this Agreement, or for a period of three years after the term of the Agreement, without Developer's prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information. Mutually, the Client shall not discuss confidential information, such as pricing, with any other person. Excluded from the "Confidential Information" definition is anything that can be seen by the public on the website when each page of the website is first accessed.
- Use of Website for Promotional Purposes: Developer agrees not to use the Client's website for promotional purposes and/or to cross-link it with other sites developed by Developer, without the express written permission of Client; with the exception that Developer may include a byline link as well as a small logo graphic on the bottom of Client's Web pages with wording that accurately states the true extent of Developer's contribution to developing the Client's website, as well as wording and links similar to the following: "Internet Marketing, Ecommerce Solutions, Content Management Tools."
- No Responsibility for Loss: Be assured that the Kethyr Solutions data center has a track record of nearly 100% "up" time, and it is well-insulated (using a Cisco 515 firewall and by taking other protective measures that are considered standard and reasonable in the industry) against hackers and other malicious parties, as well as against fire, theft, water damage, power loss, electrical power surge, and other perils that might affect a data center. However, the Developer is not responsible for any costs associated with downtime, improper links, or any other loss to the Client that may occur in the operation of their website, including loss of data. Specifically, if any hardware or software in the Kethyr Solutions data center, for which the Developer has exclusive responsibility and that is under the Developer's direct control, experiences a crash or other type of outage or failure, causing the Client's website to go offline temporarily, the Developer will be responsible for making every reasonable effort within its power to bring the site back online as quickly as possible and restore full functionality to the site. The Client will hold Developer harmless for any such outage or failure, or the financial or operational consequences of such an outage or failure.
Nevertheless, if three or more such outages or failures occur within a 30-day period, with each such outage lasting 8 or more consecutive hours, Client has the right to terminate this contract without penalty; and, if they do terminate the contract, they will be reimbursed a pro-rated portion of the total hosting fee for the remaining period of the contract. In addition, in the case of cancellation of this contract for any reason due to the Developer's failure to act responsibly to maintain the functionality of the Client's site, it will be the Developer's responsibility to provide all reasonable assistance to the Client to help them migrate the files composing their website to a new data center of the Client's choice. Note that this provision of the contract does not extend to any upstream bandwidth or "backbone" provider (e.g., Sprint, Time Warner, etc.) that Kethyr Solutions may rely on now or in the future for connectivity from its data center to the Internet. Like the Developer's data center, this component of the Developer's Web hosting capabilities has near-100% reliability; however, the Developer cannot be responsible for temporary website outages stemming from third-party hardware or software failures.
- Non-Disclosure: Kethyr Solutions, its employees, and subcontractors, agree that, except as directed by Client, it will not at any time during or after the term of this Agreement disclose any Confidential Information to any person whatsoever.
- Cancellation or Work Postponement: In the event that Work is postponed by lack of response from the Client for thirty days or more or a postponement is requested by the Client for other circumstances or Work is Cancelled at the request of the Client by letter, Kethyr Solutions shall have the right to bill pro rata for work completed through the date of that request or postponement at the company's then, current standard hourly rate, while reserving all rights under this Agreement. If additional payment is due, this shall be payable within thirty days of the Client's notification to stop Work.
When Work is postponed, Kethyr Solutions bears additionally burdens to restart a project, reinstate and reassign resources, and resurrect previously determined plans and project objectives. Because of this additional burden, Kethyr Solutions requires a $250.00 "Reinstatement Fee" to restart Work that has been postponed by the client due to unresponsiveness or due to a postponement request from the Client. In the event of cancellation, the Client shall provide in writing and also pay any expenses incurred by Kethyr Solutions, and Kethyr Solutions shall own all rights to the Work. The Client shall assume responsibility for all collection of legal fees necessitated by default in payment.
- Hosting Account Cancellation: The following applies to all Kethyr Solutions hosting services including but not limited to: Kethyr Solutions website hosting, domain hosting, database hosting, custom application hosting, semi-dedicated, dedicated, and collocated server hosting, and PayGate services.
- Refund Policy: If the Client applies by letter for a refund within 15 days of signing this contract, work already completed shall be billed at Kethyr Solutions standard hourly rate for the services rendered and deducted from the initial payment. If the work that has been completed is beyond the amount covered in the initial payment, the Client shall be liable to pay for all work completed at Kethyr Solutions' standard hourly rate for the services rendered.
- Arbitration: Any disputes in excess of $1,000 (or the maximum limit for small claims court) arising out of this Agreement shall be submitted to binding arbitration before a mutually agreed upon Arbitrator pursuant to the rules of the American Arbitration Association. The Arbitrator's award shall be final, and judgment may be entered in any court having jurisdiction thereof. The Client shall pay all arbitration and court costs, reasonable attorney's fees, and legal interest on any award or judgment in favor of Kethyr Solutions.
- Payment of Fees: In order for Kethyr Solutions to remain in business, payments must be made promptly. Payment terms are NET 30 unless otherwise noted on your invoice. Delinquent bills will be assessed a 1.5% finance charge if payment is not received within 30 days of the due date. If an amount remains delinquent beyond 30 days after its due date, an additional 1.5% penalty will be added for each 30 days of delinquency. Kethyr Solutions reserves the right to remove Client's Web pages from viewing on the Internet until final payment is made. If website is moved off the hosting platform there will be a $50.00 re-setup fee added. In case collection proves necessary, the Client agrees to pay all fees incurred by that process. This agreement becomes effective only when signed by Kethyr Solutions. Regardless of the place of signing of this agreement, the Client agrees that for purposes of venue, this contract was entered into in Palo Alto, California, and any dispute will be litigated or arbitrated in Palo Alto, California. Please pay on time.
In Kethyr Solutions' ongoing initiative to "Go Green," all invoicing is automatically performed electronically. This allows us to reduce paper resources. Upon a client's request, paper invoicing can be arranged. An administrative fee of $3.00 per paper invoice distributed will be applied. We apologize for any inconvenience this may cause but have adopted this policy in efforts to do "our part" in conserving resources and the environment. We encourage our client's to embrace similar "green" practices within their own organization.
- Jurisdiction: This contract constitutes the sole agreement between Developer and Client regarding Client's Website. It becomes effective only when signed by both parties. This agreement shall be governed and construed in accordance with the laws of Santa Clara County, of the State of California.
- Merchant Services Disclaimer: Except as otherwise provided in this Agreement, you expressly agree that Kethyr Solutions shall not be liable for any loss (however occurring, including negligence) arising from or related to: 1) Your failure to properly activate, integrate, or secure your Merchant Account(s); 2) Fraudulent transactions processed through your payment gateway account(s); 3) Disruption of Kethyr Solutions or your merchant bank's services, systems, server, or website by any means; 4) Actions or inactions by any third party, including a Merchant Service Provider, Payment Processor, or Bank; or 5) Unauthorized access to: Data, customer data (including credit card numbers and other personally identifiable information) or transaction data.
- Compliance: You will comply with all laws, policies, guidelines, regulations, ordinances, or rules applicable to you, this agreement, your business, or the transactions, including a) the credit card association rules and regulations, expressly including the Payment Card Industry (PCI) Data Security Standard and b) Any regulatory body having jurisdiction over the subject matter hereof.