Terms & Conditions
Webdify will provide:
- Mobile Responsive Website (page count based on selected plan)
- Updates per month (based on selected plan)
- Secure Website Hosting (up to 5GB data transfer/month & 1 GB of digital storage)
- Free SSL Certificate
- Blog or news page
- HD Stock Images
- Social Sharing Tools
- Social Publishing Tool
- Content Management System
- Google Analytics Tracking
- Google Friendly Sitemap
- Lead Capture & Email Opt-in
- Site Backups & Security Maintenance
- Search Engine Optimization
- Email & Chat Support
- Two rounds of revisions to the Client’s website prior to publication of the site on the world wide web (“Website Launch”).
- Ongoing Customer support following the Website Launch from Webdify’s Digital Team, which includes uploading and changing photos and other content on your website (1 hour per month)
Client is responsible for:
- Supplying its own content. If it needs to be created we offer a website content service.
- Providing and/or purchasing a domain name/registration
- Being available and responsive to inquiries during the website implementation process
- Webdify cannot and does not make any guarantees regarding the performance of a client’s website, which includes, but is not limited to, sales results and SEO.
You are agreeing to the terms in this contract and agree to and will abide by Webdify’s standard terms and conditions. You are also authorizing Arca Interactive, LLC dba Webdify to process your credit card or debit your bank account in the amount of the chosen plan.
If applicable, the one-time Add-On Fees will be charged upon installation of the Add-Ons.
Bandwidth overages are charged at the rate of $0.50 per month per additional GB. Please note that this Agreement requires a minimum contract term (the “Minimum Term”) that runs from the date of the first Monthly Fee.
Early termination of this Agreement before the end of the Minimum Term will result in a lump sum termination fee equal to the total remaining monthly fees that would have been billed through the end of the Minimum Term. With respect to prepaid Fees, such Fees shall be deemed fully earned and non-refundable in the event of the early termination of this Agreement.
Standard Terms & Conditions to Webdify Customer Contract
Arca Interactive, LLC. dba Webdify (“Company”) hereby agrees to provide the Client services that were outlined in the Customer Contract (“Services”). All terms that are capitalized in this agreement, without prior definition, will have meanings in the Customer Contract. If there are any conflicts between the terms and conditions outlined herein and the Customer Contract, the Customer Contract will take precedence. Together, the Standard Terms and Conditions and the Customer Contract make up the “Agreement.”
Monthly Fees, Add-Ons, hardware charges, and any other charges or fees rendered by the Client are defined herein as the “Fees.” The Client is responsible for paying all Fees, as well as applicable sales and use tax for any Services. Unless otherwise specified, all Fees will be due prior to the start of Services. The Agreement term begins with the implementation of the Customer Contract. On this date, the Client will be responsible for the Add-On fee and the first Monthly Fee. If the Client chooses to prepay their Monthly Fees and/or their recurring Add-Ons, the prepayments will be due at the implementation of this Customer Contract. Monthly Fees will henceforth be due in advance of each calendar month. For example, if a Client’s Customer Contract is dated on the 10th of one month, then the first Monthly Fee and Add-On Fee will be due the 10th of that month, and each Monthly Fee and Add-On Fee will be due on the 10th of each month thereafter. On the other hand, if the Client elects prepayment, those Fees will be due at the signing of the Customer Contract. The Company will begin the commencement of the products (“Licensed Products”) in a manner ordered by the Client and within the specifications of the Customer Contract, upon receipt of applicable Fees. Any balance that is not paid within 30 days of the due date will have an interest charge of 1.5% added to the balance, or the maximum amount allowed by local law. Additionally, the Customer will be financially liable for all fees incurred by the Company due to bounced checks, chargebacks, insufficient funds fees, or overdrafts.
3. Production and Fulfillment.
Production of your Licensed Product will begin upon receipt of any applicable Fees. Included in each purchase are two revisions of your Website, before the official launch. Revisions and Website Edits are limited to Company policies and procedures. Should the Client request additional revisions, edits, or changes that fall outside of Company’s standard procedures or fulfillment practices, the Client may be subject to additional fees as follows: $200/hr for all services that fall outside of standard company operating procedure, and $75/hr for additional website edits and revisions.
Client Cooperation. By signing these Terms and Conditions, the Client hereby agrees to respond to Company requests in a timely manner. Any delays in response may affect the timely delivery or quality of the Licensed Products. If the Company does not hear feedback from a Client about a Licensed Product within 3 business days, the Licensed Product will be deemed acceptable. If the Client fails to respond to the Company repeatedly during the production and fulfillment process, then the Company reserves the right to terminate this Agreement and hold no further obligation to the Client. In addition, the Client will have no right of refund to the Fees.
4. Licensed Rights; Aftercare.
Granting of License. Assuming that the Client has paid all applicable Fees, and as long as Client makes all timely payments of recurring Fees, the Company grants the Client non-exclusive use of Product (The “License”) to use the product throughout the world. When the Client terminates the Agreement, assuming they have paid all applicable fees and satisfied the minimum Agreement Term, then the Company will grant the Client a license to use the photos and videos throughout the world in perpetuity. On the other hand, the client will not have rights to the source code for the Licensed Products, which includes, but is not limited to, the Website. The Client agrees that, with the exception of content provided by the Client to the Company, all intellectual property elements and rights displayed on the Licensed Product (together herein referred to as the “Company IP”) are the sole property of the Company. Examples include, but are not limited to: templates, design elements, images, scripts, sound tracks, story lines, source code, object code, music, video, still photos created or owned by the Company, search engines, Java applets, mobile application functionality, and ActiveX controls.
In the event that a Client incorporates their own materials into any Licensed Product, this will in no way affect the Company’s ownership of the Licensed Products. Additionally, the Company will not combine Client ownership of its materials, nor will the Client deprive the Company of its intellectual property ownership. The Company and Client will maintain separate copyright ownership. The Company also reserves the right to use the Company IP in any manner it sees fit, pursuant with the Client License to use the Licensed Products. The Client does not reserve the right to use the Company IP, except as part of the Licensed Product as a whole. In other words, the Client is not permitted to have separate rights to the components or source code of the Licensed Product, except in connection to the whole. In signing this Agreement, the Client agrees not to reverse engineer source code or any other section of the Licensed Product, or allow others to use the Licensed Product in any way except for those specifically laid out herein. In signing this Agreement, the Client also agrees the Company is permitted to use the Licensed Product, which includes but is not limited to content provided by the Client for the Company’s promotional purposes. Lastly, the Client agrees that the Company is permitted to include its logo and other information on the Client Website, Licensed Product, or Video, based on the Company’s exclusive discretion.
Aftercare. If the Client is entitled to Aftercare, these services will be limited to basic modifications or services which may be rendered by the Webdify team. Aftercare is defined as: time consulting with the WEBDIFY TEAM, as well as the WEBDIFY TEAM’s time spent on the following: changing photos, text modifications, site functionality, and similar services. Aftercare does not pertain to the creation of new webpages or any other Content on the Website, including design work, Photoshopping, or any other creative editing. Any Aftercare that is used in a Customer Contract does not accumulate month-to-month or roll over. If the Client requires Aftercare Services in excess of those outlined in the Customer Contract, those will be charged to the Client at a rate of $75/hr.
5. Legal Disclaimers.
The Client will be responsible for providing timely notification to the Company for any copyright, disclaimers, or applicable legal notices that the Client requires for inclusion in the Licensed Product. The Company is a service provider, this relationship to The Client is not exclusive. The Company is only responsible for supporting the content provided and is not responsible for any trademark infringements resulting from content The Client provides. The Client will indemnify The Company from third party claims.
6. Representations and Warranties.
By signing this Agreement, the Client acknowledges and warrants that the Client is the rightful and true owner or lessee of the Client’s locations, and that the Client reserves the right to authorize both the distribution and production of the Website, as well as its Video and Photography. The Client also certifies that they have the right to include all Client signage and apprentices, and all individuals therein, in all media, throughout the world, in perpetuity. The Client is solely responsible for gathering all rights and approvals, which include all Client-provided content without limitation. This excludes, however, assets that are provided by the Company. The Company is not responsible for lost revenue resulting from downtime of sites, be they ecommerce or other industries.
The Client warrants that the Client is authorized to allow the Company, its contractors, and subcontractors (heretofore collectively referred to as the “Producers”) entry to the premises and to record Video and Photography. In signing this Agreement, the Client permits the Company and its Producers to enter and use the property with personnel and equipment for the purpose of taking video recordings, photography stills, sound recordings, and motion pictures. This includes all aspects of the property without limitation: people, animals, automobiles, and any other object present on the property. In the event that any representative or agent associated with the Client participates in the production of Video or Photography, the Client, on behalf of these agents, provides the unconditional release and perpetual, irrevocable right (but not obligation) to use this material throughout the world. These include, but are not limited to: name, voice, likeness, and any derivative content created by the Company, any of its licensees, affiliates, and/or assignees. The Client, acting on behalf of itself and its representatives, associates, and other agents, hereby releases the Company and any of its successors or licensees from all claims arising from or connected to any uses including, but not limited to: invasion of privacy, defamation (which includes libel and slander) infringement of right of publicity, as well as any other personal or property rights. The Client hereby agrees that it will not, now or ever in the future, assert any claim against the Company, its licensees, and successors. In signing this Agreement, the Client agrees and certifies that the ownership of the Website, its Photography, and Video is entrusted in the Company and licensed to the Client, because the Company sponsors the production costs.
The Client further certifies to the Company that: (1) The Client’s performance will not cause any material breaches of any contract of which it is a part; (2) The Client has the right to enter into this Agreement and observe its outlined obligations, the signatory of this Agreement is at least 18 years old, and has the authority to bind the Client to this Agreement; (3) the Client will always adhere to applicable rules and regulations; (4) The Client’s Website will not contain, nor it will provide to the Company, any content that is obscene, illegal, pornographic, or offensive in nature. The Client agrees, represents, and warrants, to the best of their knowledge, no Client Materials violate any contractual right of a third party, including but not limited to patents, copyrights, and trade secrets.
The Company represents and warrants the following: (1) the Company’s delivery of services will not cause any material breaches of contract of which it is a part; (2) the Company shall operate in compliance with any applicable rules and regulations with regard to the delivery of the Licensed Product and Services. The Company certifies they have the right to give the Client intellectual property rights in accordance with Section 4 above. With the exception of Client’s Materials (i.e. content supplied by the Client, the Client’s clients, or any third party for inclusion in the Licensed Product), the Company certifies that no part of the Licensed Product will violate any third-party contractual right, including copyrights, patents, and trade secrets.
In signing this Agreement, the Company agrees to indemnify, protect, and hold the Client, as well as its directors, officer, employees, and other agents harmless against all claims and defense costs. This includes reasonable outside attorney’s fees and judgments, as well as any other expense that is a natural result of (1) any breach of this Agreement by the Company, except as expressly prohibited in Exhibit A, including but not limited to breaches of the representations and warranties in Section 6 above (2) any claim in which the Licensed Product allegedly violates any copyright or intellectual property right of any third party (with the exception of alleged breaches and claims arising out of use of the Client Materials, or any representation or warranty violation on the part of the Client as outlined in Section 4 above).
The Client likewise agrees to indemnify, protect, and hold the Company, as well as its directors, officers, and employees, harmless from all claims and defense costs, including but not limited to: reasonable attorney’s fees, judgments, and expenses that are the natural result of (1) any Client breach of the Agreement herein; (2) the use, public reproduction, or distribution of the Licensed Product by the Client or any of their officers, agents, or assignees, as well as any party to whom the Client delivers the Licensed Product (with the exception of claims that are covered under Section 7(2) above; and (3) and modifications or alternations made to the Licensed Product by the Client.
8. Limitation of Liability.
The Company’s liability with regard to this Agreement will be limited to the total amounts paid by the Client to the Company during the aggregate 12 -month period prior to the issuance or cause of the claim action. Neither party will be responsible for any incidentals, exemplary, indirect, punitive, or consequential damages. These include, but are not limited to: lost business and profits, as well as indirect damages arising out of the Agreement, even when the Client has been advised of the possibility of such damages. Any action related to the Services or Licensed Product must be filed within one year from the date of the cause of the action, otherwise such action will be permanently barred from liability.
This Agreement is governed by a Minimum Term, which is set forth in the Agreement herein. The Minimum Term begins on the date of the first Monthly Fee. If the Client wishes to terminate the Agreement prior to the expiration of the Minimum Term, the Client must provide written notice to the Company and pay a lump sum in the amount of the remaining Monthly Fees in accordance with the Minimum Term. If the Client has pre-paid the Monthly Fees for the Minimum Term, their obligation will be considered fulfilled and all prepayments will be considered fully earned and nonrefundable.
After the conclusion of the Minimum Term, either the Company or the Client reserves the right to terminate this Agreement at any time, for any reason, but must provide written notice of termination. In the event of a written notice, such contract termination will take place at the end of the current billing cycle. Additionally, the Company reserves the right to terminate this Agreement and/or immediately cease delivery of the Services or Licensed Product in the event of a Client breach of this Agreement. The Company also reserves the right to hold the Client liable for any termination fee. Upon termination of the Agreement, the Client will not have use of the Licensed Products, nor will they receive any refund for paid Fees.
EXCEPT AS EXPRESSLY OUTLINED IN EXHIBIT A, THE CLIENT RECONGNIZES AND AGREES THAT ALL COMPANY SERVICES AND PRODUCTS ARE PROVIDED TO THE CLIENT ON AN “AS IS” BASIS. AS SUCH, THE COMPANY DISAVOWS ANY EXPRESS OR IMPLIED WARRANTIES, WHICH INCLUDE, BUT ARE NOT LIMITED TO: GUARANTEES OF MERCHANTABILITY, SUITABILITY FOR A SPECIFIC PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM DEGREE PERMITTED BY APPLICABLE LAW. THE COMPANY CAN NOT AND DOES NOT WARRANT THAT THE DELIVERY OF THE SERVICES OR THE LICENSED PRODUCTS WILL BE ERROR FREE, TIMELY, OPERATE WITHOUT INTERRUPTION, OR WILL BE COMPATIBLE WITH THE INTERNET BROWSER OR OPERATING SYSTEM. THE COMPANY ALSO DOES NOT GUARANTEE THAT THE LICENSED PRODUCTS OR SERVICES WILL MEET ANY PERFORMANCE METRIC, INCLUDING, BUT NOT LIMITED TO: SALES, LEADS, PURCHASES, OR CLICKS. THE COMPANY MAKES NO GUARANTEES REGARDING THE STORAGE OF CLIENT MATERIALS AND WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF CLIENT MATERIALS. IN THE EVENT THAT THE DEGREE EXISTS TO WHICH THE COMPANY CANNOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF THE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THE APPLICABLE LAW.
11. Other Terms
The Company acts solely as an independent contractor and is not an agent, partner, or employee of the Client. In the event that approval, acceptance, agreement, or consent by either party is required by any provision of this Agreement, the action will not be unreasonably withheld nor delayed. If any provision, term, condition, or pledge of this Agreement is held by a court of applicable jurisdiction to be unenforceable or invalid, then the remainder of the provisions outlined herein remain in effect, nor will they be in any way invalidated. A waiver by either the Company or the Client of any of the agreements, conditions, or pledges to be performed will not be tantamount to a waiver of any successive breach of any other condition or provision outlined herein. Neither party will be liable for delays or other failures to perform,( with the exception of confidentiality breaches and payment obligations), provided that such delay or failure is caused by: labor shortage, civil unrest, war, riots, acts of enemies, insurrection, riots, natural disaster, federal, state, or municipal action, storm, explosions, inability to obtain materials, acts of God, and any other cause beyond either party’s reasonable control (these will henceforth be referred to as “Force Majeure”). If, after the payment of any Fees, the Company in its good faith sole discretion decides not to proceed with the manufacture of the Licensed Product, then the Company reserves the right to terminate this Agreement.
The Client may not consign this Agreement without written consent from the Company.
By signing this Agreement, the Client recognizes and agrees that the Company may suffer great harm from the misuse or abuse of the Licensed Product or its Company IP. As such, the Client agrees to take reasonable precautions to prevent misuse. In the event of a breach or threatened breach of this Agreement, the company may seek an injunction or other comparable reprieve from the breach regard material, misuse of the Company IP, or any other remedy that might be available under applicable law. The Client’s rights, in the event of such a breach on the part of the Company, will be limited to the right to recover damages in a tort action and the Client will not be privy to any equitable relief to restrict the Company’s rights, pursuant to this Agreement.
The Customer Contract and the Standard Terms of Agreement, including all Exhibits (the “Agreement”) establish the entire agreement between the two parties outlined herein. This Agreement supersedes all prior agreements or representations between the two parties, with respect to the Services and Licensed Product. The Client will not depend on any warranties or guarantees that are not expressly outlined in this Agreement. No change or waiver will be valid unless it is in writing and signed by both parties.
On occasion, the Company may adjust its business practices or modify these Standard Terms and Conditions. Any revisions to the Standard Terms and Conditions will be posted on the Company Website and/or provided to the Client. The Client agrees to maintain an operational email address and the Client also agrees that any correspondence sent by the Company to the Client at the provided email address will be deemed satisfactorily delivered. The Client recognizes and agrees that the Company may, on occasion, send surveys and other marketing correspondence using electronic or standard mail. The Client reserves the right to opt out of such correspondence in the future. Additionally, the Client will be responsible for any attorney’s fees if the Company takes legal action to enforce the Agreement and its updated terms. The laws of the state of New York govern this agreement. If any dispute or claim arises out of the Agreement, both Client and Company agree to arbitrate the dispute before a single arbitrator agreed upon by both parties, under the patronage of the Judicial Arbitration and Mediation Services (JAMS). If neither party is willing to agree upon an arbitrator, then both parties authorize JAMS to designate one. All arbitration will take place at the JAMS office closest to San Diego, New York, and the arbitrator shall apply New York law to the ruling. The arbitrator’s ruling shall be final and not subject to appeal.
Should arbitration become necessary, the winning party will have its costs, including attorney’s fees, paid by the other party. Any legal action or resolution will be individual in nature, and neither party shall pursue a class or representative action unless both the Client and the Company agree to do so in writing. The terms and conditions outlined in this Agreement may not be modified or amended in any manner, except those laid out in this Section or by writing signed by an officer of the Company.
Any notice given by the Company to the Client may be delivered via email as outlined above, or either party may contact the other via certified or registered mail, postage prepaid, or by first class mail. The Client may contact the Company at the following address: Webdify, PO BOX 24155, Rochester, NY, 14624 Attention: General Counsel.
Notice shall be deemed given for either party upon receipt, or three days following the mailing date, whichever is sooner. Any party may change their address by providing written notice.
Exhibit A – Service Level Agreement
This Exhibit A is subject to the preceding terms and conditions and is therefore incorporated to the Agreement. The terms of Exhibit A shall take precedence if there is a conflict within the terms of this Agreement.
1. Service Level Agreement (SLA). The hosting of the Website (henceforth referred to as “Hosting Services”) by the Company will include Performance Standards, outlined below. Failure to meet the Performance Standards will result in a credit to the client, pursuant to Section 3 below.
2. Performance Standards. During the Agreement term, the Company will provide Hosting Uptime at a rate of 99.8%. Hosting uptime will be calculated by the Company on a monthly basis. Hosting Uptime excludes the following circumstances:
- Scheduled, periodic maintenance of the site by the Company
- Changes to the Services or Licensed Product, as requested by the Client
- Errors caused by the Client, such as those from custom coding
- Outages that don’t affect the Website’s appearance, but only access to certain aspects such as email
- Causes that are not reasonably foreseeable or out of Company Control
- Issues with the Client domain registrar
- Suspension of any Services by the Company as the result of the terms of this Agreement, and
- Outages related to the reliability of programming environs.
3. Remedies For Performance Standards and Website Downtime
a. In the event that the Client requests an account credit and the Company asserts that it has failed to meet Performance Standards, then the company will grant the Client a credit that will be applied to the next Monthly Fee or invoice for Hosting Services as outlined in this Agreement. This will be equal to 5% of the recurring Monthly Fee.
b. Any claims for credit must be initiated by the Client within 30 days after the alleged failure to meet the Performance Standards. These requests must be made to the Company’s customer support line via email or any other mutually agreed upon methods. Claims made after the 30 day timeframe will not be eligible for any refunds, pursuant to the terms of this Agreement and this Exhibit.
c. Any Client credit will only apply to hosting services, and shall not apply to any other Service rendered by the Company. Under the terms of this Exhibit, the Client’s account will not be credited more than once per month. In the event of a failure to meet the Performance Standards, the Client’s sole remedy, as well as the Company’s sole liability, will be to receive a credit pursuant to the terms outlined in Section 3 of this Exhibit.
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