"NO WORRIES" Website Packages: Terms of Use

WHEREAS, Firewind Productions is a website design, development and information provider connected to the Internet, offering design, development, storage and data transfer services over the Internet through access to Firewind Productions' Web Server;

WHEREAS, the Client seeks to utilize Firewind Productions' server for its own purposes;

WHEREAS, the parties acknowledge that the Internet is neither owned nor controlled by any one entity; therefore, the Designer can make no guarantee that any given reader shall be able to access Firewind Productions' server at any given time.

Firewind Productions represents that it shall make every good faith effort to ensure that its server is available as widely as possible and with as little service interruption as possible;

NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows;

CUSTOM WEBSITE DESIGN SATISFACTION GUARANTEE

Firewind Productions strives for complete customer satisfaction.  During the design and development period (see below for details), Firewind Productions will make all changes to your website design, layout, and navigation necessary to meet the Client's specifications and needs.  At any time during the design & development period, if the Client is unsatisfied for any reason, the subscription may be cancelled and the Client will receive a full refund of the subscription price, minus any rush charges.

CONSULTING, DESIGN & DEVELOPMENT SCHEDULE

1. A detailed initial consultation and analysis of the Client's company or organization including website needs, audience/prospective demographics, industry research, and initial consulting will be performed upon commencement of service.  This process usually involves an interview lasting about a half hour and several days.  At this time, the Designer and the Client will agree on all content to be provided by the Client in order to progress promptly with the work.
2. Design & Development Period: After the initial consultation, the Client's website will be designed and developed, proofing will be done, your hosting account will be enabled, any relevant domain names will be registered, and any e-mail addresses you would like at your domain (within the scope of your service plan) will be set up. This process usually takes around fourteen (14) to twenty (20) days and may be as little as seven (7) days, depending on the Designer's schedule.  The design and development period may be extended if content to be supplied by the Client is not provided in a timely manner.
3. Comps & Proofing: Firewind Productions proceeds on a 3-3 proofing schedule.  95% of all Firewind Productions' designs are approved within one or two proofs.  During the Design & Development Period, Firewind Productions will provide up to three comps (rough ideas) and three proofs from each comp (up to a total of nine layouts) at no charge to you.  Additional proofs are available for $15/ea.
4. Signature: A signature will be obtained to mark the close of the design & development period, when the website is designed to the Client's satisfaction.  This signature is required before the site can go live.
5. Website Updates/Maintenance: At the close of the Design & Development Period, the Client shall assume all responsibility for posting content to their website.  Firewind Productions will maintain the website's software, set up e-mail addresses, perform security upgrades, nightly file and data backups, and all other tasks necessary to maintain the working order and security of the website.
6. Website Training & Tech Support: Firewind Productions will be available for scheduled one-on-one or group website training and phone/email tech support as you need it.  Please contact Jason Hackwith for training session scheduling information.
7. Additional Design Work/Site Layout Redesign: After the site has gone live, additional design work requested by the Client will be available at Firewind Productions' special client rate of $60/hr.  For example, new website layouts (for the current website subscription only) are available at any time after the close of the Design & Development period for a one-time charge of $300 each or $60/hr (whichever is less).

ERRORS

1. Firewind Productions assumes no responsibility for errors. The Client shall be responsible for final proofreading on the assignment. Firewind Productions shall provide a final proof upon completion of the site design and development period, which the Client must sign to indicate that the Client assumes full responsibility for any errors contained therein.

OPTIONAL UPGRADES

1. The Client may choose to place an optional RUSH on the consulting, design & development schedule for guaranteed website design, development and launch within ten (10) business days of the receipt of all materials necessary for the website to be supplied by the client.  This optional service is available for a nonrefundable charge of $350, to be paid upon commencement of services.
2. Package Upgrades/Prorated Subscription: At any time during the subscription period, the Client can choose to upgrade to another of Firewind Productions' No Worries Website Packages. The yearly subscription fee for the new plan will be discounted depending on the length of time that has progressed during the Client's initial plan.  This prorated discount will be determined by dividing the Client's initial subscription fee by 365 to determine the daily rate, then multiplying the daily rate by the number of days which have progressed on the Client's initial plan.  Upon upgrade to a new plan, the Client's subscription date will be changed to the date of the upgrade, and the Client's contract will be renewed for an additional 12 months, beginning on the new subscription date.

FINANCIAL ARRANGEMENTS / TERMINATION

1. Client agrees to a twelve (12) month contract beginning upon commencement of service.
2. At the end of the contract term, the contract will automatically renew for a successive twelve (12) month period, indefinitely unless contract is terminated by unsubscribing through PayPal.com or by giving the other party 30 days written notice. Firewind Productions will also accept termination by electronic mail.
3. Violations of Firewind Productions' Terms of Service or Spam Policy may, at Firewind Productions' discretion, result in immediate disablement without refund.
4. Notwithstanding the above, Firewind Productions may terminate service under this contract at any time, without penalty, if the Client fails to comply with the terms of this contract, including non-payment.

RESERVATION OF RIGHTS

1. Upon completion of the Design and Development period, Firewind Productions will grant the Client full rights to the final approved website graphics and layout completed during the Design & Development period.
2. Upon cancellation or kill during the Design & Development period, all rights for all content created by Firewind Productions revert to Firewind Productions.
3. Firewind Productions also reserves and witholds the right to use any images created during the Design & Development period in its portfolio. This right may be waived only via arrangement for payment of a separate fee.
4. Firewind Productions on occasion develops website packages within the framework of open source software. All licenses for such software (if any) remain in place and the Client will be granted copies of all such licenses upon request.
5. All other rights not expressly granted are retained by Firewind Productions, including, but not limited to, all rights in sketches, comps, or other preliminary materials. Any use additional to that expressly granted requires arrangement or payment of a separate fee.

SUBSCRIPTION CANCELLATION / WEBSITE TRANSFER

1. In the event of subscription cancellation, the Client will retain all rights to all content the Client posts to their website, as well as rights to the final approved website graphics created during the Design & Development period.
2. All files hosted under the Client's account will be deleted within 30 days of subscription cancellation unless file and data transfer is requested.  Firewind Productions reserves the right to charge a reinstatement fee for retrieval of such files.
3. Upon subscription cancellation, the Client may elect to have their website, database, email, domain name, and other services transferred to a new host by Firewind Productions. This optional service is only available within thirty (30) days of account cancellation for a nonrefundable charge of $250.  If this service is requested, Firewind Productions will make every effort possible to transfer the website files and data to another host.  However, Firewind Productions' proprietary code is designed to run optimally on Firewind Productions' servers, and not every host may have the software and/or resources necessary.  The Client will be informed before any charges are incurred if such a transfer will not be possible.
4. Upon transfer to a new host, Firewind Productions will retain all rights to its proprietary code.  The Client will be granted a conditional use license for Firewind Productions' proprietary code, for the sole purpose of maintaining the function of the website on one (1) domain or subdomain only.  Firewind Productions' proprietary code may only be used on one (1) domain or subdomain and may not be transferred to another website or distributed in any way.
5. In the event of subscription cancellation and website transfer, Firewind Productions will assume no responsibility for upgrading, securing, or otherwise maintaining the transferred website unless a new service subscription is purchased.

TAXES

1. Firewind Productions shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from Client's website or Firewind Productions' server. Client agrees to take full responsibility for all taxes and fees of any nature associated with such products sold.

MATERIAL PRODUCTS

1. Firewind Productions will exercise no control whatsoever over the content of the information passing through its network.
2. Due to the fact that the Internet is neither owned nor controlled by any one entity, Firewind Productions can make no warranties or representations of any kind, whether expressed or implied, for the hosting services it is providing. Firewind Productions also disclaims any warranty of merchant-ability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by the Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the Client. Use of any information obtained by way of Firewind Productions' servers is at the Client's own risk, and Firewind Productions specifically denies any responsibility for the accuracy or quality of information obtained through its hosting services. Connection speed represents the speed of a connection to and do not represent guarantees of available end to end bandwidth. Firewind Productions expressly limits its damages to the Client for any hosting non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability.
3. The customer agrees to make use of Firewind Productions' servers primarily for the purpose of hosting a website and associated email functions. Servers are shared with other customers, and as such IRC-related activities, BitTorrent software, or severely CPU intensive CGI scripts (e.g. chat scripts, proxy scripts, scripts which have bugs causing them to not close properly after being run) are not encouraged. IRC bots and bouncers (BNC) specifically may not be run on any Firewind Productions server, and if your processes are adversely affecting server performance disproportionately Firewind Productions reserves the right to negotiate additional charges with the Client and/or the discontinuation of the offending processes.
4. Firewind Productions specifically denies any responsibilities for any damages arising as a consequence of such unavailability. Firewind Productions may, at its option and at any time, reject material that violates this Terms of Use, including but not limited to after it has been put on Firewind Productions' Server. Firewind Productions agrees to notify Client immediately of its refusal of the material and afford Client the opportunity to amend or modify the material to satisfy the needs and/or requirements of Firewind Productions. If the Client fails to modify the material, as directed by Firewind Productions, within a reasonable period of time, which shall be determined between the parties themselves, the contract shall be deemed to be terminated and subscription will be canceled.

TRADEMARKS & COPYRIGHTS

1. Client warrants that it has the right to use the applicable trademarks, if any.

HARDWARE, EQUIPMENT, & SOFTWARE

1. The customer is responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access Firewind Productions.

AGE

1. The Client certifies that he or she is at least 18 years of age, or that their parent or legal guardian will act as the "customer" in terms of this contract.

INTERNET ETIQUETTE

1. Electronic forums such as mail distribution lists and Usenet news groups all have expectations regarding subject area and appropriate etiquette for posting. Users of these forums should be considerate of the expectations and sensitivities of others on the network when posting material for electronic distribution. The network resources of Firewind Productions may not be used to impersonate another person or misrepresent authorization to act on behalf of others or the Designer. All messages transmitted via Firewind Productions should correctly identify the sender; users may not alter the attribution of origin in electronic mail messages or posting.
2. Users must not attempt to undermine the security or integrity of computing systems or networks and must not attempt to gain unauthorized access. This includes (but is not limited to) such things as port scanning and Denial Of Service attacks of any kind.  Any evidence of such unauthorized access attempts will result in an immediate termination of Client's account without refund.

LIMITED LIABILITY

1. Client expressly agrees that use of Firewind Productions' Server is at Client's sole risk. Neither Firewind Productions, its employees, affiliates, agents, third party information providers, merchants licensers or the like, warrant that the Firewind Productions' server service will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the Server service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Firewind Productions' Server service, unless otherwise expressly stated in this contract.
2. Under no circumstances, including negligence, shall Firewind Productions, its offices, agents or any one else involved in creating, producing or distributing Firewind Productions' server service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Firewind Productions' server service; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to Firewind Productions' records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on Firewind Productions' Server service.
3. The Client agrees to indemnify and hold Firewind Productions harmless against any and all claims, costs, and expenses, including attorney’s fees, due to materials included in the Work at the request of the Client for which no copyright permission or privacy release was requested, or for which uses exceed the uses allowed pursuant to a permission or release.
4. 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 amount which Client paid during the term of this contract and any reasonable legal fee and court costs.

LAWFUL PURPOSE

1. Client may only use Firewind Productions' servers for lawful purpose. Transmission of any material in violation of any Country, Federal, State or Local regulation is prohibited. To this effect, child pornography is strictly prohibited as well as housing any copyrighted information (to which the customer does not hold the copyright) on Firewind Productions' server.
2. Client agrees to not have any content on their site that advocates, sells or in any way makes available tools or methods to send unsolicited e-mail or usenet postings (spam), or to use Firewind Productions' servers for relaying unsolicited e-mail or usenet postings, or to use unsolicited e-mail or usenet postings to advertise for their site. Any complaint we receive about a violation of this or the preceding two points will be taken very seriously and will result in immediate account cancellation without a refund.

INDEMNIFICATION

1. Client agrees that it shall defend, indemnify, save and hold Firewind Productions harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees, ("Liabilities") asserted against Firewind Productions, its agents, its customers, 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 Client,its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Firewind Productions against Liabilities arising out of
   • any injury to person or property caused by any products sold or otherwise distributed in connection with Firewind Productions' Server;
   • any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party;
   • copyright infringement;
   • any defective product which Client sold on Firewind Productions' servers.

CONTRACT REVISIONS

1. Revisions to this Contract will be applicable to previous Contracts.
2. Revisions will be considered agreed to by the Client on renewal of service as specified in Section - Financial Arrangements.
3. No terms attached to any check for payment under this Agreement can modify the Agreement except under an independent instrument in writing signed by both parties.

TRANSFER

1. Client may not transfer this contract without the written consent of Firewind Productions.

CONTRACT

1. These Terms and Conditions constitute the entire Contract and understanding of the parties.
2. Any changes or modifications to these Terms and Conditions of Contract thereto are agreed to by the both parties upon renewal of services.
3. Any dispute regarding this agreement shall be arbitrated in Lewiston, Idaho under the rules of the American Arbitration Association and the laws of the State of Idaho. A waiver or breach of any of the provisions of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions. This Agreement shall be governed by the laws of the State of Idaho and courts of such state shall have exclusive jurisdiction and venue.

Authorized Client Representative

Jason Hackwith

Subscription Date

Last Updated Thursday, March 27 2008 @ 08:34 PDT; 1,328 Hits