KaioCreative Website Package Terms
WHEREAS, Firewind Productions is a website design, development and information provider connected to the Internet, offering design, development, marketing, storage and data transfer services over the Internet through access to Firewind Productions' web server and other service providers;
WHEREAS, the Client seeks to utilize the aforementioned server(s) 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 or other service providers at any given time.
Firewind Productions represents that it shall make every good faith effort to ensure that servers are 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 design Client's website and 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 or third-party service charges.
Lifetime Subscription Rate
The annual, semi-annual or monthly subscription rate agreed upon at commencement of services for your website service package is locked-in and guaranteed not to increase for the life of your current website subscription. In the event of subscription cancellation, termination, transfer or if the Client switches to a different website package, the rate may no longer be available (see the sections under Financial Arrangements/Termination and Subscription Cancellation below for details).
I. Initial Consultation and Analysis
- 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 an hour and several days of research. 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.
II. Commencement of Service
- The website subscription begins on the day that the initial setup and first month's payment or yearly prepaid subscription is received by Firewind Productions. This date is hereafter referred to as the Subscription Date. By making such payment for their website subscription, Client expressly agrees to these terms of contract.
III. Design and Development Period
- The Design and Development Period begins when the initial payment is received. During this period, the Client's website will be designed and developed, proofing will proceed, your hosting account will be enabled, any relevant domain names will be registered, any e-mail addresses you would like at your domain will be set up, and any external DNS programming will be completed. 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 and prompt receipt of content to be supplied by the Client.
- In order to proceed in an efficient manner, Client agrees to provide all website content/information discussed during the initial consultation and analysis or any other content/information necessary for the website to the Designer within seven (7) days of commencement of service. The design and development period may be extended if content to be supplied by the Client is not provided in a timely manner or if proofing changes are not received promptly.
- Comps & Proofing: 95% of all Firewind Productions' designs are approved within one or two proofs, however we will do as many proofs as are necessary to bring the website to your complete satisfaction before launch. 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 proofing sessions) at no charge to you. Additional proofs as necessary will be available for $25/ea.
IV. Close of Design & Development Period/Website Maintenance
- Website Approval. Written website approval will be obtained to mark the close of the Design & Development Period, when the website is designed to the Client's satisfaction. This written approval is required before the site can go live.
- Website Training & Tech Support: Firewind Productions will be available for free phone/email tech support as needed for the website and any email addresses or other services hosted by Firewind Productions, for the life of Client's current website subscription. Scheduled on-site one-on-one or group training for the website and any email addresses hosted by Firewind Productions is also available at no charge to clients in the Lewis-Clark Valley for up to 12 people (additional personnel will be billed on an hourly basis). For clients out of the Lewis-Clark Valley, scheduled on-site training is available at no charge when our transportation costs are covered by the Client. Please contact Jason Hackwith at 208-298-9083 for training session scheduling information.
- 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 train the Client to use all functions of the website and perform all other tasks necessary to maintain the working order and security of the website, including setting up e-mail addresses at the client's domain, performing security upgrades, and backing up files and data.
- Additional Design Work: After the site has gone live, additional design services requested by the Client will be available at Firewind Productions' special client rate of $65/hr.
- 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.
VI. Optional Upgrades/Subscription Modifications
- 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.
- Complete Custom Website Redesigns (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. When a website redesign is requested, the website subscription enters another Design & Development Period.
- Package Upgrades/Prorated Subscription: At any time during the subscription period, the Client can choose to upgrade to another of Firewind Productions' Website Packages. The yearly or monthly 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 yearly or monthly subscription fee by the number of days in the period 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.
VII. Financial Arrangements/Termination
- Client agrees to a twelve (12) month contract beginning upon commencement of service. This twelve (12) month contract begins on the date that initial payment is received.
- 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 giving the other party 30 days written notice. Firewind Productions will also accept termination by electronic mail.
- Client may elect to receive annual, semi-annual or monthly billing. The monthly rate available will always be about ten percent (10%) of the yearly rate. In other words, by prepaying for the year, the Client receives approximately two months free.
- If annual billing is chosen, the Client agrees to prepay for the twelve (12) month contract to receive an agreed-upon discounted rate, and will not be billed for the website subscription until one year from the Subscription Date.
- If semi-annual billing is chosen, the Client agrees to make a payment every six months for the twelve (12) month contract to receive an agreed-upon discounted rate.
- If monthly billing is chosen, Client agrees to make prompt payments by the fifth (5th) of each month for the next twelve (12) months.
- If payment is not received by the due date, hosting, email, and other services may be temporarily disabled until payment is made. Payments 30 days past due may be considered a subscription cancellation, and Client will no longer qualify for the same subscription rate.
- Violations of Firewind Productions' Terms of Service or Spam Policy may, at Firewind Productions' discretion, result in immediate disablement without refund.
- 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.
VIII. Reservation of Rights
- Upon completion of the Design and Development period, Firewind Productions will grant the Client full rights to the final approved website graphics and layout (hereafter referred to as the Site Theme) completed during the Design & Development period.
- The Client will retain all rights to all content posted by the Client to the website.
- Upon cancellation or kill during the Design & Development period, all rights for all content created by Firewind Productions revert to Firewind Productions.
- 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.
- Firewind Productions on occasion develops website packages utilizing 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.
- 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.
IX. Subscription Cancellation/Website Transfer
- In the event of subscription cancellation, the Client will retain all rights to all content the Client posts to their website.
- If the website is hosted on Firewind Productions' servers, 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. If the website is hosted with a third party service provider, the Client's service package with Firewind Productions will end but the Client may elect to continue their website hosting elsewhere.
- If Firewind Productions is to remain the registrar for domain names used by the website, domain registration can be continued without a website service contract for $12/domain/year for .com or .net. and $10/domain/year for .org or .us, payable upon service subscription cancellation.
- Upon subscription cancellation, the Client may elect to have their website, database, email, domain name, and other services previously provided by Firewind Productions transferred to a new host. This optional service is not available in all hosting conditions and is only available within thirty (30) days of account cancellation for a nonrefundable charge of $85/hour or $300; whichever is less. Most website DNS and email transfers take a total of 1-1.5 service hours per site. If such a transfer service is requested, Firewind Productions will make every effort possible to transfer the website files and data to another host as requested. However, not every host may have the software and/or DNS resources necessary. The Client will be informed before any charges are incurred if such a transfer will not be possible. The Client will also be responsible for all fees from third-party hosting services necessary for the site and/or email setup and continued functionality.
- In the event of subscription cancellation and website transfer, Firewind Productions will assume no responsibility for upgrading, securing, or otherwise maintaining the website unless a new service subscription is purchased. Firewind Productions reserves the right to charge any additional upgrade or maintenance fees necessary to bring the website to working order if a new service subscription is purchased. Also, in the event of subscription cancellation and website transfer, the Client will no longer be eligible for their previous quoted subscription rate in the event that a new service subscription is purchased.
- 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.
XI. Material Products
- Firewind Productions will exercise no control whatsoever over the content of the information passing through its network.
- 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.
- 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. Firewind Productions specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
XII. Trademarks & Copyrights
- Client warrants that it has the right to use the applicable trademarks and copyrighted work, if any.
XIII. Hardware, Equipment, & Software
- The customer is responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access Firewind Productions.
- 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.
XV. Internet Etiquette/Code of Conduct
- 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' servers should correctly identify the sender; users may not alter the attribution of origin in electronic mail messages or posting.
- 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.
XVI. Lawful Purpose/Anti-Spam Policy
- 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 strictly prohibited. To this effect, child pornography is strictly prohibited as well as housing any copyrighted information (to which the Client does not hold the copyright or have obtained written permission) on Firewind Productions' server.
- 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, usenet, or forum postings, or to use unsolicited e-mail, usenet, or forum postings to advertise for their site, product, or service. Client expressly agrees to Firewind Productions' Anti-Spam Policy, included in this document as a reference. The Anti-Spam Policy will also always be located at: http://www.firewindproductions.com/solutions/web/antispampolicy
- 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.
XVII. LIMITED LIABILITY
- 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.
- 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.
- 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.
- 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.
- 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.
XIX. CONTRACT REVISIONS
- Revisions to this Contract will be applicable to previous Contracts. Contract will always be located at this address:
- Revisions will be considered agreed to by the Client on renewal of service as specified in Section - Financial Arrangements.
- 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.
- Client may not transfer this contract without the written consent of Firewind Productions.
- These Terms and Conditions constitute the entire Contract and understanding of the parties.
- Any changes or modifications to these Terms and Conditions of Contract thereto are agreed to by the both parties upon renewal of services.
- 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.