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IF YOU ARE SIMPLY SIGNING UP FOR DOMAIN SERVICES & WEB HOSTING, THEN THESE TERMS APPLY TO YOU. |
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WEB HOSTING & DOMAIN SERVICES TERMS OF SUBSCRIPTION
DIAMONDTECH is a "No-Contract Web Host". All Domain Subscription Services and Web Hosting Subscriptions are a la carte and non contractual services. You, the client or customer, subscribe to such services as is and as described on your invoices and our website description text.
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IF DIAMONDTECH IS DESIGNING YOUR WEBSITE, THEN THESE TERMS BELOW ALSO APPLY TO YOU. |
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DOMAIN UNDERTAKE & WEBSITE DESIGN SERVICES AGREEMENT
This Domain Undertake & Website Design Services Agreement (this "Agreement") is made effective as of the date of engagement (the "Effective Date"), by and between You The Client and Person Accepting (the "Domain Owner"), and DiamondTech Enterprises, LLC a New York Registered Business, (the "Company").
The Company will design a website (the "Website") for the Domain Owner by providing the design and programming services listed on Schedule A - The Quote (the "Services") in a professional and timely manner. The parties may at any time modify the scope of the Services by including desired changes in a written "Change Request" that explains the changes and the adjustment to the payment for the Services that will result from such changes. Such change orders shall become effective when both parties mutually accept the order of change.
In exchange for the Services, Domain Owner will pay Company according to the following terms:
This Agreement will remain effective and engaged so long as the Domain Owner remains subscribed to any active services or plans that require continued billing and/or billing renewal including domain names, web hosting, website maintenance, search engine marketing and other services subscribed or billed through the client account {$whmcs_url}.
Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the Work Product) developed in whole or in part by Company in connection with the Services will be the exclusive property of Domain Owner upon completion of each work, and full satisfaction of each service's terms and payment in full of each service or work product. Notwithstanding any other provision of this Agreement, the Services will/may include some programming code that the Company has previously developed for its own use (the "Company's Prior Code"). The Company expressly retains full ownership of such code, including all associated rights to use such code. However, the Company also grants to the Owner and its users a perpetual, non-exclusive license to use the Company's Prior Code. Any programming that includes the Company's Prior Code shall include such copyright notices regarding the Company's Prior Code as the Company may require.
The Company, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Company, or divulge, disclose, or communicate in any manner, any information that is proprietary to Domain Owner. Company and its employees, agents, and representatives will protect such information and treat it as strictly confidential. Upon termination of this Agreement, Company will return to Domain Owner all records, notes, documentation and other items that were used, created, or controlled by Company during the term of this Agreement, if all balances and Agreement terms have been satisfied and if no long term Service Agreement is to be engaged after the site’s completion, at the billable expense of Domain Owner.
Company shall provide its services and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Company's community and region of web design, and will provide a standard of care equal to, or superior to, care used by service providers similar to Company on similar projects. The Company warrants to the Domain Owner that all software programming, web pages, CD-ROMs, diskettes, and materials delivered to the Domain Owner in connection with the Services are free from defects in materials and faulty workmanship under normal use, and that the Website will operate properly with widely used web browsers. During the Company's recommended beta testing period or for a 10 day period following delivery of Domain Owner’s final invoice, the Company will correct any website design anomalies ("bugs") that occur because of defects in the source code included in the website. After such time, the Company will make changes on a fixed hourly rate or a negotiated fixed quote basis. While no website design process is able to guarantee bug-free results, the Services will be provided in a workmanlike manner, within local industry standards and tolerances for commercial applications. This warranty does not cover items damaged, modified or misused after delivery to the Domain Owner.
6B. WARRANTY – INTELLECTUAL PROPERTY RIGHTS. The Company represents and warrants that it has the unencumbered right and power to enter into and perform this Agreement and that the Company is not aware of any claims or basis for claims of infringement of any patent, trademark, copyright, trade secret, or contractual or other proprietary rights of third parties in or to any programming or materials included by the Company in the Services or trade names related to the Services. In the event of any claim, charge, suit or proceeding by any third party against the Owner alleging such infringement, the Company shall defend such claim, charge, suit or proceeding. The Company shall indemnify and hold the Domain Owner harmless from and against any loss, cost, damage or expense (including attorney fees and legal expenses) incurred by the Domain Owner that may result by reason of any such claim, charge, suit or proceeding. This indemnity shall not apply to materials provided by the Domain Owner to the Company. The Domain Owner represents and warrants to the Company that the Domain Owner owns (or has a legal license to use) all photos, text, artwork, graphics, designs, trademarks, and other materials provided by the Domain Owner for inclusion in the Website, and that the Domain Owner has obtained all waivers, authorizations, and other documentation that may be appropriate to evidence such ownership. The Domain Owner shall indemnify and hold the Company harmless from all losses and claims, including attorney fees and legal expenses that may result by reason of claims by third parties related to such materials.
(a). In addition to any and all other rights both parties may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may suspend the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 5 days from the effective date of such notice to cure the default(s). Unless waived by the party providing notice, the failure to cure the default(s) within such time period shall result in termination of this Agreement. (b). If the Domain Owner’s account is placed into collections, the Domain Owner shall be solely responsible for the account balance, interest, legal fees, and collection costs. Collection fees shall be solely determined by the Collection Service with whom the Company has retained. Legal fees shall be assessed at a rate of $250.00 per hour, per attorney.
This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.
If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
This Agreement may be modified or amended by the Company from time to time as business costs may increase or decrease, or services may be added or discontinued, without limitation or restriction, including reasonable and probable cause caused by the Domain Owner. The Domain Owner at those times may freely disengage this Agreement according to Paragraph 3 of this Agreement. Continued usage or subscription to services offered by the Company 10 days beyond the announcement or notice of such amendments will constitute an acceptance of such amendments.
This Agreement shall be construed in accordance with the internal laws of the State of New York, without regard to conflict of laws rules. Venue shall be in a court of competent jurisdiction in the State of New York, and both parties expressly consent to jurisdiction in such courts.
Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by return receipt mail or email, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
Domain Owner may not assign or transfer this Agreement without the prior written consent of the Company.
(a). All works by the Company will contain a text mark at the footer of each web page similar to “Website Design & Web Hosting by DiamondTech” to signify that the website was or is designed by the Company. This text mark must remain on the website until it is has entirely been reconstructed by another web designer. Partial reconstruction is not acceptable. If the Domain owner wishes to remove or not have this text present on the website, the cost to do so is $500.00 per year that are works are present on the website or a single lump sum of $2,500.00. (b). Domain Owner understands that the Company’s itemized fee schedule that may or may not be attached is not guaranteed and is subject to change with or without notice. (c). Items, designs, or programming that are outside the capabilities of the Company will be “outsourced”. (d). Domain Owner understands the Website work product is a direct reflection of the Company’s works, and that editing by the Domain Owner or his/her agents that yield a dysfunctional site or any part thereof (i.e.: broken links, less quality artwork, site errors) is unacceptable by the Company. Under such circumstance, if the Domain Owner does not cure the dysfunction, Company maintains the right to republish or correct the website and bill the Domain Owner accordingly.
Domain Owner understands that it is Domain Owner’s responsibility to be aware of the cost and fees pertaining to the ordinary and current balances through available means such as the client {$whmcs_url}, billing statements, and order/service invoices. A current fee schedule will be sent to the Domain Owner upon request. For example, if you ask for works to be completed on your domain without asking for an estimate first, company will complete work and bill the Domain Owner accordingly. It is the customer's responsibility to request an estimate if financial concerns have to be given consideration.
Domain Owner understands that the Company offers reasonable domain design changes during the course of the Website’s design. However, once a particular phase, area or the entirety of Domain Owner’s site is approved, modifications may have regular fees billed. Domain Owner further recognizes that the Company cannot be expected to wait or delay in the finalizing of Domain Owner’s Website and/or its billable charges, beyond reason, due to the fault or delay of any kind of third party entities or vendors, and/or due to unreasonable requests, delays, or negligence of Domain Owner including failure to respond to email communications and confirmations.
Domain Owner understands the Company offers to customers, against generally recognized standards of the Company’s industry, the opportunity to streamline the content of Domain Owner’s Website for the purpose of reducing the Domain Owner’s Open Invoice under the terms described in Paragraph 6 of this Agreement.
Domain Owner understands that the Company is in the business of “designing & creating” websites, and an unreasonable amount of “exterior” linking from Domain Owner’s website to another website for the purpose of unauthorized content use, and or the purpose of developing a “Pseudo” website is strictly prohibited by domain copyright laws, web design etiquette, and this agreement when reasonably enforced by the Company.
The Company will use the names, trademarks, service marks, or symbols of the Domain Owner, for the purpose of driving traffic whereas necessary, creating awareness of the website’s presence, demonstrating the quality and pricing of our services and/or work product. The Domain Owner expressly consents to such usage hereto.
Under no circumstance shall either party be liable to the other party or any third party for indirect, incidental, consequential, special or exemplary damages (even if that party has been advised of the possibility of such damages), arising from any provision of this agreement such as, but limited to, loss of revenue or anticipated profit or lost business, costs of delay or failure of delivery, or liabilities to third parties arising from any source.
By providing or continuing to provide the updated information below, the Domain Owner agrees to be bound by these terms.
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