Effective August 31, 2021
By using B. McGuire Designs’ (the “Developer”) Products and Services (the “Services”), you (the “Customer“) agree to these Terms and Conditions of Services, (the “Terms”).
Description of Services.
Developer may provide Customer with one or more of the following Services as indicated on associated Estimate, Proposal for Services or Order Summary:
(a) Development Services. Design a website (the “Website”) for the Customer by providing the design and programming services listed on the Proposal or Order Summary in a professional and timely manner (the “Development Services”).
(b) Website Care Services. Ongoing management services for the website. Website Care Services do not include website design or content services.
(c) Hosting Services. Website hosting services consisting of web server space, server maintenance and, optionally, email services (the “Email Services”).
(d) Software as a Service (SaaS). Customer access to and use of various software applications owned or licensed by Developer.
(e) Managed Services. Services provided by the Developer on behalf of the Customer.
Development Services, Website Care Services, Hosting Services, Email Services, Software as a Service, and Managed Services in this Agreement are collectively, “The Services.”
General Terms and Conditions Related to Services
Warranty against Unlawful Use. Customer warrants and represents that Customer shall use The Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of Customer’s account for cause.
Confidentiality. During the course of this Agreement, it may be necessary for Customer to share proprietary information, including trade secrets, industry knowledge, and other confidential information, to Developer in order for Developer to complete the Website in its final form. Developer will not share any of this proprietary information at any time, even after the Agreement is fulfilled. Developer also will not use any of this proprietary information for his/her personal benefit at any time, even after the Agreement is fulfilled.
Representations and Warranties
(a) Developer. Developer represents and warrants that he/she has the right to enter into and perform this Agreement. Developer further represents and warrants that he/she has the right to utilize and distribute the designs created for Customer and that such designs are not owned by anyone else to Developer’s knowledge. In the event that Developer does not have these rights, Developer will repay any associated damages Customer may experience or will take responsibility so that Customer does not experience any damages.
(b) Customer. The Customer represents and warrants to the Developer that the Customer owns (or has a legal license to use), without limitation, all photos, text, artwork, graphics, designs, trademarks, and other materials provided by the Customer for inclusion in the Website, and that the Customer has obtained all waivers, authorizations, and other documentation that may be appropriate to evidence such ownership. The Customer shall indemnify, defend and hold the Developer harmless from all losses and claims, including attorney’s fees and legal expenses, that may result by reason of claims by third parties related to such materials.
Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABILE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM ANY PART OF THIS AGREEMENT SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT OR LOST BUSINESS, COSTS OF DELAY OR FAILURE OF DELIVERY.
Attorney’s Fees. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs.
Termination on Default. 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 terminate this Agreement by providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default. The party in default shall have 14 business days from the effective date of such notice to cure the default(s). Unless waived by the party providing the notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
Force Majeure. If performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm, pandemic or other similar occurrence, acts of terror, orders or acts of military or civil authority, or by national emergencies, loss of electric power, loss of access to the internet, insurrections, riots, or wars, or strikes, lockouts, shelter in place orders, work stoppages or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.
Governing Law/Forum. This Agreement shall be construed in accordance with the internal laws of the State of Georgia without regard to conflict of laws rules. Venue shall be in a court of competent jurisdiction in Atlanta, Georgia and both parties expressly consent to jurisdiction in such courts.
Disputes. If a dispute arises hereunder, the Parties shall settle the dispute by mediation under the then current Rules of the American Arbitration Association (“AAA”) in Atlanta, Georgia. The neutral, third-party mediator will be selected by the Parties, unless the Parties agree otherwise. The Parties shall each pay one-half of any fees and expenses payable to the third-party mediator and to AAA. All negotiations pursuant to this Dispute Resolution section are confidential and shall be treated as compromise and settlement negotiations.
Notice. Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person, electronic mail, other electronic communication or by postal mail.
Complete Contract / Amendment. This Agreement, including any Annexes, supersedes all prior agreements and understandings between the parties for performance of the Services, and constitutes the complete agreement and understanding between the parties. The parties may amend this Agreement in a written document signed by both parties.
ANNEX A – Terms and Conditions Related to Development Services
Term of Agreement. Development Services will commence on the date of acceptance of this agreement and will be completed in accordance with the schedule set forth in an Proposal, Estimate or Order Summary.
Payment. Unless otherwise stated in a Proposal, Estimate or Order Summary, the following payment schedule for Development Services will apply: 50% of fees are due at time of acceptance, and 50% of fees are due upon final delivery of the website and Customer hereby agrees to remit payment per these terms.
Revisions/Approvals. Customer shall be entitled to two (2) revision cycles of design. Any revisions after approval shall be documented with a Change Order and chargeable at a rate of $100/hour (United States Dollars) with a one (1) hour minimum.
Ownership Rights. Customer continues to own any and all proprietary information it shares with Developer during the term of the Development Services for the purposes of the Project. Developer has no rights to this proprietary information and may not use it except to complete the Project. Upon completion of the Development Services, Customer will own the final website design.
While Developer will customize Customer’s Website to Customer’s specifications, Customer recognizes that websites generally have a common structure and basis. Developer continues to own any and all template designs it may have created prior to this Agreement. Developer will further own any template designs it may create as a result of this Agreement.
Termination. This Agreement with respect to Development Services shall terminate automatically upon the completion of the Development Services described herein. In the event of such termination, the Customer shall be obligated to pay only for actual services provided by the Developer and for expenditures incurred with the Customer’s approval.
Disclaimer of Warranties. Developer shall create a Website for Customer’s purposes and to Customer’s specifications. DEVELOPER DOES NOT REPRESENT OR WARRANT THAT SAID WEBSITE WILL CREATE ANY ADDITIONAL PROFITS, SALES, EXPOSURE, BRAND RECOGNITION, OR THE LIKE. DEVELOPER HAS NO RESPONSIBILITY TO CUSTOMER IF THE WEBSITE DOES NOT LEAD TO CUSTOMER’S DESIRED RESULT(S).
Browser Compatibility. Customer acknowledges that the Development Services will produce a website that is compatible with modern web browsers and is responsive on mobile devices such as tablets and smartphones. INTERNET EXPLORER HAS BEEN DEPRECATED BY MICROSOFT CORPORATION AND IS NO LONGER SUPPORTED. THE WEBSITE WILL LIKELY NOT RENDER AS EXPECTED WHEN VIEWED ON INTERNET EXPLORER.
Annex B – Terms and Conditions Related to Website Care Services
Term of Agreement. Website Care Services will commence at the conclusion of the Development Services term or upon acceptance of this agreement if no Development Services are provided and will continue month-to-month until terminated by either Party.
Payment. Customer agrees to remit payment for Website Care Services on the first day of each month for services to be rendered in that month.
Termination. This Agreement with respect to Website Care Services may be terminated by either Party upon 30 days’ prior written notice to the other Party. An email notice by one Party will suffice. Customer acknowledges that, without Website Care Services, Customer will be responsible for ongoing management and monitoring of the website, its core software and security, and that the website can possibly become unusable.
Maintenance Exclusivity. During the term of the Website Care Services, the Customer agrees that the Developer will be the sole provider of maintenance services for the web site and no other party will have access to or rights to change the web site. If a party other than Developer makes changes to the web site, any errors that are created must be repaired and will be charged for at the hourly rate of $125/hour (United States Dollars) with a 1 hour minimum.
Annex C – Terms and Conditions Related to Hosting Services and Email Services
Term of Agreement. Hosting Services will commence at the conclusion of the Development Services term or upon acceptance of this agreement if no Development Services are provided and will continue month-to-month until terminated by either Party.
Payment. Customer agrees to remit payment for Hosting Services on the first day of each month for services to be rendered in that month.
Termination. This Agreement with respect to Hosting Services may be terminated by either Party upon 30 days’ prior written notice to the other Party. An email notice by one Party will suffice. Customer acknowledges that Customer will be responsible for migration of website files, databases and other assets to a new hosting service. Developer will provide adequate access to Customer to effect such a migration.
Electronic Mail Abuse. Harassment by e-mail, whether through language, frequency, or size of messages, is prohibited. Customer may not send e-mail to any person who does not wish to receive it. If a recipient asks to stop receiving e-mail, Customer must not send that person any further e-mail. Customer is explicitly prohibited from sending unsolicited bulk e-mail messages (“junk mail” or “spam”). This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, and political tracts. Such material may only be sent to those who have explicitly requested it. Customer may not forward or otherwise propagate chain letters, whether or not the recipient wishes to receive such mailings. Malicious e-mail, including but not limited to “mail bombing” (flooding a user or site with very large or numerous pieces of e-mail) and “trolling” (posting outrageous messages to generate numerous responses) is prohibited. Forging of header or any other information is not permitted. Subscribing someone else to an e-mail list or removing someone else from a mail list without that person’s permission is prohibited. Email accounts or services may not be used to collect replies to messages sent from another Internet Service Provider if those messages violate this Agreement or any usage policy of that other provider. Violations of this Agreement will result in immediate account termination and provider reserves the right to charge an administrative clean-up fee of up to $500.00.
Violations of Network Security. Customer is prohibited from violating or attempting to violate the security of the network. Violations of system or network security may result in civil or criminal liability in addition to immediate termination of Customer’s agreement. Developer will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Customers who are involved in such violations. These violations include, without limitation:
(a) Accessing data not intended for the Customer or logging into a server or account that the Customer is not authorized to access.
(b) Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization.
(c) Attempting to interfere with service to any Customer, host or network, including, without limitation, via means of overloading, “flooding,” “mail bombing,” or “crashing”.
(d) Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
(e) Taking any action in order to obtain services to which the Customer is not entitled.
Annex D – Terms and Conditions Related to Software as a Service (SaaS)
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or in the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Modifications and Interruptions. We reserve the right to change, modify, or remove components or contents of the Services at any time or for any reason at our sole discretion of the sole discretion of third-party providers without notice. We and any third-party providers also reserve the right to modify or discontinue all or part of the Services without notice at any time. We will not be liable to you or any third-party for any modification, price change, suspension, or discontinuance of the Services.
We cannot guarantee the Services will be available at all times. We or third-party providers my experience hardware, software, or other problems or need to perform maintenance related to the Services, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Services at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience cause by your inability to access or use the Services during any downtime or discontinuance of the Services. Nothing in these Terms will be construed to obligate us to maintain and support the Services or to supply any corrections, updates, or releases in connection therewith.
Annex E – Terms and Conditions Related to Managed Services
Term of Agreement. Managed Services will commence upon Customer placing order and will continue until terminated by either Party.
Payment. Customer agrees to remit payment for Reputation Management Services on the first day of each month for services to be rendered in that month.
Termination. This Agreement with respect to Reputation Management Services may be terminated by either Party upon 30 days’ prior written notice to the other Party. An email notice by one Party will suffice.