Elevated Marketing and Design
Terms and Conditions
Thank
you for your interest in the services of Elevated Marketing
and Design. By hiring Elevated Marketing and Design, and
signing up as a Client, you agree to be legally bound by
these Terms and Conditions. Please read these terms
carefully. If you do not accept these Terms and Conditions
stated here without modification, you may not use the
services of Elevated Marketing and Design. Elevated
Marketing and Design may revise these Terms and Conditions
at any time by updating this posting.
1.
Authorization
The named
Client is engaging Elevated Marketing and Design, as an
independent contractor for graphic design services, web
design services, advertising services, print services and/or
consultation services (hereinafter called “project”). The
named Client is authorizing Elevated Marketing and Design to
access necessary information to complete the project named
on the Estimate. Furthermore, the Client also authorizes
Elevated Marketing and Design to acquire domain names and
secure web hosting services for the establishment of a web
design project if named on the Estimate. The Client also
authorizes Elevated Marketing and Design to install on the
Client's account on an Internet Service Provider (ISP)/Web
Presence Provider (WPP) computer, hereinafter refer to as
"Hosting Service", if required to perform services. If
required to perform services the Client hereby authorizes
Elevated Marketing and Design to access this account and
authorizes the Hosting Service to provide Elevated Marketing
and Design with "full access" to the Client's account and
any other programs needed for this web design project that
are included as part of the Client's service
agreement/level.
2. Copyright and Trademarks
The Client unconditionally guarantees that any elements
of text, graphics, photos, designs, trademarks, or other
artwork furnished to Elevated Marketing and Design for
inclusion in the project are owned by the Client, or that
the Client has permission from the rightful owner to use
each of these elements, and will hold harmless, protect and
defend Elevated Marketing and Design from any claim or suit
arising from the use of such elements furnished by the
Client.
3. Web Site Maintenance
This agreement allows for minor web site maintenance to
pages over a 1-month period, up to an average of one half
hour per regular web site, including updating lines and
making minor changes to a sentence or paragraph. It does not
include updating or replacing nearly all the text from a
page with new text, major page reconstruction, new pages,
guest books, discussion webs, navigation structure changes,
attempted updates by Client repairs, or web design projects
delivered to the Client via diskette. The period of 1 month
begins on the date the Client’s web design site has been
published to Client's hosting service. Major page code
changes will be charged at current hourly rates. This one
half hour does not carry over from month to month.
4. Completion Date
Elevated Marketing and Design and the Client must work
together to complete the project in a timely manner. We
agree to work expeditiously to complete the project no later
than 45 days after the Client has submitted all necessary
materials and deposit. If the Client does not supply
Elevated Marketing and Design with complete text and graphic
content for this project within 60 days of the date this
agreement was signed, the entire amount of the agreement
becomes due and payable. If the Client still has not
submitted all the required contents within 90 days after
signing this agreement, an additional continuation fee of
15% of the total agreement price will be assessed for each
month until the project is published or the Client cancels
the project in writing.
5. Project Delivery
The project delivery shall be completed upon receipt of
the payment associated with delivery. Delivery may be
accomplished by publishing, electronic transfer, or physical
media. The Client understands that Elevated Marketing and
Design is not providing any hosting services in connection
with this web design project, unless Client engages Elevated
Marketing and Design to provide such hosting. Hosting
services will require a separate contract. The Client will
be solely responsible for all hosting service charges. The
Client assumes all responsibility for the use and
functionality of the project.
6. Electronic Commerce Laws
The Client agrees that the Client is solely responsible
for complying with such laws, taxes and tariffs, and will
hold harmless, protect, and defend Elevated Marketing and
Design and its subcontractors from any claim, suit, penalty,
tax or tariff arising from the Client's exercise of Internet
electronic commerce.
7. Ownership and Copyrights
Ownership (copyright and title) of the final logo design or
web design project becomes the property of the Client,
having unlimited, indefinite, and royalty-free use of the
image upon payment of all fees. Artwork for print services
remains the full property of Elevated Marketing and Design.
Elevated Marketing and Design retains rights to display the
artwork in portfolio and advertising materials. All
concepts, or other preliminary materials, which are not
selected by the Client or are not included into the final
delivery, remain the full property of Elevated Marketing and
Design.
Original
web site content specifically requested by the Client and
designed under work for hire shall be the intellectual
property of the Client once final payment under this
agreement and any additional charges incurred have been
paid. Rights to clipart, photos, graphics, source code,
work-up files and computer programs that are not
specifically requested and designed under work for hire are
not transferred to the Client, and remain the property of
their respective owners. Elevated Marketing and Design
retains the right to display graphics and other web design
elements as examples of their work in their portfolio, as
well as link from the Client’s website to the website of
Elevated Marketing and Design (www.elevatedmarketing.com).
The
Client grants Elevated Marketing and Design a royalty-free,
perpetual, irrevocable, sublicenseable, exclusive, worldwide
right (including any moral rights) and license to use,
reproduce, modify, adapt, publish, translate, create
derivative works from, distribute, communicate to the
public, perform and display (in whole or in part), and/or
incorporate in other works, in any form, media, or
technology now known or later developed, the designs
provided by Elevated Marketing and Design, for the full term
of any intellectual property rights that may exist in such
designs to the extent necessary to provide the Client with
the Service and the designs.
8.
Payments
Payments
must be made promptly based on the agreed schedule. Unless
otherwise agreed upon, a deposit of 50% is required to begin
any project. Delinquent bills can be assessed a $15 charge
if payment is not received within 10 days of the due date.
If an amount remains delinquent 30 days after its due date,
an additional 5% penalty can be added for each month of
delinquency. Elevated Marketing and Design reserves the
right to remove any web design project from viewing on the
Internet until final payment is made. In case collection
proves necessary, the Client agrees to pay all fees incurred
by that process. This agreement becomes effective only when
signed by an authorized representative of Elevated Marketing
and Design. Regardless of the place of signing of this
agreement, the Client agrees that for purposes of venue,
this agreement was entered into in Charlotte, North
Carolina, USA and any dispute will be litigated or
arbitrated in Charlotte, North Carolina, USA. Please pay on
time. All payments will be made in US $ funds unless agreed
upon in writing by both parties.
9.
Refunds
Elevated
Marketing and Design will refund non-incurred charges within
30 days of written cancellation request. Refunds are only
given on services not rendered. A “kill fee” is charged on
all unprinted cancelled printing services and will consist
of the total job cost minus printing costs plus 25% of total
job cost. For web design projects, refunds are calculated
by subtracting the incurred charges (total number of hours
at a rate of $75 per hour) from the initial deposit (50% of
total project). Refunds will be made via the original
method of payment. All requests for cancellation and refund
must be submitted in writing.
Refunds
are not available under the following circumstances:
-
Print jobs already
designed and printed.
-
Web design projects
already completed and published.
-
Consulting services
already rendered.
Should
the Client receive such refund, they acknowledge that they
will have no right (express or implied) to use any
response/samples or other work product, content, or media,
nor any ownership interest in or to the same.
10.
Eligibility Requirements
To register as a Client, you much be at least 18 years of
age, agree to these Terms and Conditions and the Privacy
Policy, and complete the registration procedure. By
registering as a Client, you represent and warrant that you
meet these eligibility requirements, that the information
you include as part of the registration process is complete
and accurate and, if you are registering on behalf of an
entity, that you are authorized to bind that entity to these
Terms and Conditions. Elevated Marketing and Design may
accept or reject your registration in its sole discretion.
The Service is not directed to children.
11.
Legal
Notice
Elevated
Marketing and Design does not warrant that the functions
contained in the web design project will be uninterrupted or
error-free. The entire risk as to the quality and
performance of the web design project is with the Client. In
no event will Elevated Marketing and Design be liable to the
Client or any third party for any damages, including, but
not limited to, service interruptions caused by Acts of God
or any other circumstances beyond our control, any lost
profits, lost savings or other incidental, consequential or
special damages arising out of the operation of or inability
to operate this web design project, failure of any service
provider, of any telecommunications carrier, of the Internet
backbone, of any Internet servers, your computer or site
visitor's computer or Internet software, even if Elevated
Marketing and Design has been advised of the possibility of
such damages.
12.
Indemnification
Upon a request by Elevated Marketing and Design, you agree
to defend, indemnify and hold harmless Elevated Marketing
and Design and its employees from all liabilities to, claims
of any third party due to or arising out of your violation
of any of these Terms and Conditions, and any expenses,
including, without limitation, reasonable attorneys fees,
incurred in connection therewith.
13.
Termination
Elevated Marketing and Design reserves the right, in its
sole discretion, to terminate the Service, at any time, with
or without notice. In the event of such termination,
Elevated Marketing and Design will work with the Client to
determine the amount of any refund (if any) to be paid to
the Client as a result of such termination. Should the
Client's use of the Service result from the Client's
material breach of the terms and conditions of this
Agreement, or any other agreement to which Elevated
Marketing and Design and the Client are a party, the Client
shall not be entitled to any refund, unless otherwise
mutually agreed upon by the parties.
14.
Severability
If any
provision of this agreement shall be held to be invalid or
unenforceable for any reason, the remaining provisions shall
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 shall be deemed
written, construed, and enforced as so limited.
15.
Waiver
of Contractual Right
The
failure of either party to enforce any provision of this
agreement shall not be construed as a waiver of limitation
of that party's right to subsequently enforce and compel
strict compliance with every provision of this agreement.
16.
Notices
Any
notice, direction or other communication given under this
Agreement shall be in writing and given by sending it via
e-mail, facsimile or via regular mail. In the case of
e-mail, valid notice shall only have been deemed to have
been given when an electronic confirmation of delivery has
been obtained by the sender, in the case of notice to us to
info@elevatedmarketing.com or authorized representative, in
the case of notice to you, at the e-mail address provided by
you in this agreement, in your WHOIS record for the website
domain name or as updated from time to time. Facsimiles
shall be sent to (704) 973-0022 and to you at the facsimile
number provided on your estimate. Mail shall be sent to
Adam
Barrington, 6825 Morganford Road, Charlotte, NC 28211 and to you
at the mailing address provided in this agreement or as
updated in writing.
17.
Privacy
Elevated Marketing and Design intends to use commercially
reasonable efforts to follow its privacy policy, as such
privacy policy may be changed from time to time at Elevated
Marketing and Design’s sole discretion. Notwithstanding the
foregoing, Elevated Marketing and Design cannot and does not
assume any responsibility or liability for any information
provided by the Client to Elevated Marketing and Design
which may be disclosed by accident or by third parties'
illegal acts.
18.
Disclaimers and Limitations of Liability.
(a) Disclaimer of Warranties. THE SERVICE AND THE RESPONSES
ARE PROVIDED "AS IS." ELEVATED MARKETING AND DESIGN MAKES
NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER TO THE
CLIENT OR ANY OTHER PERSON RELATING IN ANY WAY TO THE
SERVICE, INCLUDING ANY PART THEREOF, OR OTHER CONTENT THAT
MAY BE PROVIDED BY ELEVATED MARKETING AND DESIGN.
THE CLIENT ACCEPTS THAT THE ELECTRONIC DEVICES AND SOFTWARE
USED BY THE CLIENT TO REVIEW THE DESIGNS PROVIDED BY
ELEVATED MARKETING AND DESIGN MAY DISTORT THE COLORS, SHAPES
AND EFFECTS USED TO CREATE THE SAMPLES. ELEVATED MARKETING
AND DESIGN DISCLAIMS ANY WARRANTY RELATED TO THE ACCURACY OF
THE OUTPUT DEVICES USED BY THE CLIENT -WHATEVER ITS NATURE-
AND KEEP THE RIGHT TO STATE THE SPECIFICATIONS OF A GIVEN
DESIGN BY USING STANDARD COLOR, MEASURE AND DESIGN CODES.
THE CLIENT WILL ACCEPT THOSE SPECIFICATIONS AS THOSE
CORRESPONDING TO THE CHOSEN DESIGN.
ELEVATED
MARKETING AND DESIGN DISCLAIMS TO THE MAXIMUM EXTENT
PERMITTED BY LAW, ANY AND ALL SUCH REPRESENTATIONS AND
WARRANTIES. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, ELEVATED MARKETING AND DESIGN DISCLAIMS TO THE
MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL (i) WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii)
WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY
INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (iii)
WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS,
QUALITY OR OMISSIONS IN THE SERVICE, (iv) WARRANTIES
RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICE, AND
(v) WARRANTIES OTHERWISE RELATING TO PERFORMANCE,
NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY ELEVATED
MARKETING AND DESIGN OR ANY THIRD PARTY. FURTHER, AND
WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING,
THERE IS NO WARRANTY THAT THE SERVICE WILL MEET THE CLIENT'S
NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY
OTHER PERSON.
(b)
Limitation of Remedy. NEITHER ELEVATED MARKETING AND DESIGN
NOR ANY THIRD PARTY SHALL BE LIABLE TO THE CLIENT OR ANY
OTHER PERSON FOR ANY REMEDY, LIABILITY, DAMAGES, COSTS, OR
LOSSES WHATSOEVER RELATING IN ANY WAY TO THE SERVICE
(c)
Exclusion of Consequential Damages. IN NO EVENT SHALL
ELEVATED MARKETING AND DESIGN OR ANY THIRD PARTY BE LIABLE
TO THE CLIENT OR ANY OTHER PERSON FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR INDIRECT
DAMAGES ARISING UNDER OR IN ANY WAY RELATED TO THE SERVICE
PROVIDED BY ALD, INCLUDING ANY PART THEREOF, OR ANY OTHER
CONTENT, (INCLUDING LOST PROFITS, LOSS OF BUSINESS OR DATA,
BUSINESS INTERRUPTION, TRADING LOSSES, AND DAMAGES THAT
RESULT FROM INACCURACY OF THE INFORMATION OR INCONVENIENCE,
DELAY, OR LOSS OF THE DESIGNS PROVIDED BY ALD, EVEN IF
ELEVATED MARKETING AND DESIGN OR ANY THIRD PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
19.
This
Agreement
This
agreement constitutes the sole agreement between Elevated
Marketing and Design and the Client regarding this web
design project. Any additional work not specified in this
contract must be authorized by a written request. All prices
specified in this contract will be honored for 3 months
after both parties sign this contract. Continued services
after that time will require a new agreement. This agreement
supersedes any prior written or oral agreements between the
parties.
20.
Amendment
This
agreement may be modified or amended if the amendment is
made in writing and is signed by both parties. |
