These are the terms and conditions of engagement with Farnsworth & Nanke LLC, dba Website Design Phoenix, and dba Iron Springs Design, referenced below as the “Designer”. These terms and conditions supercede any previous agreements you may have with Iron Springs Design or Website Design Phoenix. These terms and conditions are made effective and accepted by you, the “Client”, upon initial payment or deposit for services.
The Designer will design and/or maintain a website (the “Website”) for the Client by timely providing the design and programming services listed on your estimate or invoice. The parties may at any time modify the scope of the Services by including desired changes in a written “change order” that explains the changes and the adjustment to the payment for the Services that will result from such changes. Such a change order will become effective when accepted in email by the Client.
The Services will be completed timely manner in accordance with the schedule set forth between the Designer and the Client. The Designer will begin the Services when initial deposit or payment is rendered and continue until satisfactory completion of the Services. The term “satisfactory completion” of the Services means when the line items listed on the estimate or invoice have been completed. Every attempt will be made to complete the services within the estimated timeframe, however this depends on how quickly you can get us feedback, and possibly other circumstances beyond our control.
During the project, if we don’t receive communications from you in 14 days, we will suspend the project until such time as you can focus on it. Project suspension is $100 per month, paid monthly, until such time as you reactivate or cancel the project. Project cancellation will forfeit your deposit and all suspension fees.
In consideration for the Services, the Client will pay the Designer a 50% deposit to start the work, with the other 25% due once we've completed the new design for your website and then the final 25% when we've completed development of that new design. Once we've received that final payment after the finalization of development, we will then move your site live on your preferred domain or on a domain that we purchase for you with your permission.
Any additional maintenance, features or consultation beyond those items listed on the invoice or estimate will be billed at $80/hour with a 1 hour minimum. We will be happy to provide a free estimate before any additional work is started.
Your site’s design and functionality may need stock photos as well as 3rd party plugins for additional features. If we need to purchase these on your behalf we will let you know first for your approval, and the total will be added to your final invoice. You may approve these items via email acceptance.
If you elect to hire the Designer for Search Engine Optimization, this is a month to month plan that can be cancelled at any time. Any payments made are non-refundable. While we strive to obtain the best results possible, no company can control 3rd party search engine algorithms whose internal operations may change at any time and without notice.
If you elect to have the Designer host your site, the Designer will host your site on a reputable business class web-host. Hosting fees are collected yearly, and you will be sent an invoice for hosting renewal 30 days before your hosting period expires. If no payment is received by the hosting renewal period, Designer has the right to terminate hosting of the website. If you choose to take backups of your own site, you must back up to some resource other than the web host.
Ownership of the website transfers to the Client after full payment for services. The Client shall own all of the work derived from the Services provided by the Designer, including operating instructions, unique design concepts, other documentation developed for or specifically relating to the Client’s information processing, all of the Client’s source documents, stored data and other information of any kind, and reports and notes prepared by the Designer, will be “works for hire” under applicable United States copyright laws, and therefore the property of the Client. Such work may not be used by the Designer for any other purpose except for the benefit of the Client. Any and all such property shall be delivered to the Client on request by the Client. Upon request, the Designer shall sign all documents necessary to confirm or perfect the exclusive ownership interests of the Client, after 100% payment has been received.
The Designer will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Designer, or divulge, disclose, or communicate in any manner any information that is proprietary to the Client (e.g., trade secrets, know-how and confidential information). The Designer will protect such information and treat it as strictly confidential. This provision shall continue to be effective after the termination of this Agreement. Upon termination of this Agreement, the Designer will return to the Client all records, notes, documentation and other items that were used, created, or controlled by the Designer during the term of this Agreement.
The Client and the Designer agree to refrain from soliciting for employment, without the prior written consent of the other, their respective employees during the term of this Agreement and for a period of two (2) years following the termination of this Agreement.
The Designer is an independent contractor with respect to its relationship to the Client. Neither the Designer nor the Designer’s employees are or shall be deemed for any purpose to be employees of the Client. The Client shall not be responsible to the Designer, the Designer’s employees, or any governing body for any payroll taxes related to the performance of the Services. Upon request, the Designer will provide evidence of appropriate insurance coverage for workers compensation and general liability insurance.
The Designer warrants to the Client that all software programming, web pages, and materials delivered to the Client 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 Designer’s recommended beta testing period and for a 30 day period following making the site live on the Client’s domain, the Designer will correct any software anomalies (“bugs”) that occur because of defects in the source code included in the software. After such time, the Designer 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 Client.
The Designer represents and warrants that it has the unencumbered right and power to enter into and perform this Agreement and that the Designer 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 Designer in the Services or trade names related to the Services. This indemnity shall not apply to materials provided by the Client as contemplated by the following paragraph.
The Client represents and warrants to the Designer that the Client owns (or has a legal license to use) all photos, text, artwork, graphics, designs, trademarks, and other materials provided by the Client for inclusion in the Website, and that the Client has obtained all waivers, authorizations, and other documentation that may be appropriate to evidence such ownership. The Client shall indemnify and hold the Designer 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.
Except as expressly set forth in this agreement, the parties hereby specifically disclaim any representations or warranties, express or implied, regarding the services, including any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance.
Under no circumstances 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 not 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. Liability of the Designer shall be limited to amount paid for services.
Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorneys fees, costs and expenses resulting from the indemnifying party’s material breach of any duty, representation, or warranty under this Agreement.
This Agreement is not assignable, in whole or in part, by either party without prior written consent of the other party. Any attempt to make such assignment shall be void.
In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs.
Either party may terminate this Agreement at any time by providing prior written notice. In the event of such termination, the Client shall not receive his or her initial deposit. Unless otherwise terminated, this Agreement will terminate upon completion of the Services.
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. Any monies already paid would be non-refundable.
Any project not paid in full after 30 days of moving live to the Client’s domain will remain property of the Designer, where the Designer may decide to remove the site, put it in maintenance mode, or otherwise modify the site until receiving full payment by the Client, at the Designer’s discretion.
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.
This Agreement shall be construed in accordance with the internal laws of the State of Arizona, without regard to conflict of laws rules. Venue shall be in a court of competent jurisdiction in the State of Arizona, and both parties expressly consent to jurisdiction in such courts.
This Agreement 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.