TERMS OF SERVICE
1. Acceptance of Terms of Service .
- By registering for and/or using any of the Services in any manner, including visiting or browsing the Website, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time through the Services by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
2. Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
3. These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
4. ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASSWIDE ARBITRATION.
You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service and your use of the Services (a) are in compliance with all laws, rules and regulations applicable to you and (b) do not violate any other agreement to which you are a party. The right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
To sign up for the Services, you must register for an account on the Services (an “Account” ).
You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user Account or registration information for the Services without permission or share your Account or access credentials with any other individual. You should never publish, distribute or post login information for your Account. You must notify us immediately of any change in your eligibility to use the Services or breach of security or unauthorized use of your Account. You have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates, but Account deletion requests are subject to any additional terms governing use of any Paid Services (as defined below) for which you have signed up.
4. The Services.
Subject to these Terms of Service, Creative Boro will use commercially reasonable efforts to make the Services available to you.
“Content” means information, data, text, photographs, videos, audio clips, artwork, designs, Templates, styles (including demo styles, personalized styles, customized for customer styles or example styles), written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. Creative Boro hereby grants you a Nonexclusive,nonsublicensable and nontransferable license to use and display Content solely for purposes of using the Services for your personal use on your own behalf. Use, reproduction, modification, distribution or storage of any Content (other than Customer Content (as defined below)) for any purpose other than using the Services is expressly prohibited without prior written permission from us. As between the parties, all Content, except for Customer Content, is owned by Creative Boro or its licensors. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We may use a client’s personalized style templates as content for another customer, demo, example of work, or our marketing efforts without your expressed permission beyond acceptance of these Terms of Service, as the personalized style template and its database, code and design is our content, not customer content. Each subscription option has a different amount of time before the content, along with customer content, can be transferred to the customer for use elsewhere with the same nonexclusive license, assuming each month full payment has been for the specific subscription (Full Service = 12 months; Full Service Plus = 6 months). Ownership of our content is not being transferred, we are simply allowing our content to be stored in another location for nonexclusive use by the customer. In no way are we allowing the customer to sell or transfer the license to our content.
c. Restrictions on Use of the Services.
You will not directly or indirectly (i) sell, license, sublicense,distribute, copy, rent or lease the Services or any Content, or include the Services in a service bureau, timeshare outsourcing offering, or otherwise make the Services available to, or use the Services for the benefit of, any third party, or transfer any of the rights that you receive hereunder; (ii) interfere with or disrupt the integrity or performance of the Services, or any thirdparty data contained therein, or attempt to gain unauthorized access to the Services or its related systems or networks; (iii) copy, modify, translate, or create derivative works based on the Services or any underlying software or any part, feature, function or user interface thereof, including by framing or mirroring any part of any Services or any Content; (iv) access or use the Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product, service or website; (v) decompile, disassemble, decipher or reverse engineer the Services, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (except to the extent such restriction is prohibited by applicable statutory law); (vi) remove any copyright notices, information, and restrictions contained in the Services or any Content; (vii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services) or take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (viii) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website or Services; or (ix) otherwise take any action in violation of our guidelines and policies, including these Terms of Service.
We are not and will not be responsible or liable for any failure in the Platform or Services resulting from or attributable to (i) Customer Content, or failures to deliver Customer Content to Creative Boro; (ii) failures in any telecommunications, network or other service or equipment outside of Creative Boro’ facilities; or (iii) any force majeure event or other cause beyond Creative Boro reasonable control. We do not guarantee that the Services or any Content will be available, or that any Content that is available is or will continue to be accurate. We reserve the right, but do not have any obligation, to remove, edit, modify or block access to any Content in our sole discretion, at any time, without notice to you and for any reason (including upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service).
5. Customer Content.
“Customer Content” means (i) any and all electronic data, content and information submitted to the Services or Creative Boro by you or by a third party on your behalf, or that is collected and processed by you or by a third party on your behalf directly in connection with your use of the Services (“Customer Data” ) (ii) any trademarks, trade names, logos, service marks, branding materials, designs or artwork provided to the Services or Creative Boro by you or by a third party on your behalf (“ Customer Marks ”), and (iii) any custom trademarks or logos that Creative Boro agrees to design or create specifically for you as a commissioned work outside of subscription or add-on payments.
b. License to Customer Content.
By using the Services, including by providing your Customer Content, you hereby grant Creative Boro a nonexclusive,worldwide, royalty free,fully paid up right and license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit your Customer Content on the Platform and in connection with providing the Services to you. You acknowledge and agree that (i) the quality of the Services and the Platform depend on the uploading or other provisioning of the Customer Content into the Platform or the Services, as applicable, and (ii) Creative Boro will not assume any responsibility for, or undertake to verify, the legality, accuracy or completeness of the Customer Content provided by you or on your behalf. Each subscription option has a different amount of time before the content, along with customer content, can be transferred to the customer for use elsewhere with the same nonexclusive license, assuming each month full payment has been for the specific subscription (Full Service = 12 months; Full Service Plus = 6 months). Ownership of our content is not being transferred, we are simply allowing our content to be stored in another location for nonexclusive use by the customer. In no way are we allowing the customer to sell or transfer the license to our content.
c. Representations and Warranties.
You represent, warrant and covenant that (i) all Customer Content is accurate and compliant with all applicable laws, rules and regulations; (ii) you own all rights, title and interest in and to the Customer Content, or have otherwise secured all necessary rights in the Customer Content as may be necessary to permit the access, use and distribution thereof as contemplated by these Terms of Service; (iii) you shall only use the Services in accordance with all applicable laws, rules and regulations, these Terms of Service and any relevant documentation provided by Creative Boro; and (iv) you will not, and will not permit any third party to upload, download, post, submit, provide, transmit, distribute or otherwise make available to or through the Services any content or data that (A) is unlawful, infringing, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, or that otherwise violates any other right of any thirdparty, including any intellectual property, proprietary or privacy rights, or that is otherwise inappropriate, as determined by us in our sole discretion; (B) contains any viruses, code, files, or programs designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or that is or can be otherwise malicious or disruptive; (C) constitutes unauthorized or unsolicited advertising, junk or bulk email (“spamming”) or otherwise violates federal CANSPAM regulation (you are responsible for complying with CANSPAM,
including without limitation for supplying an “Unsubscribe” link in any emails required to include such link); or (D) contains any personally identifying information that is subject to specialized security regimes including without limitation the Health Insurance Portability and Accountability Act (“HIPAA” ) and the standards promulgated by the PCI Security Standards Council.
You acknowledge and agree that Creative Boro is not a “Business Associate” under HIPAA, and you
will not provide any protected health information to the Services or to Creative Boro.
6. Third Party Services.
The Services may integrate with or permit you to link to other websites, plugins, services or resources on the Internet, and other websites, plugins, services or resources may contain links to
the Services. When you access third party resources, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such resources. The inclusion of any such link or the availability or use of any such integration does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods or services available on or through any such resource. Creative Boro will also not be responsible or liable for any failure in the Services attributable to your or any third party’s products, services, negligence, willful misconduct, breach of this Agreement or other unauthorized access or use.
Creative Boro is not a registrar. We are a reseller of domains. The third party registrar may change without notice and is solely responsible for the customer’s domain and domain services. We will provide the mechanisms to transfer, manage and purchase domains from the registrar of our choice. The user interface to transfer, manage and purchase domains is operated by us for a better customer experience, not to imply that Creative Boro is a domain registrar. All disputes concerning domain services will include the registrar we are acting as a reseller. Contact us in writing using the contact in this Terms of Service if you do not know your registrar in the case of a dispute.
Creative Boro does not own or manage servers. We are a reseller of hosting services. The third party hosting company (owner-operator of servers) may change without notice and is solely responsible for the customer’s physical data. We will provide the mechanisms to transfer, manage and purchase hosting from the company of our choice. The user interface to transfer, manage and purchase hosting is operated by us for a better customer experience, not to imply that Creative Boro is owner-operator of the server used for hosting content and customer content. All disputes concerning physical servers and hosting services will include the company we are acting as a reseller. Contact us in writing using the contact in this Terms of Service if you do not know our server hosting company in the case of a dispute.
7. Payments and Billing .
a. Paid Services.
Certain of our Services are or may in the future become subject to payments (the “Paid Services” ). Please see our Paid Services page at creativeboro.com for a description of the currently available Paid Services and to sign up for Paid Services. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms of Services. All amounts are stated in, and shall be paid in, U.S. dollars. We do not transmit invoices automatically, but they can be provided in PDF format from our support department upon your request to firstname.lastname@example.org.
b. Payment; Late Fees.
By signing up to receive any Paid Services, you agree to pay us, in accordance with all applicable payment terms set forth on creativeboro.com and herein, the Fees for such Paid Services, and you authorize us, through the Payment Processor (defined below), to charge your chosen payment provider (“Payment Method” ) for the applicable Fees and agree to make payment using that selected Payment Method. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. If our collection efforts fail, unpaid debts will be reported to all available credit reporting agencies.
Fees are exclusive of any taxes. You shall be responsible for all taxes, tariffs, levies and duties associated with the Services other than U.S. taxes based on Creative Boro’ net income.
We use a thirdparty payment processor (the “Payment Processor ”) to bill you through a payment account linked to your Account on the Services (your “ Billing Account ”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms of Service. We are not responsible for errors by the Payment Processor but we reserve the right to correct any errors or mistakes that the Payment Processor makes, even if the Payment Processor has already requested or received payment. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
Fees for Paid Services ordered on a subscription or autorenewing basis will be automatically charged $100/month or $50/month or $20/month on a recurring basis, and when signing up for a Paid Service, you will be able to select a recurring billing level and renewal term (e.g., monthly) (“Subscription” ). Unless you cancel or change your Subscription in accordance with these Terms of Service, any Subscription you have signed up for will be automatically extended for successive renewal periods of the same duration as you originally selected, at the then current nonpromotional rate. By signing up for a Subscription, you agree that we may submit the charges associated with such Subscription for payment on the applicable schedule and you will be responsible for such charges. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Subscription. BY SIGNING UP FOR A SUBSCRIPTION YOU ACKNOWLEDGE AND AGREE THAT WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE OR ALTER YOUR SUBSCRIPTION OR CHANGE YOUR PAYMENT METHOD, GO TO CREATIVEBORO.COM AND LOG INTO YOUR ACCOUNT.
This does not waive our right to seek payment directly from you.
f. Current Information Required .
YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR ACCOUNT CREDENTIALS OR
PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT creativeboro.com
IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
g. Cancelling or Changing Paid Services.
To change or resign your Paid Services at any time, visit creativeboro.com and login to your account or contact us at email@example.com. Any request for cancellation must be sent at least ten (10) business days prior to the end of the Subscription term to allow for adequate processing time. Your nontermination or continued use of the relevant Paid Service reaffirms that we are authorized to charge your Payment Method the Fees for such Paid Service, including any associated fees (e.g. overage fees or late fees, to the extent applicable). If you terminate a Subscription, you may use the applicable Paid Service until the end of your then current Subscription term; however, your Subscription, and therefore access to the Paid Services, will not be renewed after your then current Subscription term expires. You will not be eligible for a prorated refund of any portion of any Fees paid for the then current Subscription period.
h. Change in Amount Authorized .
If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
i. No Refunds.
Payment obligations are noncancelable. Except as expressly set forth in these Terms of Service, Creative Boro will not, under any circumstances, issue refunds or prorate any Fees for early cancellation or termination of the Services, or for any other reason.
j. Chargeback Policy; Disputes .
If you have a question about charges made to your Account, please contact us immediately. If the charges were made in error, we will credit your Billing Account or Payment Method for the appropriate amount. Please note that Creative Boro has a zero tolerance policy for chargebacks. Any customer who disputes a credit card payment that is found to be valid will be permanently banned from use of any and all Creative Boro Services.
8. Copyright Policy.
We have adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (h ttp://lcweb.loc.gov/copyright/legislation/dmca.pdf) . The address of the Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent” ) is listed at the end of this paragraph. Procedure for Reporting Copyright Infringement:
If you believe that material or content residing on or accessible through our websites, application, or services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, Email address;
- A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Please contact the Designated Agent to Receive Notification of Claimed Infringement at:
1621 HEADWATER CT
MURFREESBORO, TN 37128
9. Termination .
a. Termination by Either Party.
You have the option of canceling your Account at any time by following the instructions on the Website or otherwise available through the Services, subject to any terms applicable to Paid Services for which you have signed up. We reserve the right to terminate your Account or access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately. All provisions of these Terms of Service which by their nature should survive termination or expiration shall survive termination, including ownership provisions, warranty disclaimers, indemnity and limitations of liability.
b. Customer Content after Termination.
Termination or cancellation of your Account by either party may result in the forfeiture and destruction of all information, content and data, including Customer Content, associated with your Account. An Account terminated by Creative Boro will not be backed up for any reason and will be immediately deleted from our servers. Each subscription option has a different amount of time before the content, along with customer content, can be transferred to the customer for use elsewhere with the same nonexclusive license, assuming each month full payment has been for the specific subscription (Full Service = 12 months; Full Service Plus = 6 months). Ownership of our content is not being transferred, we are simply allowing our content to be stored in another location for nonexclusive use by the customer. In no way are we allowing the customer to sell or transfer the license to our content. Upon your request, which must be made within thirty (30) calendar days after the effective date of termination or expiration of your Account in accordance with these Terms of Service, Creative Boro will use commercially reasonable efforts to make your Customer Content available to you for export or download. After that 30 day period, we will have no obligation to maintain or provide your Customer Content, and may thereafter delete or destroy all copies of Customer Content in our systems or otherwise in our possession or control, unless legally prohibited. We reserve the right, including after termination, to access, read, preserve, and disclose any information or content as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms of Service, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests or (v) protect the rights, property or safety of us, our users and the public. We may use a client’s personalized style templates as content for another customer, demo, example of work, or our marketing efforts without your expressed permission beyond acceptance of these Terms of Service, as the personalized style template and its database, code and design is our content, not customer content.
c. Fees Due Upon Termination.
In the event of termination of any Subscription, you shall pay Creative Boro all Fees due for the entire Subscription period.
10. Warranty Disclaimer.
- You release us from all liability for you having acquired or not acquired Content through the Services.
We make no representations concerning any Content contained in or accessed through the Services, and
we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or
Content contained in or accessed through the Services.
- THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAILSAFE CONTROLS, INCLUDING WITHOUT LIMITATION: OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.
- You shall and hereby do waive California Civil Code Section 1542 or any other similar law of any jurisdiction, which says in substance: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor”.
- Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You may have other rights which vary from jurisdiction to jurisdiction.
You are solely responsible for your conduct related to the Services and for Customer Content. You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, or otherwise from your Customer Content, violation of these Terms of Service, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
12. Limitation of Liability.
IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); OR (C) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE GREATER OF (I) FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD OR (II) $500.00.
13. ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION IN NEW YORK, NEW YORK UNDER THE STREAMLINED ARBITRATION RULES AND PROCEDURES (“RULES ”) OF JAMS, INC. (“JAMS” ) THEN IN EFFECT, BY ONE COMMERCIAL ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING INTELLECTUAL PROPERTY AND COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAMS ARBITRATORS IN ACCORDANCE WITH SUCH RULES, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or classwide arbitration for any claims covered by this agreement. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Services must be filed within one (1) year after such claim of action arose or be forever banned.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with us.
14. Governing Law and Jurisdiction .
These Terms of Service shall be governed by and construed in accordance with the laws of the State of Tennessee, including its conflicts of law rules, and the United States of America.
You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be resolved in Rutherford County, Tennessee.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service,
or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via email or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability.
While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms of Service in effect at the time of such use.
16. Miscellaneous .
a. Entire Agreement and Severability .
These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
b. Force Majeure.
We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
d. Agency .
No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices to Creative Boro should be sent to firstname.lastname@example.org. You acknowledge and agree that Creative Boro may send you communications regarding your account or the Service via email to the email address listed in your Account.
f. No Waiver.
Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
g. Headings; Interpretation .
The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in this Agreement shall be read as being followed by “without limitation” where appropriate.
You hereby consent to our use of your name and logo as part of Creative Boro’s marketing and promotional efforts.
Contact. You may contact us at the following address: Creative Boro at email@example.com or 1621 HEADWATER CT, MURFREESBORO, TN 37128
Effective Date of Terms of Service : November 23, 2016 (replacing November 1, 2016 Terms of Service). Previous versions of the Terms of Service are available only by written request to the Contact above. Please allow up to 90 days for response.
Between – The PM Consultants, LLC dba Creative Boro, a TN limited liability company (“us,” “we,” or “our”) – and the client customer (“you” or “your”).
We will always do our best to fulfill your needs and meet your goals, but sometimes it’s best to have a few things written down so that we both know what’s what, who should do what and what happens if stuff goes wrong. In this contract you won’t find complicated legal terms or long passages of unreadable text. We have no desire to trick you into signing something that you might later regret. We do want what’s best for the safety of both parties, now and in the future.
You are hiring us to design and develop a website for the estimated total price as outlined in our proposal. Also, you will have an ongoing monthly services fee payable to us for the items outlined in our proposal. Of course, it’s a little more complicated, but we’ll get to that.
What Do Both Parties Agree To Do?
As our customer, you have the power and ability to enter into this contract on behalf of your company or organization. You agree to provide us with everything that we’ll need to complete the project – including text, images and other information – ideally when we need it and in the format we ask for. You agree to review our work, provide feedback and approval in a timely manner too. Deadlines work two ways and you’ll also be bound by any dates that we set together. You also agree to stick to the payment schedule set out at the end of this contract.
We have the experience and ability to perform the services you need from us and we will carry them out in a professional and timely manner. Along the way we will endeavor to meet all the deadlines set but we can’t be responsible for a missed launch date or a deadline if you have been late in supplying materials or have not approved or signed off our work on-time at any stage. On top of this we’ll also maintain the confidentiality of any information that you give us.
Getting Down to the Nitty Gritty
As we are designing your website, we’ll create designs for the look-and-feel, layout and functionality of your website. This contract includes one main design plus the opportunity for you to make up to two rounds of revisions. If you’re not happy with the designs at this stage, you will pay us in full for all of the work that we have produced until that point and you may either cancel this contract or continue to commission us to make further design revisions at an agreed upon rate.
Your project will include HTML markup and CSS. The landscape of web browsers and devices changes regularly and our approach is to look forward, not back. With that in mind we will test all our markup and CSS in current versions of all major desktop and mobile browsers available to us. Users of older or less capable browsers or devices will experience a design that is appropriate to the capabilities of their software. We do not cater for people using Microsoft Internet Explorer and Safari for Windows, as we cannot predict their behavior since they are no longer supported by their creators. MS Edge is the Windows web browser currently supported by Microsoft. We will also test that these templates perform well on Apple’s iPad. We will not test old or abandoned browsers, for example Microsoft Internet Explorer 6, previous versions of Apple’s Safari, Mozilla Firefox, Google Chrome, or Opera unless otherwise specified.
We may have written a hundred blog posts but we’re not responsible for writing or inputting any text copy on your website unless we specified it in the original estimate. If you find that you need some help with text content, we’ll be happy to help set you up with a content plan or help you find the right person through our referral network.
You will supply us photographs in digital format. If you choose to buy stock photographs, that is fine, but we can suggest providers of free stock photography too.
You guarantee to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide us for inclusion in the website are either owned by your good selves, or that you have permission to use them. If that’s not the case, you agree to indemnify us for any claims that these elements violate someone else’s copyright.
Copyright is automatically transferred to you when we receive your final payment, and at that time, you will own the graphics and other visual elements that we create for you for this project.
We’ll give you a copy of all files and you should store them really safely as we are not required to keep them or provide any native source files we used to make them.
You also own text content, photographs and other data you provided, unless someone else owns them. We love to show off our work and share what we have learned with other people, so we reserve the right to display and link to your completed project as part of our portfolio and to write about the project on websites, in magazine articles and in books about web design. This may include use of your logo and name. We also reserve the right to use the base framework of the website as a starting place for another site. We will not use any of your text, images, or information of any kind.
Changes and Revisions
The estimate/quotation prices at the beginning of this document are based on the amount of work we estimate we’ll need to accomplish everything that you have told us you want to achieve. If you do want to change your mind, add extra pages or templates or even add new functionality, that won’t be a problem. However, you will be charged accordingly and these additional costs will need to be agreed to before the extra work commences. This additional work will affect deadlines and they will be moved accordingly. We’ll be up front about all of this if and when it happens to make sure we’re all on the same page before proceeding. We may also ask you to put requests in writing so we can keep track of changes. If the nature or functions of the project change significantly throughout the process, we reserve the right to deem the current project cancelled. At this point you will pay us in full for all the work we have done and may commission us to complete the new project based on the new requirements. This will require a new quote and contract.
If after 30 Days of no response by you “the client”, then we will assume and consider the project as accepted and finished. In work going forward will require new payment terms. No refunds/discounts/credits shall be given. We promise to be responsive and available throughout the process and expect the same from our clients.
Please understand that while we do service your account for the hard working folks that manage the daily maintenance and upkeep of your server, we do not physically manage the servers on which your website will be hosted. We will make every attempt to find a solution for server related issues for your website and email as they arise. However, it may take a couple days on more complicated matters as there is potential for us to need to contact our server guys and gals.
Here is your payment schedule:
Website Design Upfront Payment
- 100% of website cost is due before work begins, unless otherwise agreed up. Agreement terms will be stated in first invoice
- Contract is for 12 months on the chosen option
- After 12 months, then it will automatically stop billing for this amount.
- Cancellation at anytime during the 12 months will require payment of the remaining months.
- Month-to-month service fee
- Client may choose to cancel at anytime
- Client understands and agrees that account and anything hosted on our servers will be deleted
Note: If you are unable to supply all of the right content at this stage, it does not mean we have not done our job. Once the site has been tested and is ready to go live, either with your content or placeholder images and dummy text, we will issue the final invoice. Once the final invoice is paid we will start into the maintenance phase. If the final invoice is not paid within the credit terms we have given you, we are under no obligation to keep the site on our testing server or continue with the project in anyway.
But where’s all the horrible small print? Here you go:
We can’t guarantee that the functions contained in any web page templates or in a completed website will always be error-free and so we can’t be liable to you or any third party for damages, including lost profits, lost savings or other incidental, consequential, or special damages arising
out of the operation of or inability to operate your website and any other web pages, even if you have advised us of the possibilities of such damages. You agree that our liability under this agreement will never exceed the total amount paid to us over the six month period preceding the claim for which you claim damages.
Just like a parking ticket, you can’t transfer this contract to anyone else without our permission. This contract will stay in place as we are working on your project or hosting your website and does not need to be renewed unless there is a gap in service for more than 90 days, in which case we will consider any new work to be under a new agreement.. If for some reason one part of this contract becomes invalid or unenforceable, the remaining parts and the part that doesn’t work will not affect the validity and enforceability of any remaining parts. Although the language is simple, the intentions are serious and this contract is a legal document under exclusive jurisdiction of the courts of Rutherford County, TN. You agree that any dispute will be governed under the laws of the State of Tennessee without regard to any choice of law.
FREQUENTLY ASKED QUESTIONS
What is information architecture?
Information architecture is the relationship of how all the different pages of a website relate to each other. This relationship is communicated visually through a sitemap.
What is an interactive prototype?
An interactive prototype is a black and white version of your website that is designed to prove the functionality and features as they will work in the browser. No design elements are applied at this stage as the prototype is just built to allow all parties to make final decisions on the functionality.
Why do you use WordPress?
WordPress is open source content management software and currently powers around 25% of all websites on the Internet. The WordPress project is contributed to by tens of thousands of developers all over the world and is growing from strength to strength. WordPress allows us to develop flexible and customizable websites to modern standards and observes web development best practices. Furthermore the community of web developers that use WordPress reaches far and wide and allows us to tap into this collective intelligence and bring that wealth of experience to your project.
Where is the website hosted?
Your website will be hosted within servers provided by our hosting partner unless otherwise agreed upon. We provide high quality hosting that includes SSL, Updates, Security, Email, Domain, all in your own easy to use account.
Who do I call if something goes wrong with the website or I can’t figure something out?
Provided you subscribe to one of our ongoing website care plans, we will be your first point of contact should something go wrong with your website. We will determine whether it is something our hosting partner needs to fix that is covered by your website care plan. We will provide training and video tutorials to assist you in using your website once it is launched.
What happens after the website is launched?
Once your website is launched, we will provide 30 days of support to make sure any bugs have been ironed out and that you are confident using your new website. After this you will need to subscribe to one of our ongoing website care plans to make sure your website is looked after and maintained. These website care plans include updating your software, regular backups, security checks and making sure your website is online and open for business 24/7/365. More information on our website care plans is available upon request.
How long will it take to appear at the top of Google?
Nobody can truly say how long it will take for your website to appear at the top of search engine results pages (including people who actually work for Google), however there are a number of factors that can improve your chances. It depends on the search phrase people are using to find your website and the number of other websites that are also available for those search phrases. Building your website on WordPress is a good start as WordPress has some great Search Engine Optimization fundamentals built-in. Creating unique and interesting content on a regular basis for your website is also critical to increase your visibility amongst search engines. Launching your website and then forgetting about it is a surefire way to get lost amongst the noise.
We are happy to talk to more about your search engine strategy if we haven’t already.
How will I know if anyone is visiting my website?
We will install Google analytics software on your new website and show you how to log into your Google analytics account where you can see a wide range of statistics about your website including number of visits, page views than the amount of time people are spending on your website.
What happens if I want to add some features to the website while you’re building it?
While we like to be flexible and responsive to your needs, we also like to deliver what we promise within the time frames and budgets we have allowed. If you ask us to add new features to your website while we are building it, will most likely ask why? If we all agree that your new request will help us achieve your objectives that we initially agreed upon, then we will be more than happy to oblige. If your new feature idea is something you would like to add to your website but is not directly tied to your original objectives then we will suggest scheduling it for a second iteration once the website launched. We kindly ask that all requests are in writing via email. This will likely require a new proposal and additional costs.