Agreement of Binding Contract for Non-Customized Domains
Agreement Non-Custom Overview
- Non-Custom is the templates provided labeled as 'Basic, Intermediate, and Advance' on the Twizbiz.com Website. All Templates listed on TwizBiz.com use a lightweight WordPress framework. They provide ease in development and editing due to this type of structure for the Client and Designer. Each Template utilizes premium (pro) plugins (Third Party Material) to aid in the final Domain (Website) development.
- The following Agreement is provided for all Clients to clarify any question(s) of the product offered, cost, and requirements of the Client and Designer.
- All Templates or listed as products and are priced. The base price of the template does not include (Domain) fees or and additional services requested by the Client.
- Upfront Statement of Control and Ownership. Control and Ownership sometimes becomes a problematic situation for some clients to understand. A simple and layman or non-legal way to describe both Control and Ownership is by comparing a Domain or Website to a piece of rental property. The rental property has no furniture or appliances and is unfurnished. The rental property, however, has flooring and bathroom conveniences and a dishwasher. The owner thus owns the framework and controls the rental property and some of the appliances. The renter can now bring into the structure of the rental property the furniture, pictures, and other necessities for providing a charming home. The renter can also use the flooring, bathroom conveniences, and the dishwasher. Just because the renter is allowed to use the bathroom conveniences, flooring, and the dishwasher does not mean the renter owns them. TwizBiz owns controls the rental property and provides the framework and amenities for the renter. The features added by the renter to make a home is own by and controlled by the renter. Thus if the rental property owner needs to update a security problem, the owner can do so. Also, if the renter would like to change the bedroom furniture, the renter has that control.
Basic Terms and Conditions
As used herein and throughout this Agreement:
1.1 Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s).
1.2 Client Content means all materials, information, photography, writings, and other creative content provided by Client for use in the preparation of and incorporation in the Deliverables.
1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.
1.4 Deliverables means the services and Template to be delivered by Designer to Client, in the form and media specified as a Website.
1.5 Designer Tools means all design tools developed or utilized by Designers in performing the Services. Including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 Final Art means all creative content developed, created, or commissioned by the Designer, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables. Including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Designer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 Final Deliverables means the final versions of Deliverables provided by Designer and accepted by Client.
1.8 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Designer and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
1.9 Project means the scope and purpose of the Client’s identified usage of the work product.
1.10 Services means all services and the work product to be provided to Client by Designer.
1.11 Third Party Materials means proprietary third party materials incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.12 Trademarks means trade names, words, symbols, designs, logos, or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
2. FEES AND CHARGES
2.1 Fees. In consideration of the Services to be performed by Designer, and all applicable sales, use or value-added taxes, even if calculated or assessed subsequently.
2.2 Additional Costs. Project pricing includes the Designer’s fee only. All outside costs, including, but not limited to, equipment rental, photographer’s costs and fees, photography and artwork licenses, prototype production costs, talent fees, music licenses, and online access or hosting fees, will be billed to Client unless specifically otherwise agreed.
2.3 Invoices. All invoices are payable within days of receipt. A monthly service charge of % [or the greatest amount allowed by state law] is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. The client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Designer reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer the ownership, including intellectual property rights under this Agreement with stipulations conditioned upon receipt of payment in full. Additional Costs and include Taxes, Expenses, and Fees, Charges, or the costs of Changes.
3.1 General Changes. Unless otherwise provided in a written agreement, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client, which are outside the scope of the Services on a time and materials basis, at Designer’s standard hourly rate of per hour. Such charges shall be in addition to all other amounts payable under the 'The Fees'.
3.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least % of the time required to produce the Deliverables and or the value or scope of the Services, Designer shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed Proposal Agreement.
3.3 Timing. The designer will prioritize the performance of the Services as may be necessary or, as identified in the Proposal and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. The client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer. The Designer shall be entitled to request written clarification of any concern, objection, or correction. The Designer’s ability to meet all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals or instructions according to the Proposal and that any delays in Client’s performance can directly impact and delay the delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition, or Designer’s obligations under this Agreement.
3.4 Testing and Acceptance. The designer will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections before providing Deliverables to the Client. Client, within five business days of receipt of each Deliverable, shall notify Designer, in writing, of any failure of such Deliverable to comply with the specifications outlined in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction, or change or amendment, and Designer will undertake to make the same in a commercially timely manner. All objections, corrections, changes, or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from the Client, the acceptance of the amendments and Deliverable.
As per the Laws of the State of Colorado and shall have Governing Laws and be considered a Contract of Agreement between said parties;
Client, Designer, TwizBiz LLC
Governing Law and Dispute Resolution. The formation, construction, performance, and enforcement of this Agreement shall be following the laws of the United States and the state of Colorado without regard to its conﬂict of law provisions or the conﬂict of law provisions of any other jurisdiction. In the event of a dispute arising, the parties agree to attempt to resolve any dispute by negotiation. If they are unable to resolve the dispute, either party may commence mediation or binding arbitration through the American Arbitration Association, or another forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties’ speciﬁcally consent to the local, state, and federal courts located in the state of Colorado. The parties, as a result of this, waive any jurisdictional or venue defenses available to them and further consent to service of process by Postal Mail and Electronic Mail. In the event, the Client uses the deliverables in any way not permitted hereunder, and as a result of this agrees that Designer shall be entitled to equitable relief through a temporary and permanent injunction. Such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem and proper, in addition to any other remedies provided for herein.
Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be active and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect, and a valid or enforceable provision shall replace the invalid or unenforceable provision
4. RIGHTS IN THE FINAL DELIVERABLES
4.1 Final Works. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, Designer with this grants to Client the exclusive, perpetual and worldwide right and license to use the Final Works solely in connection with the development of the Domain.
4.2 Trademarks. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, Designer assigns to Client all of the Designer’s rights to Trademarks created for the use of the Domain. The Designer shall cooperate with Client and shall execute any additional documents reasonably requested by the Client to evidence such assignment. The Client shall have sole responsibility for ensuring that Trademarks do not infringe on the rights of third parties. Furthermore, the Client shall indemnify, save and hold harmless Designer from all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions, for the use of Trademarks.
4.3 Client Content. Client Content shall remain the sole property of the Client. TwizBiz is not responsible for any of the Client' respective suppliers. Or its suppliers shall be the sole owner of all trademark, trade secrets, patents, Copyrights, and other rights in connection in addition to that except for Third Party Materials. The client with this grants to Designer a nonexclusive, nontransferable license. The license allows the Designer to use, reproduce, modify, display, and publish the Client Content.
4.4 Third Party Materials. The respective third parties shall own intellectual property rights in Third Party Materials. The Designer shall inform the Client of all Third Party Materials to be procured by Designer that Client may need to license at Client’s own expense is the movement of the Domain to a different hosting company. The Non-custom Domain's, the Designer shall obtain a license for the Client to use the Third Party Materials consistent with the usage rights granted herein. Client shall indemnify, save and hold harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Works.
4.5 Designer Tools. Designer Tools and all intellectual property rights therein shall be owned solely by Designer. The Designer grants to the Client the following license to use the Designer Tools only with the Final Deliverables. The license includes the perpetual, worldwide license to use the Designer Tools with the Final Deliverables. The Client does not have the right to sublicense such uses to the Client’s publisher, web hosting, or Internet service providers.
5. LIQUIDATION RIGHTS
5.1 Liquidation for Unlicensed Use. The client’s use of the Deliverables shall be limited to the usage rights granted herein for the Domain only. If the Client, or its agents, use the Final Works or other Deliverables for another project or outside the scope of the rights granted herein, the Designer shall be entitled to further compensation. Such compensation equals a 100 percent (100 %) developers custom fee at current value unless otherwise agreed in writing by both parties.
- Client. Client represents, warrants and covenants to Designer that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content. (b) To the best of Client’s knowledge. The Client Content is accurate, legal, conforms to ethical standards of the industry standards, and does not infringe on the rights of any third party. And the use of the Client Content, encluding Trademarks in connection with the Domain, does not violate the rights of any third parties. (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
Designer. (a) Designer with this represents warrants and covenants to the Client the Services professionally identified in the Agreement. And per all reasonable professional standards for such services. (b) The designer further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Designer, its independent contractors, or third party material. (ii) If the Final Deliverables include the work of independent contractors commissioned for the Project by Designer, the Designer shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables. The Designer to give the intellectual property rights provided in this Agreement, and (iii) to the best of the Designer’s knowledge, the Final Works provided by Designer and Designer’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. If the Client modifies or uses the Deliverables outside of the scope not identified in this Agreement contrary to the terms and conditions, all representations and warranties of Designer shall be void.
Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or deﬁciencies, but shall not include the development of the framework or content beyond scope of the existing site without negotiation of payment for such actions for Two (2) months or 60 days from date of delivery (activated or published). During the first month after the publishing of said website, the Designer shall provide up to 4 hours of Support Services at no additional cost to Client. Extra time is sometimes needed and billed at Designer’s regular hourly rate of $35.00/hour.
After the Initial Warranty Period of 30 days all design and plugin repairs are rated a $35.00/hour regular hourly rate.
During the Maintenance Period, the Client may request that Designer develop enhancements to the Deliverables, and the Designer shall exercise commercially reasonable efforts to prioritize resources to create such improvements. Both parties must agree on a charge for the changes with any materials used before changes taking effect.
Deficiencies by Designer. Subject to the representations and warranties of Client in connection with Client Content, Designer represents and warrants that the Final Deliverables will be free from Deﬁciencies. For the purposes of this Agreement, “Deﬁciency” shall mean a failure in any material respect, but shall not include any problems caused by Client Content, modiﬁcations, alterations or changes made to Final Deliverables by Client or any third party after delivery by Designer, or the interaction of Final Deliverables with third-party applications such as web browsers. The parties acknowledge that the Client’s sole remedy and Designer’s sole liability for a breach of this Section is the obligation of the Designer to correct any Deficiency identified within the Warranty Period.
Deficiencies by Client. Subject to the representations and warranties of the Designer in connection with the final product, it is in the best interest of the Client to understand the standards of SEO (Search Engine Optimization) and restriction and requirements. Web Designers are required to comply with the Americans with Disabilities Act and Section 508 of the Workforce Investment Act and the dedication of all Designers to provide the best Website for all persons to see, hear, and with mechanical aid maneuver with understanding the complete Website.
Disclaimer of Warranties. During the warranty period, it is at the client’s discretion to allow others to have access to edit the content, but if the theme or frame of the website is changed and the site crashes, the could remove the described warranty. If the Client or Agent of the Client causes a Loss or Breakage of the website brought on by persons uploading ‘viruses, spam, infested images without virus or malware filtering or improper changes to passwords, the warranty is void.
The designer has used commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the applicable rules and regulations, such as the Americans with Disabilities Act (“ADA”). However, the Designer is not an expert and makes no representations or warranties in connection with compliance with such rules, codes, or regulations. The observance of the Final Deliverables with any such, laws, or provisions shall be the responsibility of Client. The designer shall use commercially reasonable efforts to ensure the suitability and conformance of the Final Deliverables.
Client liberties are ensuring that all information and claims comprising Client Content are accurate, legal, and conform to applicable standards in the Client’s industry.
Payment terms Client is required to make full payment within as dated on the invoice is received via email. A monthly service charge of 1.5 percent (or the highest amount allowed by state law) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. The client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. The Designer reserves the right to withhold delivery and any transfer of ownership of any current work if the account is not up to date (paid in full) per billing invoice. All grants of any license for use or transfer of ownership of the Domains intellectual property rights under this Agreement and conditioned upon receipt of payment in full. Payments shall be inclusive of all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.
The website will be placed on maintenance notice after 30-days non-payment and removed from Internet Service on the 60th day. The invoice includes the accumulation of Charges for Hosting service at the current hosting rate.
The non-payment will result in the termination of the services to keep the Domain as a Website.
By Client. Client agrees to indemnify, save and hold harmless Designer from all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Designer shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Designer provides Client with commercially reasonable assistance, information, and authority necessary to perform Client’s obligations under this section. The client will reimburse the reasonable out-of-pocket expenses incurred by the Designer in providing such assistance.
By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any ﬁnding of fact which is inconsistent with Designer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arising directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notiﬁes Designer in writing of the claim; (b) Designer shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide the Designer with the assistance, information and authority necessary to perform Designer’s obligations under this section. Notwithstanding the preceding, the Designer shall have no obligation to defend or otherwise indemnify Client for any claim or adverse ﬁnding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Designer.
By their execution below, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature below, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.