By accepting The Design People, Inc.’s (TDP) Terms of Service (TOS) electronically or in writing, and/or by using TDP’s services, including but not limited to, submission of content to TDP’s design department, payment or authorization of payment, Client agree to be bound by the following terms and conditions.
TDP provides its services to Client subject to the following TOS, which may be updated from time to time without notice. Client may review the most current version of the TOS at http://www.TheDesignPeople.com/tos.htm. Failure to comply with the TOS may result in account termination. By using TDP’s services Client agrees to (and hereby signs) the most current version of the TOS. If Client does not expressly reject the TOS at the point of sale, Client agrees to (and hereby signs) the TOS and TDP is instructed to commence work on Client’s website as if Client had expressly accepted the TOS.
2. Time for Payment
Payment is due at each milestone upon acceptance of the Deliverables and/or Payment Schedule by Client. All invoices are payable within ten (10) days of receipt. A 1% monthly service charge is payable on all overdue balances after a grace period of fifteen (15) days. The grant of any license or right of copyright is conditioned on receipt of full payment.
3. Default in Payment
Client shall assume responsibility for all collection of legal fees necessitated by default in payment.
4. Expenses
Client shall reimburse TDP for all Client approved expenses arising from this assignment, including the payment of any sales taxes due on this assignment.
5. Internet Access
Access to Internet will be provided by a separate Internet Service Provider (ISP) to be contracted by Client and who will not be party to this agreement.
6. Electronic Delivery Policy
TDP is a website-related business and communicates with its Clients electronically. When Client accepts this Terms of Service Client consents to receive electronically from TDP any notices, progress reports, agreements, disclosures, or other communications (Notices). Client agrees that TDP may send electronic Notices in either of the following ways. 1) To the email address provided to TDP at the time of sale or 2) to the new email address account Client set up through TDP. Client agrees to check the designated email addresses regularly for Notices. Notice from TDP is effective when sent by TDP, regardless of whether the Notice is read or received by Client.
7. Website Construction Procedure
With help and input from Client, TDP will prepare the appropriate custom design and work with the content provided by Client for development of the site. Client must submit content to the design department before site construction begins on the custom website. Client must submit content through the Design Meeting Packet (DMP). Client must electronically accept the TOS before access is granted to the DMP. After content is submitted by Client the website is developed. Prior to the website being taken live Client will receive a missing information notification if content is incomplete. Client will then have two weeks to submit complete content. If complete content is not received the website will then be taken live “as-is”. If the website is taken live without all of the pages completed due to incomplete content those pages may be banked and developed in the future using Client’s design time.
In submitting content through the DMP, links to sample sites Client likes are for general information purposes only and assist TDP with the design of Client’s custom website. The functionality and detail of the sample sites will not be duplicated unless such functionality and detail are specifically included and itemized in TDP’s proposal.
The design and content layout are completed by the designer and presented to Client for approval. After Client approves the website, the website will go live. The TDP QA team may review the text before site goes live to correct any possible errors. TDP will not be held liable for accuracy of information, typos, or spelling errors in any of the content approved by Client and published on the website. Client will be notified by email that the website is now live.
Client understands, agrees and acknowledges that TDP does not guarantee a time frame for completion of ANY custom website. A custom website cannot be completed without submission of complete content, design approvals and participation from Client. If Client continues submitting additional content throughout the design process, the design time frame is increased. If Client does not submit complete content and TDP is not able to start or complete the custom website design, Client is still responsible for all fees incurred including, but not limited to, set-up, enhancement and monthly hosting charges that begin accruing from date of sale. If Client’s website requires custom programming, functionality, flash, e-commerce or the use of a database, the overall development time will be extended.
Client is provided with a space holder immediately after sale. Upon request, client is also provided with an optional welcome website shortly after the initial sale. The welcome website is a temporary website Client can modify and send customers to while the custom website is being built. Client may choose not to have a welcome website if so desired.
8. Progress Reports
TDP shall contact or meet with Client on a mutually acceptable schedule to report all tasks completed, problems encountered, and recommended changes relating to the development and testing of the website. TDP shall inform Client promptly by telephone or e-mail upon discovery of any event or problem that may delay the development of the work significantly.
9. Developers Guarantee for Program Use
TDP guarantees to notify Client of any licensing and/or permissions required for art-generating/driving programs to be used.
10. Changes/Revisions
TDP shall deliver to Client the web program and other materials developed by TDP in accordance with the terms specified in this proposal. Any additions or changes requested outside of the scope of the original proposal, either prior to the custom website going live or after site has gone live will be billed at TDP’s standard hourly rate. TDP is not obligated to complete Client requests or changes outside of the scope of work on the original proposal. If TDP does not agree to Client requests or changes, Client is still obligated to pay all fees incurred and due. Client shall be provided two (2) opportunities to alter the proposed web design after the delivery of the concept designs to Client for review; two (2) opportunities to alter the proposed web program after all user requirements and functional requirement have been completed.
11. Testing and Acceptance Procedures
TDP will make every good faith effort to test all deliverables thoroughly and make all necessary corrections as a result of such testing prior to handing over the deliverables to Client Upon receipt of the deliverables, Client shall either accept the deliverable and make the milestone payment set forth herein or provide TDP with written or e-mail notice of any corrections to be made and a suggested date for completion which should be mutually acceptable to both TDP and Client. TDP and Client shall each designate one representative as the only designated persons who will send and accept all deliverables and receive and make all communications between TDP and Client Neither party shall have any obligation to consider for approval or respond to materials submitted other than through the designated persons. Each party has the right to change its designated person upon 2 days notice to the other.
12. Client Approval
Client is responsible for testing the functionality of the website upon TDP's request for approval, and notification that the website has been completed. This includes, but is not limited to, functionality of all website pages, database, e-commerce store, payment functions, galleries, forums etc. Upon Client approval of the website to go live Client agrees services have been rendered and functionality of website has been tested and approved by Client.
Client understands and agrees that if Client does not respond within 5 business days to TDP’s request for approval, and notification that the website has been completed, the website along with the functionality of the website and services rendered, will be deemed to be approved by Client, and the website will be taken live “as-is”.
Client understands and agrees that if Client does not respond to requests for missing information a final notification will be sent to Client. If Client does not respond within 5 business days to TDP’s notification or requests for missing information, the website, along with the functionality of the website and the services rendered, will be deemed to be approved by Client, and the website will be taken live with the missing information “as-is” or “under construction”.
13. Warranty Period
TDP agrees to provide Client with reasonable technical support and assistance to maintain and update the web site on the Internet during the warranty period of sixty (60) days after publishing the website to its final domain name at no cost to Client Such assistance shall not exceed a total of ten (10) hours. The warranty period shall not include the development of enhancements to the originally contracted project.
14. Website Maintenance
After the expiration of the Warranty Period Client may opt to enter into a new agreement for website maintenance wherein TDP agrees to provide a reasonable technical support and assistance to maintain and update the website on the Internet for an agreed upon hourly fee after the last day of the Warranty Period payable upon any start of maintenance work. Such maintenance shall include correcting any errors or any failure of the website to conform to the specifications and the development of enhancements to the originally contracted project.
15. Enhancements
Under the maintenance agreement, if Client wishes to modify the website, TDP shall be given first option to provide a bid to perform such enhancements.
16. Confidential Information
TDP acknowledges and agrees that the source materials and technical and marketing plans or other sensitive business information, as specified by Client, including all materials containing said information, which are supplied by Client to TDP or developed by TDP in the course of developing the Website are to be considered confidential information. Information shall not be considered confidential if it is already publicly known through no act of TDP.
17. Call Monitoring and Recording Privacy Statement
As part of TDP’s commitment to providing the best possible service TDP may monitor and record phone calls answered by TDP and made by TDP. TDP may also archive recorded voice mail messages. TDP records calls for training purposes, to improve customer service, and to ensure an accurate record of Client calls, which may be needed to support transactions that take place over the phone. This allows TDP to identify how TDP can better serve its customers.
18. Unacceptable Practices
As TDP strives to offer the very best service, there are certain guidelines and policies that must govern TDP’s efforts and relationships with its Clients. Practices that are in violation of these guidelines and policies are strictly forbidden and will result in the immediate termination of TDP’s services. Such decisions are at the sole discretion of The Design People, Inc. Unacceptable practices include, but are not limited to:
- Adult or pornographic material including, but not limited to, sexually explicit or suggestive material
- Sexually oriented products or material
- Nudity, including airbrushing (exceptions granted on a case-by-case basis if for medical or artistic purposes)
- Offensive or otherwise distasteful material
- Bulk emailing tools
- Distribution of internet viruses or other harmful or destructive activities
- Gambling, gaming, lotteries, and like activities
- Harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, racial, chauvinistic, ethnically offensive or otherwise objectionable content or language
- Defamatory, hateful or revenge content or language.
- Content or language that is harmful to minors in any way
- Illegal activities such as ponzi schemes, fraudulent charging of credit cards, copyright violations, plagiarism, software piracy, and all unauthorized use of materials or content that infringes on third parties’ intellectual properties
- Intentional or unintentional violations of any applicable local, state, national or international law.
- Reselling email accounts or hosting accounts to third parties
- Reselling of any TDP services including, but not limited to, design services, updates, and WTD to third parties without a written re-seller agreement.
- Spamming and all other forms of unsolicited messages including, but not limited to, spam, pyramid schemes, chain letters, and junk email
- Links to other sites that are in violation of The Design People Inc.’s policies and guidelines
- Other activities, whether lawful or unlawful, that TDP deems to be in poor taste or that reflect adversely on TDP or TDP’s other clients
- TDP reserves the right to refuse to design or host an account at its sole discretion at anytime.
As a TDP Client you may have access to editing tools for your website. Client may edit, add or delete content to the website at anytime. With this understanding TDP may or may not pre-screen content. TDP shall have the right (but not the obligation) to pre-screen and refuse or remove any content at its sole discretion. Client agrees that Client bears all risks associated with the use of all content, whether edited or written by TDP or not, including any reliance upon accuracy, usefulness or completeness.
Client acknowledges that TDP may access, preserve, and disclose Client’s account information and content if required to do so by law or in a good-faith belief that such access, preservation, or disclosure is reasonably necessary to comply with legal processes, enforce the TOS, provide customer service or protect the rights, property, or safety of TDP and the public.
19. Termination/Cancellation of Services
In the event of cancellation of this assignment, Client retains ownership of all completed design work that has been paid for in full. Any other copyrights and original artwork shall be retained by TDP.
TDP, at its sole discretion, may terminate its service and remove and discard any content, for any reason, including and without limitation, for lack of use, or if TDP believes Client has violated the TOS. TDP may also at its sole discretion and at any time, discontinue providing services, or any part thereof, with or without notice. Client agrees that any termination of access to TDP’s services under any provision of this TOS may be effected without prior notice and that TDP may deactivate or delete Client’s account and all related information files. Client agrees that TDP shall not be liable to Client or any third-party for any termination of services. Paid accounts that are terminated will not be refunded. In addition, accounts that become 30 days delinquent will be terminated. TDP also reserves the right to discontinue the designing of Client’s website at any time, at TDP’s sole discretion, with an appropriate refund to Client. Under no circumstances is the refunded amount to exceed the amount collected by TDP.
If Client cancels an account before the work is completed or site is live, a cancellation fee is retained per the Cancellation Fee and Refund Policy. Client agrees that all fees incurred and billed prior to cancellation effective date are valid and Client agrees to pay. Upon request for termination of services the website will be removed. A back-up copy of the website is not maintained by TDP.
Client agrees to pay all hosting fees and additional services fees owed from the time of sale until the cancellation effective date, and at a minimum for hosting fees for one year. Transferring a domain name to another provider or non-use of Client’s hosting account does not constitute termination of the account. Client must notify TDP in writing or via email to terminate the account services and avoid further monthly hosting charges. It is Client’s responsibility to secure confirmation from TDP that the request for termination has been received and no further hosting fees will be billed.
Requests for cancellation of website hosting services or additional services should be sent to the following address: Attn: Billing Department, The Design People, 4505 Glencoe Ave., Marina del Rey, CA 90292.
Requests may be emailed to billing@TheDesignPeople.com. If Client chooses to send request by email, a copy of the request must also be sent by mail as confirmation.
20. Cancellation Effective Date
Client may terminate hosting services with 30 days written notice, after one full year of paid hosting. The effective date of cancellation is to be 30 days from the date of TDP’s receipt of written notice to cancel. Any monthly fees scheduled to bill after receipt of written notice to cancel but before the effective date of cancellation are valid and client agrees to pay.
If Client has not paid all design, enhancement, hosting and additional services fees due, such fees are due in full at the time of cancellation and Client authorizes TDP to collect any outstanding fees due, subject to the Cancellation Fee and Refund Policy. Client understands any pending billing for design fee installments previously agreed to will not be cancelled.
21. Cancellation Fee and Refund Policy
WEBSITE DESIGN/DEVELOPMENT - Refunds of the fees paid for development of the website may be issued on accounts cancelled within 90 days of the initial sale and prior to the completion of the website according to the following schedule:
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A) A minimum of a 50% cancellation fee will be retained by TDP on cancelled accounts even if no work has been started and no content yet submitted by Client.
B) A minimum of a 75% cancellation fee will be retained by TDP on cancelled accounts if work has been presented to Client; or TDP has made multiple attempts to work with Client, and Client has not responded to those attempts.
C) A 100% cancellation fee will be retained by TDP and NO REFUND issued if any changes and/or modifications requested by Client have been completed by TDP. No Refund will be issued on any website cancelled after services have been rendered, including but not limited to, the design work having been completed and/or the website taken live.
D) 100% cancellation fee will be retained and NO REFUND will be issued by TDP if Client cancels after 90 days from the initial sale.
ENHANCEMENT SALES - A 100% cancellation fee will be retained by TDP and NO REFUND will be issued once work has begun on any enhancements purchased, including, but not limited to, databases, programming, logos, flash, galleries, rollovers, e-commerce stores etc. Client agrees that a minimum cancellation fee of 50% will be retained by TDP on all cancelled enhancement purchases if cancelled within 90 days of the enhancement sale and if work has not yet begun. NO REFUND will be issued by TDP if client cancels after 90 days from the enhancement sale. Enhancements or additional services purchased after the initial sale are separate purchases and are in addition to and separate from the original sale. If a client cancels an enhancement the original sale is not cancelled.
MONTHLY HOSTING – Client agrees that there is NO REFUND of monthly hosting fees or monthly additional services fees incurred or paid by Client prior to cancellation date.
Client agrees that all fees incurred and billed prior to cancellation date are valid and Client agrees to pay. (See Termination).
22. Copy-Protection
Client must copy-protect all final art which is the subject of this agreement against duplication or alteration.
23. Intellectual Property Policy
TDP respects copyright laws and the intellectual property of others. TDP may terminate accounts for copyright infringement.
TDP will not use copyrighted or trademarked materials on any Client’s website without the express written consent of the copyright or trademark owner. It is Client’s responsibility to ensure that all content submitted to TDP is original content and free from third-party copyright or trademark protection, or to obtain permission to use from the copyright or trademark owner. Client assumes full liability for any copyright or trademark infringement of Client’s website on any third-party copyright or trademark, including, but not limited to, any infringement due to website content, website design or the look and feel of Client’s website.
(See Unacceptable Practices)
Customer content that is sent to TDP will remain the intellectual property of Client. TDP does not return original content to Client. Unless a request to return the original content to Client is made in writing upon submission of the content, the content will be destroyed. TDP will attempt to honor requests to return original content; however, TDP has no liability and does not guarantee the return of any content to Client.
Domain names purchased by TDP and website designs, databases, stores, or programs created by TDP are the property of TDP until Client has paid all fees including one full year of monthly hosting. (See Domain Names Purchase/Hosting Agreement)
24. Other Operating Systems Conversions
TDP shall be given first option at compiling the work for operating systems beyond the original use.
25. Unauthorized Use and Program Licenses
Client will indemnify TDP against all claims and expenses arising from uses for which Client does not have rights to or authority to use. Client will be responsible for payment of any special licensing or royalty fees resulting from the use of graphics programs that require such payments.
26. Warranty of Originality
TDP warrants and represents that, to the best of his/her knowledge, the work assigned hereunder is original, or that consent to use has been obtained on an unlimited basis; that all work or portions thereof obtained through the undersigned from third parties is original or, if previously published, that consent to use has been obtained on an unlimited basis; that TDP has full authority to make this agreement; and that the work prepared by TDP does not contain any scandalous, libelous, or unlawful matter. This warranty does not extend to any uses that Client or others may make of TDP’s product which may infringe on the rights of others. Client EXPRESSLY AGREES THAT IT WILL HOLD TDP HARMLESS FOR ALL LIABILITY CAUSED BY CLIENT’S USE OF TDP’S PRODUCT TO THE EXTENT SUCH USE INFRINGES ON THE RIGHTS OF OTHERS.
27. Limitation of Liability
Client agrees that it shall not hold TDP or his/her agents or employees liable for any incidental or consequential damages which arise from TDP’s failure to perform any aspect of the Project in a timely manner, regardless of whether such failure was caused by negligent acts or omissions of TDP or a third party. Furthermore, TDP disclaims all implied warranties, including the warranty of merchantability and fitness for a particular use.
28. Dispute Resolution
Any disputes in excess of $2,500 arising out of this Agreement shall be submitted to binding arbitration before the Joint Ethics Committee or a mutually agreed upon arbitrator pursuant to the rules of the American Arbitration Association. The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof. The non-prevailing party shall pay all arbitration and court costs, reasonable attorney’s fees, and legal interest on any award of judgment.
29. Confidential Proposal
Pricing, design process, specifications phase information and all other data provided by TDP contained in this proposal should be deemed as proprietary and confidential. Client will not use, share, publish or sell data for marketing or any other purpose without the express written consent of TDP.
30. Ownership
Upon completion of the site development and final payment, Client will have ownership of the site files.
