Web Site Design Service Agreement
If you accept this Agreement without reading it in its entirety, you are still bound by this Agreement in its entirety. The following is the entire service agreement between Tropical Web Shop Inc. (Tropical Web Shop) and the personal or corporate account holder (You / Your). In addition to the terms and conditions in the General Terms of Service Agreement, the following additional terms and conditions shall apply to Your purchase of Web site Design and Development Services, (as defined below).
1.0 Description of Web site Design and Development Services
1.1. Tropical Web Shop will build a Web site for You, based upon direction and input provided to us by You. The Web site Design and Development Service may be referred to as the "Design Services." Subject to the terms and conditions of this Agreement and during the term of this Agreement, Tropical Web Shop agrees to provide to You the Design Services described on the Tropical Web Shop Web site and purchased by You during the sign-up process. Tropical Web Shop reserves the right to amend its Design Services offerings and to add, delete, suspend or modify the terms and conditions of such Design Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
1.2. You hereby grant to Tropical Web Shop and its vendors and subcontractors all necessary rights and licenses with respect to the Your Web site created by Tropical Web Shop in order to carry out its obligations under this Agreement and to make a reasonable number of archival or back-up copies as deemed necessary by Tropical Web Shop. Tropical Web Shop is not responsible for archiving documents, graphic work, physical goods, or web pages created for You or documents, graphic work, physical goods or files which are mailed, e-mail or faxed to Tropical Web Shop. Tropical Web Shop is not responsible for returning any files, documents, or physical goods e-mailed, faxed, or mailed to us.
1.3. The Web site Design Service is an offering whereby You can request that Tropical Web Shop assist You with the design of a Web site using Open Source Web site building tools. Such tools may also include or utilize third party applications. The Website building tools use the WordPress®, Drupal®, and PrestaShop® software applications and default templates, which are subject to terms and conditions of the GNU General Public License (). Additionally, we use open source plug-ins to accomplish functionality requests with WordPress, Drupal, and PrestaShop. We cannot guarantee these plug-ins will be supported in all browsers or that they will continue to function if You update the WordPress, Drupal, or PrestaShop version without our assistance.
1.4. Custom Web Site Design Services. As part of our Web Site Design Service, Your design may be dictated by a Statement of Work. This level of service is an offering whereby You can request that Tropical Web Shop design and create a Web site for You using sophisticated graphics, advanced layouts and other features. Although Tropical Web Shop will custom design Your Web site, Your Web site may contain some features and design elements used in other Web sites designed by Tropical Web Shop. If Your design falls into this group, in addition to the terms and conditions set forth in this Services Agreement, You shall be bound by the terms of the Statement of Work, which shall be prepared by Tropical Web Shop and mutually agreed to by You and Us. The Statement of Work may contain, but may not be limited to, a list or description of the services our Designers will provide to You as part of the Custom Web Site Design Services, a list of technical, graphic or other special features that will be incorporated into Your Web site, the schedule for delivery of the Final Product, applicable fees and payment schedule, and a description of any applicable cancellation fee or policy. This Statement of Work shall become a part of this Services Agreement and shall be subject to all terms and conditions of the Services Agreement.
2.0 Your Obligations - In order for Tropical Web Shop to perform the Design Services in accordance with this Agreement, You shall be responsible for doing the following:
2.1. Providing Tropical Web Shop with all information requested as well as any custom images (including, but not limited to, design, pamphlets, brochures, logos, and other images) that You wish to use in connection with the design and development of Your Web site.
2.2. Contacting Tropical Web Shop promptly to make changes, modifications, and enhancements to Your Web site starting from the date of sale.
2.3. Contacting Tropical Web Shop promptly with notice of Your decision to cancel or discontinue the Design Services starting from the date of sale.
2.4. Obtaining Internet connectivity to access Your Web site, to send and receive e-mail, and to otherwise access and utilize the Internet.
2.5. Ensuring that the Web site content provided by You does not infringe or violate the Intellectual Property Rights (including, but not limited to, trademarks, trade names, copyrights, patents, domain registration rights, and trade secrets) or any other right of any third party (including, but not limited to, rights of privacy and contractual rights), and acquiring any authorization(s) necessary to use intellectual property or other proprietary information of third parties. By using the Design Services, You represent and warrant that any name or word submitted to be used as all or part of the URL associated with Your Web site does not infringe any trademark or domain name rights of any third party.
2.6. Ensuring the accuracy of materials provided to Tropical Web Shop, including, without limitation, Web site content, descriptive claims, warranties, guarantees, nature of business, and Your contact information.
2.7. During any stage of the design process, a designer or project manager will be working with You to gather information to start, feedback to revise, or approval to complete Your Web site. Prompt response will be necessary for the project to move forward in a timely manner. If a response is not received from You for more than 90 days, the design project is considered "abandoned" and payment is surrendered in full. Tropical Web Shop reserves the right to charge You a fee for repeated missed consultations, repeated rescheduling of consultations related to any Web site design work, and/or the reinstatement of Your Web site design to an active status if no response has been received from You for 60 days.
2.8. Following the time line of activities provided in the Web Site Design Studio Department Tickets of Your Client Area or those communicated to You via e-mail.
3.0 Information and Content You Provide - If You provide any information that is untrue, inaccurate, incomplete, or not current, or we have reasonable grounds to suspect that such information is untrue, inaccurate, incomplete, or not current, Tropical Web Shop has the right to suspend or terminate Your account and refuse any and all current or future use of the Design Services (or any portion thereof). You acknowledge that Tropical Web Shop does not pre-screen Content and images. However, Tropical Web Shop and its designers shall have the right to remove any Content that violates the Acceptable Use Policy. You agree that You must evaluate, and bear all risks associated with the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, You acknowledge that You may not rely on any Content created by Tropical Web Shop.
4.0 Non-Interference By You - You will use the Design Services in a manner that does not interfere with or disrupt other network users, services, or equipment, and Tropical Web Shop reserves the right to terminate or suspend the Design Services without notice if such interference is determined to exist. Such interference or disruption includes, but is not limited to:
4.1. wide-scale distribution of messages, including bulk e-mail or unsolicited spam e-mail, or wide-scale distribution of messages to inappropriate mailing lists, newsgroups, or other public or private forums,
4.2. propagation of computer worms or viruses, and
4.3. use of the network to make unauthorized entry to other computational, information, or communications devices or resources. This includes unauthorized security probing activities or other attempts to evaluate the security integrity of a network or host system without permission.
5.0 Unauthorized or Inappropriate Use
5.1. Tropical Web Shop reserves the right to deny, terminate, or suspend Design Services without notice if, in Tropical Web Shops' sole discretion, the Design Services are used by You in a manner that violates or may violate the following standards or the AUP. And, Tropical Web Shop reserves the right to reject, alter, modify, or remove Your Web site, Web site domain name, URL address, or any Web site content (including, but not limited to, any language, words, text, photographs, designs, drawings, graphics, images, symbols, or logos), which Tropical Web Shop in its sole discretion deems to be in violation of the AUP or (i) an infringement on or a mechanism designed to facilitate the infringement of a propriety interest of any third party, including without limitation, any copyright, trademark, domain registration right, trade secret, or patent right, or (ii) stating or implying that the Web site is placed by Tropical Web Shop or any party with a contractual relationship with Tropical Web Shop, or that such parties endorse Your products or services, or (iii) pornographic or obscene.
5.2. Tropical Web Shop neither sanctions nor permits hosted site content or the transmission of data that contains illegal or obscene material or fosters or promotes illegal activity. Tropical Web Shop reserves the right to immediately suspend or terminate any site or transmission that violates this policy, without prior notice. In the event of such termination, You agree that the unused portion of any fees You may have paid for any services rendered to You by Tropical Web Shop are an appropriate recompense to Tropical Web Shop for the time required to respond to and address issues created by Your illegal or obscene site/content, and You agrees not to seek recovery of those fees. Further, should You violate this Agreement or the AUP, Tropical Web Shop will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about You, Your Web site, the illegal or obscene content, and those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.
6.0 Additional Indemnification Obligations - In addition to Your indemnification obligations set forth elsewhere in this Agreement, You agree to defend, indemnify, and hold harmless Tropical Web Shop and each of its officers, directors, employees, agents, affiliates, co-branders or other partners, and employees of any of the foregoing, from, against, and in respect of: (i) any and all losses, damages or deficiencies resulting from any third party claim in connection with Your Web site (including, but not limited to, Web site content) or the URL and (ii) all costs and expenses incident to any and all actions, suits, proceedings, claims, demands, assessments, or judgments in respect thereof regardless of the merit thereof, including reasonable legal fees and expenses (whether incident to the foregoing or to Tropical Web Shops' enforcement of said rights or defense and indemnity).
7.0 Ownership of Your Content - With the exception of Your ownership interest in the information, materials, images, photos and other content that You provide to us for inclusion in Your Web site, ownership interest to Your Website, including, but not limited to, the HTML coding, scripting, copyrights, visual layout, appearance and design and all other intellectual property rights, shall be with Tropical Web Shop and Tropical Web Shop grants you a non-exclusive, revocable license to use these design elements and related applications. Tropical Web Shop shall also have the right to display Your Web site on its online properties as an example of the design work Tropical Web Shop is able to provide for its customers. With respect to use of Images for Design Services, the following terms and conditions apply to ownership rights:
7.1. Your use of any content, images or pictures that are made available by Tropical Web Shop as a part of the Web site Builder Tool and Website Design Services, Web Hosting Service, Web site Template Design service, or any other Tropical Web Shop service is governed by the terms of this agreement. You agree that certain content, images or pictures that You use as a part of the Web site Builder Tool, Website Design Services, Web Hosting Service, or Website Template Design services are governed by the iStockphoto LP Content License Agreement () and the Fotolia LLC Standard License Content Download Agreement (). You are obligated to abide by the terms of these agreements in Your use of any content, images or pictures that are provided by Tropical Web Shop to You. You agree that You will not modify, alter, change, reproduce, reengineer, recreate, deface, sell, distribute, lease, license, sublicense or rent any content, image or picture that is made available to You by Tropical Web Shop or that is part of the Web site Builder Tool, Web site Design Services, Web Hosting Service, or Web site Template Design service. You expressly agree that You will not use any content, images or pictures in any way that may infringe the rights of Tropical Web Shop or any third parties. Tropical Web Shop and its partners retain all rights, title and ownership to the intellectual property, software, tools, content, images and pictures that are made available to You. You agree that Your use of the content, images or pictures made available by Tropical Web Shop do not give You any rights in such content, images or pictures.
8.0 Fees and Payment Terms - Fees for the Design Services selected by You will be on a pre-paid basis, due and payable at point of sale (meaning at the beginning of the project), unless another fee or payment structure is mutually agreed to by You and Tropical Web Shop in writing, namely, the Statement of Work. You agree to follow the time line set forth by Tropical Web Shop in the Statement of Work. You agree that in the event You terminate Your subscription to the Design Services prior to the completion of Your Design, You will be subject to a cancellation fee. If Your Design has been completed and been delivered to You, You will not receive a refund of any fees paid and, in the event we have permitted You to pay on a monthly (or other payment-over-time) basis, You will be obligated to pay us for the balance of Your total. The purchase and completion of a Web site design requires receipt of written content and images by You ("Content"). If insufficient Content is received, we will complete Your Design with placeholder content and deliver the design to You within the guidelines of our time line. At this time, You will no longer be eligible for a refund. Content submitted after time line can be added at an hourly rate determined by Tropical Web Shop. If You purchased a Web site Design and Tropical Web Shop has waived Your initial design or set up fee or offered You a discounted set up or design fee, Tropical Web Shop shall have the right to charge You, and You agree to permit Tropical Web Shop to charge Your credit card, up to $200.00, should You choose to cancel the Web site Design within 60 days from the date of purchase and after Web site design work has started. Should You need to pause progress of Your Design with Tropical Web Shop for any reason, You may do so for 90 days, after 90 days You will be charged a restart fee for completing the work on that Design. If within 90 days of purchase You choose to cancel Your Web site Design, You will be subject to a cancellation fee. Responses from You will be necessary for the project to move forward in a timely manner. In these situations, if a response is not received for more than 90 days, the project is considered "abandoned" and payment is surrendered in full. In addition, if You request to remove Your designed Web site Content from our Web site builder platform, You agree to pay $20.00 per page. Finally, Tropical Web Shop reserves the right to charge You a fee for repeated missed consultations related to any Web site design work.
8.1 Post-Publication-Modifications to Web site Design - Payment for the purchase of additional design time after the design has been published ("Modification Time") will be on a pre-paid, hourly basis, due and payable at the beginning of each Modification (and each month thereafter if purchasing additional Modification Time). Any unused Modification Time shall not roll-over and be used in a subsequent month.
9.0 Suspension and/or Termination - If you breach any term of this Service Agreement including, but not limited to, this Web Design Service Agreement or the Acceptable Use Policy, Tropical Web Shop may, in its sole and exclusive discretion, suspend or terminate Your Design Services immediately and without notice to You. In addition to Your obligation to pay any set up and applicable fees for the Design Services, Design Services fees may continue to accrue on suspended accounts and You will continue to remain responsible for the payment of any Services fees that accrue during the period of suspension.
10.0 Refunds - Refunds are not available for Design Services once You have approved Your design composition and/or selected Your design template. After three (3) months from the date of purchase, no refunds will be provided.