Terms of Service
Terms of Service
These Terms of Service are effective as of November 1st, 2022.
You, or your company, hereafter client, is engaging Engines of Creation Web Design & Development, Inc., hereafter EOC, as an independent contractor for the specific project of developing and/or improving a web site, code, programming application, and/or assisting with digital marketing or any other service either noted in your project proposal or outlined in the description of your service. The client hereby authorizes EOC to access any account necessary and authorizes EOC with “write permission” for the client’s web pages, social media accounts, advertising accounts, and any other files, accounts or programs, etc. which need to be accessed and changed for this project.
Standard Maintenance and Hourly Rates
Rates will be based on the nature of the changes necessary to complete the request. The amount charged will be based on current hourly rates for the service requested, unless service is a flat rate fee or unless negotiated between the client and EOC in a written agreement as an addendum to this document.
– The minimum charge is 1/2hr; Consecutive time billed in 1/2hr. increments,
– Retainers for services, i.e) maintenance plans, projects, etc. are billed in 15 min increments.
– The minimum hourly rate is $125/hr. Unless otherwise noted.
– The client is responsible for all external and third-party fees or charges. i.e.) Software for social media posting, advertising spend, software licenses etc.
Payments of fees
Fees to EOC are due and payable on the following schedule:
Third-Party Costs & Pass-through Billing: Any third-party costs paid on behalf of the client by EOC, and not paid directly by the client to that vendor/party will be marked up a minimum of 15% to cover the cost of credit card processing & billing administration, this includes one-time, monthly or other recurring fees or licenses.
SEO, Marketing, Digital Advertising, SAAS, and Subscription-Based Products including Plans and Packages: All payments and services are due in advance for the coming 30 day period.
Payments: All payments will be made in U.S. funds. All payments are due upon receipt. Clients will be given (3) three business days upon completion for final review and approval for any specific project. Payments must be received no later than (7) seven days from the sent invoice. Any monies past due will result in an additional $35.00 charge.
Subscription-based product billing must be auto-billed to a credit card or paid annually by check.
Subscription-based Website Plans and Addons: Billing begins 7 days after signing, regardless if your website is live/active. This schedule is worked into our pricing model and is a continuation of your onboarding until launch, in addition, this encourages you to provide us with your content quickly. You will receive access to and use of software and add-ons before launch.
In All and Any Case
You agree that in any case that you refuse payment or your payment fails billing, Engines of Creation Web Design & Development will retain all rights to material until full payment is received, including late penalties, charges, legal fees, and/or collection fees, and retains the option to remove or “turn off” the client’s website, services or advertising/marketing campaigns from view. This agreement becomes effective only when the client signs and remits an initial down payment, onboarding, or payment. Regardless of the place of signing of this agreement, the client agrees that for purposes of venue, this contract was entered into in Montgomery County, New York, and any dispute will be litigated or arbitrated in Montgomery County, New York.
a.) Non-payment due to chargebacks or canceled checks for services knowingly purchased from EOC, EOC shall immediately shut off services for that client and will pursue full legal recourse against the client to recoup all losses and fees.
Legal Information
EOC warrants the functions of any website or programming specifically done by EOC for a period of 3 months. If any defects arise, EOC will make any necessary changes to these Web Pages to restore functionality; except in cases involving hacking or malicious acts, changing technology, including but not limited to: Internet Browsers, updates & changes to third party plugins or software, changes to the Internet, changing local state and governmental regulations, guidelines etc. and/or if the bug/error or defect is the result of third party application, and/or modification of the website or code by any other party other than EOC, then the entire risk as to the quality and the performance of the Website, program or application, etc. lies solely with the client.
Indemnification
In no event will EOC be liable to the client or any third party for any damages, including any lost profits, lost savings, or other incidental, consequential, or special damages arising out of the operation of or inability to operate these Web pages or Web site, in all cases, including cases of non-payment, even if EOC has been advised of the possibility of such damages. The client agrees to protect and legally defend EOC and its subcontractors from any claim, suit, penalty, tax, etc., from any third-party claim or suit that might arise for any reason. If any provision of this agreement shall be unlawful, void, or for any reason, is unenforceable, that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
The client must make claims for defects, damages, and/or shortages in writing within fifteen (15) days after delivery of all or any part of the order. Failure to make such a claim within the stated period shall constitute irrevocable acceptance and an admission that they fully comply with terms, conditions, and specifications.
Opportunity to Cure
Before any claim for damages is made, you must provide EOC with reasonable notice of any alleged deficiencies in performance. EOC shall have a reasonable opportunity to cure any alleged defect in performance.
a.) SEO/Marketing & Digital Advertising & Services: We work closely with our clients to identify realistic goals and timelines and employ the appropriate mix of tactics to achieve them. EOC shall be given the opportunity to cure as stated above. If we cannot cure any alleged defect in performance, we offer to terminate our agreement, and if pre-paid, we will refund any unused portion of the contract. Setup/Onboarding charges are non-refundable.
b.) EOC reserves the right to review each account claim for refunds. If EOC suspects that anyone or any agent other than EOC has performed work or is engaging in unspecified search engine optimization or marketing activities related to your website without consultation with our SEO team prior. In that case, the client will forfeit all rights to claims.
c.) Late payments will be considered a breach of this agreement and will forfeit all rights to claims by the client since no work shall be performed without payment; non-payment or late payment is deemed an obstruction of the SEO or Marketing process.
d.) SEO & Digital Marketing/Advertising Terms: EOC MAKES NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF RELIABILITY, USEFULNESS, MERCHANTABILITY, and FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM THE COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. By signing this agreement, you acknowledge that EOC neither owns nor governs the actions of any search engine or advertising network, or social media platform, etc. You also acknowledge that due to fluctuations in the relative competitiveness of some search terms, recurring changes in the search engine algorithms, and other competitive factors, it is impossible to guarantee number one rankings or consistent top ten rankings, or any other specific rankings or performance for any particular search term or marketing campaign.
Limitation of Liability
Notwithstanding any provision to the contrary, the total liability of “EOC” and its employees and consultants for all losses, damages, costs, and expenses, including attorneys fees, shall not exceed the aggregate amount paid to “EOC” under this Agreement, regardless of the legal theory under which such liability is imposed. Some jurisdictions do not allow excluding or limiting implied warranties or limiting liability for incidental or consequential damages. Some jurisdictions have special statutory consumer protection provisions that may supersede the preceding disclaimers and limitations. As a result, these disclaimers and/or limitations may not apply to you if prohibited by law.
Claims
Proofing of Final Product: EOC shall make every effort to ensure the final product is free of any grammatical and spelling errors before giving the final product to the client; however it is agreed that it is the client’s responsibility to ensure that there are no errors contained in the final product and it is agreed that EOC will not responsible or held liable. The client will INDEMNIFY EOC.
Confidentiality
All correspondence and documents provided will be treated as confidential between the client and EOC unless consent has been granted by both parties involved unless cooperating with law enforcement or other government agency.
Laws Affecting Websites & Electronic Commerce
From time to time, governments enact laws, levy taxes and tariffs, and change or add local state and governmental regulations, guidelines, etc., that may affect the internet, your website, or electronic commerce. The client agrees that the client is solely responsible for complying with such laws, taxes, regulations, guidelines, tariffs, etc. (including website accessibility), that the client will hold harmless and INDEMNIFY EOC, and that the client shall protect and legally defend EOC and its subcontractors from any claim, suit, penalty, tax, or tariff, etc. arising from the client’s exercise of Internet electronic commerce and/or operation of a website.
In addition, you agree to abide by the terms of service of any third-party software/service provider used or offered with your plan, website, website marketing, etc. This may include email marketing providers, ecommerce platforms, plug-ins, reputation software, etc.
Copyright to Web Pages
*Subscription-based websites: a.k.a. website packages/Plans or other marketing solutions which are paid monthly are considered a subscription-based product; usage ends upon cancellation of said service; the design or content may not be transferred, copied, or ported to another platform, and ownership and the copyright is solely the property of EOC at all times.
“Build and Buy” Websites: Web page designs paid for in full or purchased outright from EOC are commissioned work by the client and, as such, are owned by the client upon full payment.
In any case, all programming and website code is considered the intellectual property of EOC, and its ownership is not transferred to the client; in addition, it shall not be re-distributed or re-sold for any reason without the expressed written permission of EOC.
Engines of Creation web design & development retains personal rights to use the completed project for the marketing and advertising our services.
Sole Agreements
This “Terms of Service Agreement” agreement constitutes the sole agreement between EOC and the client regarding your service, website, or plan. Any additional work not specified in this contract, scope of work, or in your service must be authorized by written change order and potentially subject to additional fees and/or charges.
Initial Payments and Refund Policy
This agreement begins with an initial payment for your service, set up, or onboarding fee. If the client halts work and apply for a written refund within 3 days, any work completed shall be billed at current hourly rates or 20% of the project cost, whichever is greater. The refund amount will be deducted from the initial payment, the balance of which shall be returned to the client. If, at the time of the request for a refund, work has been completed beyond the amount covered by the initial payment, the client shall be liable to pay for all work completed at a current hourly rate(s) as per our “Payment of Fees” section of this agreement.
*Annual Commitments must be paid in full, regardless of cancellation requests.
*No partial or full payment will be refunded unless a written application is made to EOC.
Cancellation of Service
Cancellations of Service must be made by email to support@enginesofcreation.com, according to the guidelines for your specific service. The client will be responsible for the full contract term length, this includes unused portions of services. Upon cancellation, the client may pay the complete, unused contract length to EOC or continue monthly billing until the contract is paid in full.
Subscription-based Website Plans: You may cancel anytime after 12 billing cycles and at least 30 days before your renewal.
Upgrades and downgrades to subscription-based website plans: Answer: You can downgrade after 180 days on any package, and features may be lost.
You can upgrade to the next plan by paying the setup charge of the next level chosen package.
Domain Name Serice
EOC can assist the client in obtaining a Domain Name (i.e., www.yourcompany.com). The domain name will be the client’s property, and the client will be solely responsible for maintaining said service and any resulting fees. EOC does not warrant that the Domain Services will meet the client’s requirements or that these services will be uninterrupted or error-free. The entire risk in obtaining and maintaining the client’s domain name lies with the client.
Advertising & Web Signature
The bottom of the client’s website will contain a link to enginesofcreation.com. This link will be made unobtrusive and is generally found at the bottom of the home page so it does not interfere with the client’s content. Engines of Creation also reserves the right to publish and advertise the completed work online for promotion purposes.
Consulting for the Web Page
Your project retainer covers consultation time, meetings, phone calls, and emails related to your project scope. During the project, you are billed for this time at the appropriate rate of service.
Right to Refuse
EOC reserves the right to refuse service for any reason. (Subject to a full refund of all monies received minus work performed or service delivered) In no event will EOC be liable to the client or any third party for any damages, including any lost profits, lost savings, or other incidental, consequential, or special damages arising out of the refusal of services, even if EOC has been advised of the possibility of such damages.
Production Schedule/Delivery of Project
The client will assume any costs related to the project. Any alteration or deviation from the scope of work/specifications by either party will be accepted only upon prior written approval. EOC shall not incur any liability or penalty for delays in the project completion due to actions or negligence of the client, unusual delays, unforeseen illness, or external forces beyond the control of EOC. If such event(s) occur, it shall entitle EOC to extend the completion/delivery date by the time equivalent to the period of such documented delay.
Scope of Work
See the proposal document or service description.
Partner Agreements & Licenses
Engines of Creation works with numerous software and service companies to offer our services to you. By using our services, you agree to abide by the terms of service of the companies that offer those services, software, and license agreements. You agree that your service may be canceled due to not complying with our partners’ terms of service and that it is your responsibility to keep up to date with any changes, rules, regulations, etc.
Below is a list of some of our partners. However, your agreement is not limited to this list.
Hosting: https://kinsta.com/legal/
Social Media Software: https://eclincher.com/terms-of-services/
Reputation Manager: https://gatherup.com/terms-of-use/
Email Marketing: https://www.activecampaign.com/legal
Email Marketing: https://www.klaviyo.com/legal
Amendments and Addendums
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Please Read
BY SIGNING THIS AGREEMENT ABOVE AND/OR USING THE SERVICES OFFERED BY EOC, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.
EOC reserves the right to change or modify any of the terms and conditions contained in this Agreement and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion and to determine whether and when any such changes apply to both existing and future customers.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT SIGN OR SIGN UP FOR SERVICE. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY EOC OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTIONS TITLED “Initial Payments and Refund Policy” and “Cancellation of Service” ABOVE. The signer agrees to the terms of this agreement on behalf of his organization or business and is authorized by the said entity to sign legal agreements.
