July 8, 2015

Terms and Conditions of Use

Terms and Conditions of Use

Updated: July 30, 2015
Date Effective: July 30, 2015

Chapter I. Terms of Use

Chapter II. Acceptable Use Policy

Article I. General Terms
Section 1.01      These Terms of Use are between Kurt Ness Web & Graphic Design, LLC, Host, and the client.
Section 1.02      By paying an invoice you are agreeing to these Terms of Use.
Section 1.03      The contract is for however long until the next invoicing period. Contacts can range from one month all the way up to one year.
Section 1.04      If a client fails to abide by the Terms of Use they will receive a warning and a 5 day notice to cure the violation. If the violation is not cured by the end of the 5th day the website will be shut down and the contract ended without refund.
Article II. Non-Discrimination Notice
Section 2.01      Kurt Ness Web & Graphic Design, LLC will not discriminate based on any federal, state, or local protected classes. They also will not discriminate based off of any identity within the LGBTQIA+ Queer Community, which includes but is not limited to, homosexual, bisexual, lesbian, asexual, transgender, transsexual, trans*, pansexual, gay, queer, agender, and bigender. Kurt Ness Web & Graphic Design, LLC will not discriminate based off of sexual orientation, gender identity, or gender expression, if it falls within the LGBTQIA+ Queer Community.
Article III. Website Development
Section 3.01      The website development is charged for the service for designing the website. If the client does not like the website upon presentation they may say “no” and with comments about what the client wants changed, it will be changed.
Section 3.02      If the whole site is deemed to need to be recreated there may be another fee similar in price to the original website development fee charged.
Section 3.03      If the client approves of the website and once it is live on the web, they have 30 days to request any major changes that need to be done, not including a redesign of a whole website.
Article IV. Website Maintenance
Section 4.01      The client has the ability to request 15 changes done in one month, the equivalent to about a change request every other day, as not to overload the Host.
Section 4.02      If the change requested is deemed to be a major change if requested after the 30 day web design major change period, it will be billed at an appropriate manor for the work that has to be done.
Article V. Refunds
Section 5.01      Within the first 72 hours of the contract being paid, the client has the right to a full refund to the following items:
(a)     Website Development
(b)     Website Maintenance
(c)     Website Setup Fee
(d)     Any graphic design creation
(e)     Website A la Carte options
Section 5.02      After the first 72 hours and within the first 30 days of the invoice being paid the client has a right to the following refunds:
(a)     75% of the website development costs
(b)     100% of the website maintenance costs
(c)     75% of website A la Carte options costs
Section 5.03      The following items are non-refundable
(a)     Website Hosting
(b)     Domain Names
(c)     Web Hosting Addons
(d)     Graphic Design Creation costs after the product has been delivered to the client
Section 5.04      After the first 30 days of the invoice being paid, no refunds are given
Section 5.05      Returning clients are only eligible for a refund within the first 15 days of the contract being paid if the website is not being recreated and is only having minor changes done.
Article VI. Discounts
Section 6.01      There may be times that discounts are available. Not everyone is eligible for all discounts. Discounts as they become available will be posted on the Host’s website of http://kurtnessdesign.com.
Section 6.02      Unless stated otherwise on the discount page, all discounts cannot be combined with any other offers or discounts.
Section 6.03      Some discounts may require verification or proof in order to receive discount.
Section 6.04      Discounts are at the sole discretion of the Host and may begin and end at any time and before or after the dates for the discounts that are listed.
Section 6.05      A client may only use a maximum of two discounts at the time of checkout or on the invoice.
Section 6.06      All discounts unless otherwise stated, are only for new clients.
(a)     A new client is defined as someone who has not had an invoice with the Host at any point within the past 3 years.
Section 6.07      Unless stated otherwise, all discounts only apply to the first invoice. After the first invoice, the client may not use any discounts unless the discount specify states that is open to returning clients.
Section 6.08      Discounts are not retroactive in the sense that if a new discount is released that a current client is eligible for, the current client is not subject to the new discount.
Section 6.09      All reasonable attempts will be made by the Host to provide all discounts that the client is currently eligible for. However if a Client feels they are eligible for a particular discount, they must bring it to the attention of the Host.
Article VII. Domain Name Leasing and Registration
Section 7.01      Domain names are never purchased for a life time; however they are leased for a period of time. The rental time can be anywhere from one year all the way up to 5 years or more. At the end of that time you must purchase/rent it again.
Section 7.02      Regular Domain Names are typical top level domains, which include the following:
(a)     .com
(b)     .org
(c)     .net
(d)     .info
(e)     .biz
(f)      .us
(g)     .in
Section 7.03      Special Domain Names are any other TLD than listed above and typically will have a higher cost than Regular Domain Names
Section 7.04      Some domains whether it is a Regular or Special domain Premium domains, and they will have an extra fee along with the yearly fee for the domain. The typical extra fee is about $1500, however it will vary.
Article VIII.  Hosting
Section 8.01      There are four (4) hosting options available
(a)     10 Hosting Plan
(i)   1GB of Disk space
(ii)   10GB of Bandwidth
(iii)   1 Professional Email
(iv)   No MySQL Database
(b)     50 Hosting Plan
(i)     5GB of Disk space
(ii)    50GB of Bandwidth
(iii)   2 Professional Email Account
(iv)    1 MySQL Database
(c)     100 Hosting Plan
(i)     10GB of Disk space
(ii)     100GB of Bandwidth
(iii)     5 Professional Email Accounts
(iv)     5 MySQL Databases
(d)     200 Hosting Plan
(i)     20GB of Disk space
(ii)     200GB of Bandwidth
(iii)     50 Professional Email Accounts
(iv)     15 MySQL Databases
Article IX. Contracts with 3rd parties
Section 9.01      The Host has a contract with HostGator to provide website and email hosting services. As a result, the client must agree to HostGator’s Term of Service, Privacy Policy, Acceptable Use Policy,  Email Policy, DCMA, Copyright Policy, and Subpoenas.
(a)     Terms of Service: http://www.hostgator.com/tos
(b)     Acceptable Use Policy: http://www.hostgator.com/tos/acceptable-use-policy
(c)     Privacy Policy: http://www.hostgator.com/privacy
(d)     Email Policy: http://www.hostgator.com/mailpolicy
(e)     DCMA: http://www.hostgator.com/dmca
(f)      Copyright Policy: http://www.hostgator.com/copyright
(g)     Subpoenas: http://www.hostgator.com/subpoenas
Section 9.02      The Host will outsource domain registration to either Google Inc. or Name Silo.  As a result, the client must agree to both Google Inc.’s and Name Silo’s policies. Google Inc.’s policies can be found at https://www.google.com/intl/en/policies/. Name Silo’s policies can found at https://www.namesilo.com/Support/Policies.
Section 9.03      The user must agree to terms and condition, privacy policies and/or similar documents for each plugin, theme, or other system that is incorporated into their website or related services. The Host can find these documents for the client if the client wishes to view them
Section 9.04      Client must agree to the privacy policy of WordPress.org and the licenses for the WordPress software as well.
(a)     Privacy Policy: https://wordpress.org/hosting/
(b)     License: https://wordpress.org/about/license/
Article X. Taxes
Section 10.01  Host shall not be liable for any taxes and other governmental fees related to purchases made by Client or from Host’ server. Client agrees that s/he will be fully responsible for all taxes and fees of any nature associated with products or services sold through the use of or with the aid of services provided to Client by Host.
Article XI. Materials and Products
Section 11.01  Any material and data Client provides to Host in connection with Services shall be in a form requiring no additional manipulation on the part of Host. Host shall make no effort to validate this material or data for content, correctness, or usability. Material or data that is not in this condition shall be a breach of this Agreement. Host, in its sole discretion, may reject material or data that Client has placed on Host’s servers or that Client has requested that Host put on Host’ servers. Host agrees to notify Client immediately of its refusal of any material or data and provide Client with an opportunity to amend or modify the material or data to meet the Host’s requirements. Client’s failure to amend or modify the data or material as directed by Host within a reasonable time shall be a breach of this Agreement
Article XII. Electronic Mail Abuse
Section 12.01  Harassment by e-mail, whether through language, frequency, or size of messages, is prohibited. Client may not send e-mail to any person who does not wish to receive it. If a recipient asks to stop receiving e-mail, Client must not send that person any further e-mail. Clients are explicitly prohibited from sending unsolicited bulk e-mail messages (“junk mail” or “spam”). This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, and political tracts. Such material may only be sent to those who have explicitly requested it. Clients may not forward or otherwise propagate chain letters, whether or not the recipient wishes to receive such mailings. Malicious e-mail, including but not limited to “mail bombing” (flooding a user or site with very large or numerous pieces of e-mail) and “trolling” (posting outrageous messages to generate numerous responses) is prohibited. Forging of header or any other information is not permitted. Subscribing someone else to an e-mail list or removing someone else from a mail list without that person’s permission is prohibited. Host’s accounts or services may not be used to collect replies to messages sent from another Internet Service Provider if those messages violate this Agreement or any usage policy of that other provider. Violations of this Agreement will result in immediate account termination and provider reserves the right to charge an administrative clean-up fee of up to $25 each time and a deactivation fee of $0.
Article XIII. Violations of Network Security
Section 13.01  Client is prohibited from violating or attempting to violate the security of the network. Violations of system or network security may result in civil or criminal liability in addition to immediate termination of Client’s agreement. Host will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Clients who are involved in such violations. These violations include, without limitation:
(a)     Accessing data not intended for the Client or logging into a server or account that the Client is not authorized to access.
(b)     Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization.
(c)     Attempting to interfere with service to any Client, host or network, including, without limitation, via means of overloading, “flooding,” “mail bombing,” or “crashing”.
(d)     Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
(e)     Taking any action in order to obtain services to which the Client is not entitled.
Article XIV. Warranty Against Unlawful Use
Section 14.01  Clients warrants and represents that Client shall use Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of Client’s account for cause.
Article XV. Liability; No Warranty; Limitations of Damages
Section 15.01  Client expressly agrees that use of Services provided by Host is at Client’s sole risk.
Section 15.02  Host guarantees 99.5 percent uptime for its Web servers. If uptime for Client’s Web server falls below 99.5 percent during any given month (or specify other payment period), Host will credit Client as follows: If hosting uptime below 99.5% we will credit the client based off of their paid amount for their plan for every minute the website is down after it falls below 99.5%. Any such credit shall be applied to future invoices. This credit shall be Client’s sole and exclusive compensation for any downtime or other unavailability of Host’s services under this Agreement. Host shall have no liability of any kind for any damages or loss arising as a consequence of such downtime or unavailability. Client must contact Host if their website is down in order to be eligible for compensation. Indicators of downtime must come from the server or the Host. If downtime is caused by factors outside of the Host’s control such as but not limited to war, bombs, terrorist attack, natural disaster, any acts of God, or any other reason, that downtime is not subject to compensation. If the downtime is caused by the client, The Host is not responsible for it. If the website or other related services are not reachable by the client due to something out of the control of the Host, the Host is not responsible and will not issue downtime credit.
Section 15.03  Host, its agents, affiliates, licensors or the like, do not represent or warrant, expressly or impliedly, that their services will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of their services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through their services, unless otherwise expressly stated in this Agreement.
Section 15.04  Host, its officers, agents, or anyone else involved in providing services shall not be liable for any direct, indirect, incidental, special, or consequential damages that result from the use or inability to use services; or for any damages that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of god, communication failure, theft, destruction, or unauthorized access to Host’s records, programs, or services.
Section 15.05  Host will exercise no control over the content of the information passing through Host’s network except those controls expressly provided herein.
Section 15.06  Host makes no warranties or representations of any kind, express or implied, for the services it is providing. Host also disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays or non-deliveries.
Section 15.07  Host is not responsible if the website or any other aspects relating to the website gets hacked.  Host will make passwords as secure as possible using at least one upper case letter, one lower case letter, one number and one symbol or to be deemed quality of 90 or high according to CPanel or WordPress. Client takes full responsibility if the website or any other aspects relating to the website gets hacked.
 Article XVI. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights
Section 16.01  Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to Client. Client agrees that all right, title, and interest in any product or service provided to Client belongs to Host. These products and services are only for Client’s use in connection with Services provided to Client as outlined in this Agreement.
Section 16.02  Client expressly warrants to the Host that Client has the right to use any patented, copyrighted, or trademarked material which Client uses, posts, or otherwise transfers to Host servers.
Section 16.03  Host reserves the right to place a small graphic or small text which will link back to the Host’s website. The text or graphic cannot take away from the website quality as deemed so by the Host or a United State court system. The text or graphic will typically be places in the same location as the website copyright information.
Section 16.04  Certain themes, plugins or the WordPress CMS platform may put at the bottom of the page or in other areas branding of the creator, system, and or copyright information for that particular product. Host is not responsible for any branding or copyright information shown for products.
Article XVII. Hardware, Equipment, and Software
Section 17.01  Client is responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access Host servers. Host makes no representations, warranties, or assurances that Client’s equipment will be compatible with Host Services.
Article XVIII. Age
Section 18.01  Client expressly represents and warrants that Client and any person to whom Client grants access to Client’s Host account are at least 18 years of age.
Article XIX. Indemnification
Section 19.01  Client agrees to defend, indemnify, and hold Host harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against Host, its agents, servants, officers, and employees, that may arise or result from any Service provided or performed or agreed to be performed or any product sold by Client, Client’s agents, employees, or assigns. Client further agrees to defend, indemnify, and hold harmless Host against liabilities arising out of:
(a)     Any liability to Host arising by virtue of any use of Host’s services by Client for any unlawful purpose, or in violation of any valid federal, state, or local law or regulation governing use of e-mail or the Internet;
(b)     Any injury to person or property caused by any products sold or otherwise distributed in connection with Services provided to Client;
(c)     Any material supplied by Client infringing or allegedly infringing on the property or proprietary rights of a third party;
(d)     Copyright or trademark infringement by Client, or violation by Client of intellectual property rights of any other party; and
(e)     Any defective product which Client sold or distributed by means of Services.
(f)      Client agrees that the liability limit of Host shall in no event be greater than the aggregate dollar amount which Client paid during the terms of this Agreement, including any reasonable attorneys’ fees and court costs.
Article XX. Attorneys’ Fees
Section 20.01  If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire Agreement.
Article XXI. Notice
Section 21.01  Client agrees to keep Host informed of all current contact information for Client’s account. Changes in Client’s account information may be reported to Host by e-mail at kurt@kurtnessdesign.com or on Host’s website located at http://kurtnessdesign.com. Failure to maintain or keep current all contact information shall be a ground for Host to terminate Client’s account for cause.
Article XXII. Governing Law
Section 22.01  This Agreement has been entered into in the State of Wisconsin, and its validity, construction, interpretation and legal effect shall be governed by the laws of that state applicable to contracts entered into and performed entirely within that state.
Article XXIII. Severability
Section 23.01  In case any one or more of the provisions of this Agreement be held for any reason to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid provision(s) had never been contained in this Agreement, provided that those provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
Article XXIV. Waiver
Section 24.01  No waiver by Host of any breach by Client of any provision of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No waiver shall be effective unless it is in writing, and then only to the extent expressly set forth in such writing.
Article XXV. Entire Agreement
Section 25.01  This Agreement shall constitute the entire agreement between Client and Host, and no other agreement, statement, or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding.
Article XXVI. Signing of Documents
Section 26.01  The Host at certain times may request documents to be signed by the client.
(a)     Physical signatures
(i)     Physical signatures are preferred if at all possible.
(b)     Digital Signatures
(i)     There are certain times when a physical signature is not possible due to geographic or other constraints, so in times like these the Host will use digital signature as a way for the client to sign the document.
1)        Digital Signatures are just as binding as physical ones and hold up the same in the court of law.
Article XXVII. Payments
Section 27.01  Before work can be started, payment or a payment agreement, arrangement, or plan must be in place signed by all parties involved.
Section 27.02  Forms of Payments
(a)     The form of payment accepted is at the sole discretion of the Host and may change depending on the job and the amount. Some common payment forms are listed below:
(i)     Personal Check (address listed on check must be within Wisconsin)
(ii)    Cashiers Check
(iii)   Money Order
(iv)    Electronic Check
(v)     Debit Card/Credit Card
(vi)    PayPal
(vii)   Cash (ONLY if the amount owed is under $10.00)
Section 27.03  The client always has the right to mail in a payment to the Host. The receiving of payment is at the sole responsibility of the Client and the Host takes no responsibility into making sure payment is received. Upon request the Host will provide mailing information and Payee information for checks and money orders that are mailed out. Payment mailed into the Host must be in the form of a Cashiers Check
(a)     The client will always be provided with the accepted payment methods.
Section 27.04  If a client elects to mail in a check and the check is not made out to the correct person it will be returned to the client, for a new check to be mailed out. If the payment is late due to an incorrect payee listed on the check, the customer is solely responsible for that late payment.
Section 27.04 If the Host has never met with the client in person, the Host has the right to require payment to be in the form of Money Order or Cashiers Check.
Article XXVIII. Refunds
Section 28.01  If a refund to the Client is due, the Host will make all reasonable attempts to refund the amount due, and to do it in a timely manner.
Section 28.02  Refunds may be made in any of the following formats and is at the sole discretion of the Host.
(a)     Electronic Refund to Bank Account
(b)     Electronic Refund to Debit Card/Credit Card
(c)     Check refund
(d)     Cash Refund
Section 28.03  Cash refunds must always be picked up in person.
Section 28.04   If a Client picks up the refund they must bring a state photo issued ID, or a photo ID issued by a University of Wisconsin System school or a Wisconsin Technical College photo ID so that the Host may verify that the client is them self. Unless:
(a)     The Host knows the client well enough as they may be able to state for a fact that the person is who they claim to be.
Section 28.05  Before a refund is released to the client, the client must sign a document stating that they received their refund if it is picked up.­
Section 28.06  Reissuing of Refunds
(a)     Only in extreme circumstances will a refund be reissued to the client.