This agreement covers the provision of any website design, development and digital marketing services ordered by the Client from eBiz NYC and lists the contractual obligations of both parties, even in the absence of a specific written contract.
1. Commencement of Services
eBiz NYC may, at its sole discretion, commence services only after receiving the following from the Client:
- Written or email confirmation of the order by the Client; and
- Final contents for the website, including text, logo, graphics, video and audio (unless Client purchases said content from eBiz NYC); and
- If requested by eBiz NYC, any deposits or advance payments.
2. Obligations and Responsibilities
The Client and eBiz NYC agree to the following:
(A) eBiz NYC Obligations
eBiz NYC will provide services in a fair and reasonable manner and will endeavor to develop an excellent working relationship with the Client. eBiz NYC will:
- Consult with the client by phone and/or email as to their specific requirements.
- Prepare and supply to the client, website design concept proofs for the client to review and sign-off.
- Supply the client with a website and website pages that match the website design visual signed off by the client.
- Set up website hosting if hosting has been ordered by the Client.
- Provide any other services purchased by the Client from eBiz NYC in a timely manner.
- Keep the Client informed throughout the design process.
(B) Client Obligations
The client will:
- Provide clear and unambiguous instructions to eBiz NYC as to their requirements
- Provide any content, information, feedback or signoffs required from eBiz NYC in order to render agreed upon services in a timely manner
- Inform eBiz NYC of any issues that may impact on the delivery of the website
- Make all required payments in a timely manner
3. Testing, sign off and additional requirements for website design packages
eBiz NYC will request that the Client signs off the website design concept and the final website. If the Client is not satisfied with the design concept or the final website, eBiz NYC will make the necessary changes so long as the changes are within the scope of the chosen website design package. This process will continue until the design concept or final website is accepted and signed off in writing (or via email) by the Client. If the Client requests additional or changed functionality or content that falls outside of the website package ordered by the Client eBiz NYC will charge for these additional requirements on an hourly basis.
4. Payment Terms
- A non-refundable, 50% deposit is due on ordering of the website. All other services must be paid in full in advance.
- If the website development extends beyond 30 days due to delays caused by the client, eBiz NYC may invoice the Client for progress payments.
- All invoices are due within 7 days from the date of invoicing.
- eBiz NYC will only provide final deliverables once all invoices have been paid for in full.
5. Overdue accounts
- Any debt collection costs incurred by eBiz NYC for recovery of any monies owed to eBiz NYC by the Client will be paid for by the Client.
- eBiz NYC will assess a late fee of $50 per month on any past due invoices beginning with the first day the payment is late.
- eBiz NYC may, at its sole discretion, refuse to provide further services to the Client due to overdue accounts or poor payment history.
- eBiz NYC may suspend any website it hosts without notice due to unpaid accounts, website hacks or website instability.
- eBiz NYC may suspend any developer licensing it has provided to the client for commercial plugins used on the client’s website due to unpaid accounts
The price for the website will be the price advertised at the time of the order for the chosen website package or service, plus any additional charges incurred for requests over and above the scope of the chosen website package or service. Additional work will be charged out at eBiz NYC’s normal hourly rate. eBiz NYC may change its hourly rate at any time and without notice to the Client.
The Client must have permission to use any artwork, imagery or content they supply to eBiz NYC. The Client will indemnify eBiz NYC against any legal proceedings that may arise due to any breach of Copyright caused by material provided by the Client to eBiz NYC for use in the website design.
8. Ownership of Website
eBiz NYC will provide a finished website to the Client in the form of source code and asset files. These files become the exclusive property of the Client upon acceptance of delivery, however these files are partially based on a non-exclusive code base created and maintained by eBiz NYC and in some cases existing code was used to help create the deliverables. Such code and other underlying technologies do NOT become the property of the Client, only the finished website. In addition, the website may depend on code, objects and other third party utilities that are the property of their respective owners. No rights to these dependencies is expressed or implied. Additional licensing may be required with third party assets. In the case where Open Source software or premium WordPress software has been used in the development of the website, the licensing and intellectual property rights will be those that are attached to the software and copyright of that software and will be retained by the original software developer(s).
9. Client agrees to receive electronic messages from eBiz NYC
The client agrees to receive electronic commercial messages from eBiz NYC. eBiz NYC will not send messages to the Client should the Client opt out of receiving electronic messages from eBiz NYC.
10. Maintenance after the Website is Live
Any website changes or updates requested by the Client after the website has gone live, will incur additional fees and will be billed to Client at eBiz NYC’s normal hourly rate as published on their website, unless such services are purchased as part of a monthly maintenance package.
11. Search Engine Optimization (SEO)
The website pages will be accessible to the search engines; however, eBiz NYC does not provide any guarantee of any improvement in your search engine rankings or that your website will rank for any specific keyword or keyword phrase.
12. Browser Testing
eBiz NYC will test the final website in the most commonly used modern web browsers. eBiz NYC cannot guarantee that the website will look identical on all web browsers, but it will look to be an approximation of the design concept signed off by the client.
13. Mobile Testing
The website will be mobile phone ‘friendly’ and responsive in design so that it ‘adapts’ to the size of the device accessing the website. The mobile website will not look identical to the desktop website but will be in keeping with branding and logo identity. eBiz NYC will test the website in multiple devices, but due to the large number of mobile devices and display resolutions, we cannot guarantee that the website will look the same across all devices. The mobile adaptations made by eBiz NYC will be at their sole discretion and in line with industry standards and will be for two mobile device break points (small and medium devices). Any requirements for coding for a specific device or break point will be an additional charge and fall outside of the website package.
14. Website Hosting
While the website delivered by eBiz NYC will be complete in every way, access to the website via the internet requires a separate paid subscription to a website hosting service. Client agrees that the website will be hosted by eBiz NYC for a period of one year following the date website goes live. This will allow eBiz NYC full access to all code, performance logs and files for the purpose of fulfilling its obligations during the warranty period.
Beginning with the one year anniversary of the date the website goes live, Client may opt to have the website hosted by a third party. Client will be responsible for choosing, paying for, and maintaining their Hosting solutions and associated services, as well as having the website transferred to the new host. As a courtesy, eBiz NYC may offer suggestions, however, eBiz NYC is NOT responsible for down time, poor performance, loss of data or changes in the website’s appearance. Additionally, eBiz NYC is not responsible for any bug caused by changes on the Host after the website has gone live or during development of the website, including but not limited to updates to operating system, compile systems, code libraries and languages, or any changes resulting from security violations or settings.
15. Security & Updates to Code
Due to the nature of rapidly advancing technology and the open source nature of the code used to develop the website, eBiz NYC cannot guarantee that the website will be safe from security breaches, unauthorized access, or hacking. eBiz NYC recommends the use of strong passwords and the observance of standard security practices. In order to minimize the chances of security violations, all code must be kept up to date. The Client is solely responsible for tracking software updates unless there is a separate agreement with eBiz NYC for providing these maintenance updates. Any updates during the life of or after the expiration of the Contract can be negotiated as an addendum to this Contract or as an additional support Contract.
16. Hacked websites
Client agrees that eBiz NYC will not be held responsible for any security breach or hacking of the website. However, should the breach/hack occur while eBiz NYC is hosting the website, eBiz NYC will make every reasonable effort to restore the website using a backup of the website created within 30 days of the date the breach/hack is discovered.
Either party may terminate the agreement on 7 working days’ written notice to the other party. If eBiz NYC has commenced work for the client prior to the cancellation the Client will be liable for any hours worked at eBiz NYC’ normal hourly rates. eBiz NYC may terminate this contract should the Client go into liquidation or bankruptcy.
18. Right to Sub-Contract
eBiz NYC may subcontract the performance of any of their responsibilities under this contract to another party.
The website comes with a 30-day warranty against any website bugs or errors included in delivered website, and eBiz NYC will correct any such errors at it’s own expense. eBiz NYC does not provide any guarantee or warranty whatsoever on any third party software that is used in the construction of the website including the code used in open source content management systems or plugins or commercial premium plugins or themes. If the client is not satisfied with the website design service provided, they must inform eBiz NYC in writing of the specific issues they have within 30 days of the website going live. eBiz NYC may at its discretion supply additional services as a remedy.
After the warranty period, the resolution of any bugs or errors found will be billed to Client at eBiz NYC’s normal hourly rate as published on their website, unless such services are purchased as part of a monthly maintenance package.
The Client agrees that eBiz NYC will not be liable for any indirect or consequential damages, loss of profits or for any claim made on the client by any other party, even though eBiz NYC may have been notified of such damage or claims. eBiz NYC will not be liable for any loss or damage arising directly or indirectly out of delay in the supply of the deliverables or failure to perform its obligations under this agreement where the delay is caused directly or indirectly by an act of God, armed conflict, labor dispute, civil commotion, intervention of a government, inability to obtain labor, materials or manufacturing facilities, accidents, interruptions of, or delay in, transportation or any other cause beyond their control. The Client agrees to indemnify eBiz NYC against any false advertising claims, liability claims for products or services sold by the Client, claims for patent, copyright or trademark infringement, claims due to disruption or malfunction of services provided by eBiz NYC to the Client under this agreement, claims related to any malfunction of the website, or for any content submitted by the Client for publication by eBiz NYC. eBiz NYC publication of material submitted by the Client does not create any express or implied approval by eBiz NYC of such material, nor does it indicate that such material complies with the terms of this agreement.
21. Applicable law
This agreement shall be interpreted in accordance with the laws of New York State.
In the event that any one or more of the provisions of this agreement shall be held to be invalid, illegal or unenforceable; the remaining provisions of this agreement shall not be void for this reason alone. The invalid, illegal, or unenforceable provision shall be replaced by a mutually acceptable provision, which reflects the original intention of the parties.
23. Force Majeure
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.