Website Usage Terms and Conditions,

Project and Service Terms
and Conditions,

Website Design and Maintenance Terms and Conditions

 

Website Usage Terms and Conditions

1. Introduction

These Website Usage Terms And Conditions (these “Terms” or these “Website Usage Terms And Conditions”) contained herein on this webpage, shall govern your use of this website, including all pages within this website (collectively referred to herein below as this “Website”). These Terms apply in full force and effect to your use of this Website and by using this Website, you expressly accept all terms and conditions contained herein in full. You must not use this Website, if you have any objection to any of these Website Usage Terms And Conditions.

​This Website is not for use by any minors (defined as those who are not at least 18 years of age), and you must not use this Website if you a minor.

2. Intellectual Property Rights

Other than content you own, which you may have opted to include on this Website, under these Terms, That’s So Creative, LLC and/or its licensors own all rights to the intellectual property and material contained in this Website, and all such rights are reserved. You are granted a limited license only, subject to the restrictions provided in these Terms, for purposes of viewing the material contained on this Website,

3. Restrictions

You are expressly and emphatically restricted from all of the following:

  1. publishing any Website material in any media;
  2. selling, sublicensing and/or otherwise commercializing any Website material;
  3. publicly performing and/or showing any Website material;
  4. using this Website in any way that is, or may be, damaging to this Website;
  5. using this Website in any way that impacts user access to this Website;
  1. using this Website contrary to applicable laws and regulations, or in a way that causes, or may cause, harm to the Website, or to any person or business entity;
  2. engaging in any data mining, data harvesting, data extracting or any other similar activity in relation to this Website, or while using this Website;
  3. using this Website to engage in any advertising or marketing;

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Certain areas of this Website are restricted from access by you and That’s So Creative, LLC may further restrict access by you to any areas of this Website, at any time, in its sole and absolute discretion. Any user ID and password you may have for this Website are confidential and you must maintain confidentiality of such information.

4. Your Content

In these Website Usage Terms And Conditions, “Your Content” shall mean any audio, video, text, images or other material you choose to display on this Website. With respect to Your Content, by displaying it, you grant That’s So Creative, LLC a non-exclusive, worldwide, irrevocable, royalty-free, sublicensable license to use, reproduce, adapt, publish, translate and distribute it in any and all media.

Your Content must be your own and must not be infringing on any third party’s rights. That’s So Creative, LLC reserves the right to remove any of Your Content from this Website at any time, and for any reason, without notice.

5. No warranties

This Website is provided “as is,” with all faults, and That’s So Creative, LLC makes no express or implied representations or warranties, of any kind related to this Website or the materials contained on this Website. Additionally, nothing contained on this Website shall be construed as providing consult or advice to you.

6. Limitation of liability

In no event shall That’s So Creative, LLC, nor any of its officers, directors and employees, be liable to you for anything arising out of or in any way connected with your use of this Website, whether such liability is under contract, tort or otherwise, and That’s So Creative, LLC, including its officers, directors and employees shall not be liable for any indirect, consequential or special liability arising out of or in any way related to your use of this Website.

7. Indemnification

You hereby indemnify to the fullest extent That’s So Creative, LLC from and against any and all liabilities, costs, demands, causes of action, damages and expenses (including reasonable attorney’s fees) arising out of or in any way related to your breach of any of the provisions of these Terms.

8. Severability

If any provision of these Terms is found to be unenforceable or invalid under any applicable law, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole, and such provisions shall be deleted without affecting the remaining provisions herein.

9. Variation of Terms

​That’s So Creative, LLC is permitted to revise these Terms at any time as it sees fit, and by using this Website you are expected to review such Terms on a regular basis to ensure you understand all terms and conditions governing use of this Website.

10. Assignment

That’s So Creative, LLC shall be permitted to assign, transfer, and subcontract its rights and/or obligations under these Terms without any notification or consent required. However, .you shall not be permitted to assign, transfer, or subcontract any of your rights and/or obligations under these Terms.

11. Entire Agreement

These Terms, including any legal notices and disclaimers contained on this Website, constitute the entire agreement between 

That’s So Creative, LLC and you in relation to your use of this Website, and supersede all prior agreements and understandings with respect to the same.

12. Governing Law & Jurisdiction

These Terms will be governed by and construed in accordance with the laws of the State of Illinois, and you submit to the non-exclusive jurisdiction of the state and federal courts located in Illinois for the resolution of any disputes.

 

Project and Service Terms and Conditions

  1. For projects and services, Client will pay the Company the Price as set forth on the product page or proposal attached to this Agreement.  The Price shall include the number of concepts and revisions specified in the proposal or product page. The cost for additional concept designs, including labor and services, meetings, consultations, photography, and other services shall be charged at the current hourly rate.
  2. Company will not begin work on the Project until Company receives the acknowledgment of terms and inital payment. Client will pay Company an additional deposit for all materials, and third party services.
  3. Next and final payments are due, and in all instances before delivery of the completed Project and files to Client or a third party. Payments not made when due shall bear interest at the rate of one and one-half percent (1.5%) per month until paid.
  4. In addition to the Price, Client will reimburse Company for all expenses incurred in connection with the Project, including materials, third party services, shipping and insurance.
  5. Change Order. Client may request a Change Order, but any such request shall be subject to acceptance by Company. A request for a Change Order shall be made in writing. If a Change Order is accepted, it shall be subject to the provisions of this Agreement, including these Terms and Conditions. A non-refundable twenty-five (25%) percent deposit of the Price of a Change Order will be due upon the Company’s acceptance of a Change Order. The remaining seventy-five (75%) percent, or other balance due for a Change Order, shall be paid as provided for in paragraph three (3), above.
    1. If Client requests an acceleration of the agreed upon production schedule, it shall be deemed a Change Order. Such a Change Order shall include a fifteen percent (15%) increase in the Price and will be subject to the provisions of this Agreement, including these Terms and Conditions.
    2. In the event Company delivers manuscript, verbage, or other materials, which in the Company’s business judgment exceeds the scope of the Project, or which differs from the description of the Project provided by Client, the changes resulting therefrom to the Project shall constitute a Change Order.
    3. The Project may be re-priced by Company if, upon receipt of all elements of the Project, the Company determines, in the exercise of its business judgment, the scope of the Project has changed. In such event, a change in the scope of the Project shall be deemed a request for a Change Order.
  6. In addition to Price, sales, use and other taxes imposed by local, states, federal or foreign government shall be paid by Client.
  7. Production Schedule. This Agreement will provide for a production schedule, which shall be attached to and made a part of this Agreement. Company shall not be responsible for any delays occasioned by Client in connection with any Client approvals as provided for in this Agreement.
  8. Review and Acceptance. Client shall inspect any concept design, logo, copy, writing, design material, or other work performed by Company in connection with the Project within three (3) business days from the date of delivery. Failure of Client to notify Company of nonconformity with the description of the Project within such three (3) business day period shall constitute Client’s acceptance thereof.
  9. Corrective Action. Provided written notice of nonconformity with the description of the Project is given within the time period as provided for in paragraph eight (8), Company will take such corrective action as, in the exercise of business judgment, is required and complete such corrective action within a reasonable period of time, which shall be Client’s sole and exclusive remedy.
  10. Printing, Production, and Third Party Vendors. In connection with printing, production and third-party vendors, Company will negotiate the price and ancillary costs on Client’s behalf. Unless otherwise designated by Client, Company will work with vendors of its choice. Before such printing or other third-party services begin, Client shall remit to the Company an amount equal to one hundred (100%) percent of the amount charged for printing, production or other third-party services. Client acknowledges and agrees that Client shall be solely responsible for the payment of such production or third-party services, which shall be billed directly to Client. Such printing, production, or third-party services may be subject to a separate purchase order or contract provided in connection therewith. Client acknowledges and agrees that the Company shall not be liable for direct, indirect, or consequential damages or other cost, expenses, claims, or cause of action in connection with printing, production, or other services provided by a third party.

  11. In connection with Social Media and Digital Marketing Services (if applicable):

    The Company shall provide to the Client, services, which shall include the following:

    • Setting up social media and marketing platforms such as Facebook, Instagram, Twitter, and YouTube, email subscription services such as Mailchimp, Constant Contact, Google Ads, Facebook Ads, etc
    • Creating content, engagement as well as ongoing management of these platforms
    • Monitoring social media conversations and responding to the same
    • Purchasing advertisement on behalf of the Client using the Client’s provided budget
    • Managing all social media communication as more clearly elaborated in the pitch presentation.

    Authorization. The Client hereby authorizes the Company to access their social media accounts in relation to social media services. Upon termination of the agreement, the Company will relinquish access to accounts. The Client agrees to hold harmless the Company in any claim of liability in connection to social or digital marketing or advertising. 

  12. Proofs. If the Project or any element therefor requires services of a printer, if deemed necessary, Client will be furnished with a hard copy or PDF document proof. Client’s written approval will be required on all proofs. Client’s approval of a proof(s) shall constitute Client’s acceptance thereof within the time period provided for in paragraph eight (8), above. The cost and expense associated with any correction, error or omission after Client’s acceptance will be at Client’s sole expense.
  13. Third-Party Shipping. Client shall be responsible for all costs associated with the shipping, including insurance. Where any part of the Project is shipped to a third party for additional processing, photographic work, presswork, binding or labor necessary to complete the Client’s Project, Company shall not be subject to liability for losses incurred in transit or due to delays in transit.
  14. Intellectual Property. The Company shall retain common law, statutory and intellectual property rights, including copyright and trademark, and other ownership rights in connection with all original artwork, drawings, designs, and copy created in connection with the Project. In the event Client cancels or terminates this Project, the artwork, drawings, designs, copy or other work performed by the Company shall not be used by the Client or any third party, including, without limitation, for completion of the Project or any part thereof.  The Company shall have the right to use artwork, drawings, designs, copy or parts thereof in connection with future work or projects for other clients.  The Company may also photograph and otherwise use the work performed in connection with the Project to promote the Company.  Notwithstanding the forgoing, in connection with any logo(s) designed by the Company for the Client, upon payment by the Client to the Company of the Price, the Company hereby assigns and transfers to the Client all trademark, service mark, and other rights in connection with the logo(s).
  15. If Client cancels or otherwise terminates the Agreement, Client shall forfeit the deposit. If the work performed by Company at the hourly rate exceeds the amount of the deposit, Client shall pay Company for the performance of such work including the cost of, supplies, materials, and costs incurred through the date of notice of cancellation or termination from Client. In addition thereto, Client shall pay Company a cancellation or termination fee equal to fifteen percent (15%) of the Price.
  16. Limitation of Damages. Company shall in no event or circumstance be held liable for direct, indirect, special, incidental, consequential, or punitive damages sustained, including, without limitation to, any claim for loss of profits, or loss of prospective profits, sales or anticipated sales, or on account of any expenditure or other commitment made by Client. Company’s maximum liability under this Agreement shall not exceed the Price.
  17. Except as expressly set forth in this Agreement, Company makes no warranty with respect to this Agreement or its performance hereunder, expressed or implied, and Company expressly disclaims any implied warranty of merchantability and fitness for particular purpose.
  18. Client acknowledges and agrees that there may be variations in color between color proofs and the final Project, and shall accept the completed Project subject to such variations.
  19. Client will indemnify, defend and hold harmless, Company, its members, managers, employees, contractors, agents, successors and assigns from and against any and all liability, claim, demand, cause of action, lawsuit, judgment, settlement, and attorneys fees, and costs by reason of, arising out of, or resulting from any breach by Client in the observance and performance of its obligations under this Agreement, and infringement of any copyright, trademark, service mark, or other intellectual property right of any third party and third party claim.
  20. General Provisions.
    1. Company shall not be liable to Client for failure to perform any obligation under this Agreement which is due, in whole or in part, due to strike, war, fire, accident, act of God, insurrection, curtailment of or failure to obtain electrical or other energy supplies, inability to obtain labor, inventory, supplies, compliance with any law, regulation, order of any government entity, delay caused by Client, or due to any other unforeseen circumstances or other causes beyond the control of the Company.
    2. This Agreement constitutes the entire agreement among the parties, and the final written expression of all of the agreements between the parties, and supersedes all prior oral or written agreements or understandings. Except as otherwise provided herein, this Agreement may be amended or modified only by a writing executed by the parties.
    3. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one agreement.
    4. Any notice required or permitted under this Agreement shall be in writing and shall be delivered and deemed received as follows:
      1. by personal delivery or by facsimile (with electronic confirmation) during the recipients normal business hours, in which case it shall be deemed received at the time of such delivery or facsimile as the case may be;
      2. by certified or registered mail, in which case notice shall be deemed delivered on the date such return receipt is signed by the party or delivery is refused; or
      3. by nationally recognized overnight courier by next day delivery, in which case notice shall be deemed delivered on the first business day following the date of deposit with such courier.
  1. Any such notice shall be addressed to the parties at their respective last known addresses and facsimile numbers (or at such other address or facsimile number as either party shall specify to the other by notice given pursuant to this paragraph).
  1. This Agreement, and all questions related to its validity, interpretation, performance and enforcement shall be governed by and construed in accordance with the laws of the State of Illinois without reference to its conflict of laws principles.
  2. Any action or proceeding to prosecute or defend any lawsuit or other proceeding arising out of this Agreement shall be prosecuted and defended solely and exclusively in the Circuit Court of Cook County, Illinois, and the parties waive any objection to venue or that the forum is not convenient.
  3. The waiver by a party of a breach of any provision hereunder shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision of this Agreement.
  4. No extension of time for the performance of any obligation or act shall be deemed an extension of the time for performance of any other obligation or act.
  5. COMPANY AND CLIENT EACH KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE, PROSECUTE OR DEFEND ANY LAWSUIT ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AD NOT BEFORE A JURY.

 

 

Website Design and Maintenance Terms and Conditions

For website design and maintenance services, the Client hereby agrees to the following terms:

Authorization. The Client hereby authorizes the Company to access the FTP account of the website and authorizes the web hosting service to provide the Company with “write permission” for the Client’s web page directory, cgi-bin directory, and any other directories or programs which need to be accessed for this project. The Client also authorizes the Company to publicize their completed web site to Web search engines, as well as other Web directories and indexes.

Errors. You will have two weeks after launch to review the website and bring errors to our attention. On occasion, migration from the test server environment to another server can cause unforeseen errors. The Company will fix such errors (if possible) or modify the design to work around migration errors.

Warranties and Liability. Client agrees that any material submitted for publication will not contain anything leading to abusive or unethical use of the Web Hosting Service, the Host Server, or the Company. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming, advocacy of illegal activity, and any infringement of privacy. Client hereby agrees to indemnify and hold harmless the Company from any claim resulting from the Client’s publication of material or use of those materials.

Neither the Client nor the Company shall incur liability nor penalty for delays due to state of war, riot, fire, labor trouble, strikes, accidents, energy failure, equipment breakdown, delays of suppliers or carriers, action of government or civil authority and acts of God or other causes beyond the control of the client or the Company. 

The Company does not warrant the functions of the site will meet Client’s expectations of site traffic or resulting business or that the operation of the web pages will be uninterrupted and/or error-free. The Company will not be held responsible for occasional downtime of email or web site due to line interruptions and/or other instances beyond the Company’s control.

Indemnity Agreement. The Client further agrees to indemnify and hold harmless the Company for claims of any nature whatsoever pertaining to the services and goods provided, unless such claims are the result of negligent action by the Company. This includes loss of client furnished proofs and materials, missing project deadlines set for the completion of work, and loss of any information stored in the Company’s computers. Additionally, this Indemnity agreement includes claims relating to any software or other copyrightable materials furnished by the Client, and from any and all copyrights claims and/or misappropriation of trade secrets and/or any claim of theft or proprietary information. 

WordPress statement. The Company will install, and configure WordPress on the Client’s hosting server as described in the scope of work section. Since WordPress is a third-party option, the Company can’t be held responsible for any bugs or malfunctions associated with WordPress, its themes, or plugins.

If any bugs are found during the development phase or 15 days after launch, the Company will fix it (if possible) or update WordPress or the faulty plugin if it’s available. After 15 days, the request will be charged at the current hourly rate, or if applicable, as part of a maintenance agreement. 

Maintenance. If the Client has purchased website development from us, the Company will offer 15 days of complimentary monitoring of the website for any bug fixes or theme updates needed and fix if possible. Fixes or updates needed after that period will be charged at the current hourly rate. The Company does not offer support for web hosting or email or other subscription services unless otherwise purchased under a separate maintenance agreement.

Browser testing

Browser testing no longer means attempting to make a website look the same in browsers of different capabilities or on devices with different size screens. It does mean ensuring that a person’s experience of a design should be appropriate to the capabilities of a browser or device.

Desktop browser testing

We test our work in current versions of major desktop browsers including those made by Apple (Safari), Google (Chrome), Microsoft (Internet Explorer), and Mozilla Firefox. We’ll also test to ensure Microsoft Internet Explorer 8 for Windows users get an appropriate, possibly different, experience. We’ll implement a single column design for Internet Explorer 7 and below for Windows but we won’t test in other older browsers unless you specify otherwise. If you need an enhanced design for an older browser, we can provide a separate estimate for that.

Mobile browser testing

Testing popular small-screen devices is essential in ensuring that a person’s experience of a design is appropriate to the capabilities of the device they’re using. We test our work in:

  • iOS: Safari
  • Android 4.1: Google Chrome, Firefox
  • Android 3.2: Browser, Firefox

We currently don’t test Blackberry OS or Blackberry QNX, Opera Mobile, Symbian or other mobile browsers. If you need us to test using these, we can provide a separate estimate for that.

Changes and revisions

We know from experience that fixed-price contracts are rarely beneficial to you, as they often limit you to your earliest ideas. We don’t want to limit your ability to change your mind or make decisions later when you might be better informed.  The price at the beginning of this contract is based on the length of time we estimate we’ll need to accomplish everything you’ve told us you want to achieve, but we’re happy to be flexible. If you want to change your mind or add anything new, that won’t be a problem as we’ll provide a separate estimate to cover the additional work that will be approved by the Client before work begins.

Errors

We can’t guarantee that our work will be error-free (we’re human!) so we can’t be liable to you or any third-party for damages, including lost profits, lost savings or other incidental, consequential or special damages, even if you’ve advised us of them.

Mutual Cooperation

We agree to use our best efforts to fulfill and exceed your expectation on the deliverables listed above. You agree to aid us in doing so by making available to us needed information pertaining to your website and to cooperate with us in expediting the work.

 

Charges for Web Services Performed

3.1 Functionality or feature requests above and beyond those listed in the budget and/or the functionality specs may be considered out-of-scope and an amendment to the budget will be recommended. Projects that go dormant for longer than 45 days will incur fee to resume work at the discretion of That’s So Creative, LLC.