Project Guidelines, Terms & Conditions

Introduction

Referenced hereafter also as "We, "Us" and "Our" throughout this document, 21thirteen design provides full Internet solutions to businesses and organizations, including Custom Web design, Web Development, Search Engine Optimization (SEO) and Marketing (SEM), Social Media Marketing (SMM), consulting, e-commerce services, WordPress websites, hosting and management packages, domain names, and more, utilizing our in-house services and our network of strategic partners. Our goal is to create a customized, affordable and effective online solution that meets your needs now, with the flexibility to grow and expand as your needs evolve.

This document contains two main sections.

The first, entitled “Working with Us” outlines important information which will familiarize you with how your Project will unfold, what to expect and the various methods and guidelines we have learned from long experience will make your Project go smoothly and progress as quickly as possible.

We ask that you spend a few minutes reading this section and follow it as best you can. If you have questions about any sections or issues with the guidelines please let us know and we will be more than happy to answer those questions or resolve those issues to your satisfaction.

We do not expect every client to be as “computer-savvy” as we have to be, or to understand what is involved in creating, building or marketing a website and we consider an educated client a better client. Therefore we are always happy to help in that regard.

The second entitled “Legal Stuff”, is just that. It is for our protection as well as yours and covers issues we rarely have to deal with but have learned that - in this world - had better be put in writing. We pride ourselves on the way we interact with our clients and know that many now call us friends, but in the business world issues can arise and we want to make sure that those issues are addressed in advance as much as possible.

Working with Us

1.) Your Cost

We work on a fixed-cost basis. Once a Proposal is accepted and a deposit is made, 21thirteen design will deliver the agreed upon product or service as described in your Proposal at the cost quoted.

2.) Payment Terms and Project Stages

Initial down payment of 50% of project cost, due upon acceptance of your Proposal. This allows us to commit resources to your project. Payment of the initial down payment signifies your acceptance of the Project Proposal submitted to you as it is written, and of the Terms & Conditions stated in this document. When your payment clears, we begin Stage One of your project.

Stage One (Design Stage) of your project includes:

A. Consultation with you regarding the following aspects of your project, as needed or as specified in your Proposal:

Overall design, or "look and feel" of your website(s), and the Home page in particular
Marketing elements to be incorporated into your website(s), both graphic and textual
Image and text content of your entire website(s), and the Home page in particular
Organization of such content particularly as it pertains to the navigation of your site
Other elements of your Project as described in your Proposal

B. Creation of the actual design and layout of your website(s). Specifically this includes the following, as applicable to your Project: (define terms)

Design and layout of your Home page(s).
Design and layout of your “inner” or “sub” (non-Home) page.
Design and layout of the Header area, including logo.
Design and layout of the main navigation element.
Design and layout of the footer area.
Design and layout of sidebar area(s).
Design and layout of any specifically requested website components such as image viewers, animated elements, galleries, image links and other graphic elements as described in your Proposal.

For E-commerce websites:

Design and layout of one Category page.
Design and layout of one Product page.
Design and Layout of the Shopping Cart and Checkout pages.

For Wordpress websites:

Design and layout of one "static" (non-"blog") page.
Design and layout of one "blog" type page containing excerpts of "posts".
Design and layout of one "post" type page.

For all websites, we will use whatever graphic, image and text content you are able to provide us during the Design Stage, or we will use "dummy" text and images to be replaced by final copy and images during the Construction Stage. For E-commerce websites, we will use one product image and descriptions as supplied to us by you or a "dummy" product to design and layout the Category and Product page example.

Design and layout submissions will be presented for approval in the form of graphic images in a file-type most easily viewable on your computer, or in the form of a website framework viewable in a browser, depending on the project, at our discretion. Design and layout proposals will be modified and/or re-presented until they meet your satisfaction as to their "look and feel". If proposals are submitted to you in a purely graphic form, we warrant that your website’s appearance will be of equal quality when rendered by a browser.

We have very high standards. In our Collaborative Design Projects, where we rely upon your direct participation and approval, it is expected and is common design industry business practice to achieve approval within three reviews or edit sequences of a design submission. This differs from a design project where we are granted carte blanche to provide designs without your approval.

Interim payment of 35%. This payment is due at the midpoint of your project as determined by the amount of work and time we estimate to complete your project.

Stage Two (Construction Stage) of your project includes:

A. Construction of all pages of your website(s), including final text, graphics and images as provided by you or created by 21thirteen design in collaboration with you.

B. Finalization of all other elements of your site(s), including navigation elements, image viewers, animated elements, galleries, image links and other graphic elements, forms, Social Media elements, Newsletter Signups, Graphic User Interfaces (GUI's) for database use, custom Content Management System (CMS) dashboards, etc., as applicable or as described in your Proposal.

For Wordpress sites, this includes "Widgets" and "Plugins".

For E-commerce sites, this includes Shopping Cart and Checkout pages, integration with your Merchant Account system and Shipping Rules and any other E-commerce elements and rules as described in your Proposal. If you contracted with us to install products as described in your Proposal, this is included as well.

All of the above will be considered "Final" when they are tested as to appearance, layout and functionality, are visibly working in all major browsers, as described in the section of this document called "Browsers", and are approved by you.

C. Orientation and instruction for you and/or a designated representative on the use of any CMS, GUI, dashboard or "Back End" of your site(s) so that effective control of your website can be in your hands to the extent possible and as described in your Proposal.

Final Payment of 15%. This payment is due upon completion of Stage Two. Upon Final Payment, your site(s) will be uploaded and/or "Go Live" on the Internet and control of any Content Management included in your Project will be turned over to you. (Clients who are already in possession of their own hosting accounts or “Hosted Solution” accounts, please see the section 15, “Your Hosting Account” below.)

3.) Communicating with Us

Through the stages of your Project while we are consulting with you and working on the design aspects of your website(s), we will need to be able to communicate verbally and in writing as well as easily share files and even "Share Screen" (make the "desktop" of one of our computers visible to you on your computer screen, or vice-versa). In later stages you will be able to see your website(s) online as they are developed, but we will still need to have verbal communication with you (always possible via phone) and written communication with you using a method faster and more immediate than email.

For these purposes, we use the service of Skype, a popular, absolutely secure and free "peer-to-peer" system being used by upwards of 700 million people worldwide at the time of this writing. Skype will allow us to talk (with the use of a microphone and speakers which are more and more commonly built into the average computer), conference-call, instant message, and even video-conference if you have a computer camera hooked up or built in to your computer, on top of the ability to instantly share files and share screen as described above.

Skype can be downloaded for free at http://www.skype.com and is easily installed. Upon installation, choose a "Skype Name" and let us know what it is and we will send you a "Contact Request" on Skype which will allow us to take advantage of all the previously described functions. We will also assist you with setting your Skype Preferences to ensure your privacy and productivity while using it.

When our project is completed you can easily uninstall Skype if you wish, or continue to use it for your own purposes, as more and more people are doing these days. (Note: any one with Skype can call or video-call another person with Skype anywhere in the world for free, and there are even Skype apps for mobile phones and tablets.)

4.) Delivering Content to Us

There will also be a need throughout your Project to send us files containing text and/or graphic images. There are many ways to do this on the Internet, but long experience has taught us the various pitfalls of such methods, especially when multiple files and/or large projects are involved. Emails do not go through, files are too large, piecemeal delivery of files can get lost or are hard to keep track of, etc.

For these reasons we use the service provided by "Sharefile.com" which allows us to maintain an online folder for your Project which you can easily upload your files to. "Sharefile" is a secure online file sharing software solution, which will allow us to keep your files organized, easily visible and accessible. It is an Inc. Top 500 company and a CNET award winner. Companies such as PepsiCo, Nike and T-Mobile use it. It requires no software be installed by you and is of course free of charge for your use. We will create an online folder for your Project at or near the beginning of our consultations with you and give you simple instructions via email to access your folder for uploading, downloading and viewing at https://2113design.sharefile.com.

When sending content to us, we ask that you clearly mark and/or name text files and images as to the location where you will want them displayed on your website(s). When sending large numbers of files to us at a single time, we ask that you place them in a folder and "zip" - or "compress" - them into a single file. This is easily done on Windows 7 or on a Mac by "right-clicking" on the folder and choosing "Send to/Compressed (zipped) folder" for a PC or "Compress" for a Mac. If you do not have a built in "Zip" program, free versions are easily found on the Internet by googling "Free Zip Program". Cnet.com recommends WinZip, and has available a free version on their website at http://download.cnet.com. Using this method will save both you and us the considerable time needed to upload and download large numbers of files one at a time.

Important: please read carefully the section of this document entitled "Content for your Website", below, for details on the types of files we will need from you.

5.) Approval

Upon approval of the First and Second Stages of your website, we will ask for that approval to be put in writing either via email or Skype (see section entitled "Communicating with Us"). Approvals must be made within 24 to 48 hours once submitted to you, unless otherwise agreed upon, in order to avoid delays in your Project or scheduling conflicts with other ongoing projects. We may request an approval of a specific page or section of a page on your site(s) in order to avoid Excess Work.

6.) Content for your Website

We will use the content you provide as is without adjustment unless you specifically contract us to copy-edit or proofread text material or alter or edit graphic images beyond the scope of cropping or re-sizing images or graphic elements.

A.) To avoid creating Excess Work:

Text content provided to us should be carefully proofread before delivery.
We ask that all text content provided to us be in “Plain Text” form. In Word, Use “Save As” and choose “Format: Plain Text (.txt). In Pages, Choose “Export…” and the “Plain Text”. Or simply copy and paste your text content into a “Plain Text” editor to be found in your Utilities Folder before sending it to us.
If you wish us to format your text content (e.g. larger and smaller text, bold or italicized text, indents, etc.) on your web pages as we see fit, we will do so. If you wish us to embed your text content on your web pages in a specific form then ALSO send the content in a “Rich Text” form such as a “Word” or “Pages” document or as a PDF.

B.) Graphic content such as photographs, diagrams and illustrations should be delivered to us as .jpg, .gif or .png files. You are also welcome to deliver us Photoshop (.psd) or Illustrator (.ai) files. Files delivered to us in any other format may create Excess Work. It is always best to send us images larger than they will appear on your web page. Resizing an image down allows us to maintain the quality of the image while resizing the image to be larger may cause loss of image quality. If you will be using photographs taken specifically for your project by a Professional Photographer, please ask them to contact us to coordinate file types and sizes.

C.) We ask that you deliver text and images to us in an organized fashion, clearly named or renamed and marked as to where or on what page(s) they belong. If you need help renaming your images before sending them to us, please ask and we will be happy to help. If you have found images on a Royalty-Free Stock Image website that you wish us to use, please send us the name of the Stock Image website, image number and location on your website where you want the image used for each image. (Please see section entitled “Other Fees”.)

7.) Excess or Emergent Work

It’s not unusual after the start of a project to recognize that some content, function or service not originally envisioned for the website needs to be added to the Project. This is defined as “Emergent Work”. Emergent Work will be discussed and a mutually agreeable cost decided upon and then added as an addendum to your Proposal.

“Excess Work” is defined as work created by:

Content delivered to us and embedded in a web page on your site that you later decide needs to be changed or edited.
Content, design or layout you request to be changed after approval.
Unsuitable file types or sizes requiring file conversion, correction or enhancement.
Requiring us to develop your Project in a sequence other than our recommended practice.
Approvals not provided in a timely fashion.

We will warn you when appropriate that Excess Work is being created and do our best to work with you to avoid additional expense. Excess Work is billable at the rate of $110 per hour.

8.) Other Fees

Hosting fees for standard websites or E-Commerce websites and ancillary resources such as SSL Certificates, email marketing services and video hosting services have their own accounts and fees associated with them. All of these fees are part of your own monthly budgeting and are not included in the cost of development services.

We will work with your existing hosting resources in general. On occasion it is sensible to change hosting services and consolidate domain and hosting but we will not recommend this without practical technical reason. We offer domain registration and hosting services through www.21thirteenhosting.com, backed 24/7 Tech Support.

If you need Royalty-Free images, we maintain accounts with a number of Royalty-Free image providers and can usually download them at a cost of between $5.00 and $10.00 per image. We will notify you if the images you choose are more expensive than that and only download them for you with your consent. The cost of your Royalty-Free images will be added to your Final Payment.

9.) Browsers

As everyone knows, every browser renders websites slightly differently. 21thirteen design works hard to make your website look good on all major browsers on all computers. This is a challenge that all web designers and developers face in today’s Internet market. We guarantee that your site will look good and function properly in Internet Explorer 7, 8 and 9, Firefox, Chrome and Opera on a PC and Safari, Firefox Chrome and Opera on a Mac. We DO NOT support Internet Explorer 6 or earlier versions, Firefox 3 or earlier versions, or ANY browser on PC’s with Operating Systems earlier than Windows XP.

10.) Log In User Names and Passwords

21thirteen design will ensure that you receive in written electronic form any log in information that we create for you, including domain name registration, hosting accounts E-commerce and Wordpress dashboard logins, etc. This information is confidential and will not be shared with anyone without your written consent. We will do our best to keep this information on record for you as long as possible but we do not guarantee that we will have it should you lose or misplace it. We urge you to keep multiple copies of this information in secure locations that will be accessible to you in the future.

Important: Please see our Definitions of Terms at the bottom of this document.

At the bottom of this document, you can also find a concise and helpful Summary of Project Utilities and Resources covered in this “Working With Us” section.

Legal Stuff

11.) Confidentiality

21thirteen design recognizes and acknowledges that your acceptance of our Proposal creates a confidential relationship between 21thirteen design and Client and that information concerning Client's business affairs, customers, vendors, finances, properties, methods of operation, computer programs, and documentation, and other such information, whether written, oral, or otherwise, is confidential in nature. All such information concerning Client is hereinafter collectively referred to as "Confidential Information."

12.) Non-Disclosure

21thirteen design agrees that, except as directed by Client, it will not at any time during or after the term of your Project disclose any Confidential Information to any person whatsoever.

13.) Conflict of Interest

21thirteen design shall not offer or give a gratuity of any type to any Client employee or agent.

14.) Content

A. Acceptable Forms of Content Delivery: Text and image content should be delivered to us in digital/electronic format, and appropriately represent the information to be displayed on your website. We will use the content you provide as is without adjustment unless you specifically contract us to copy-edit or proofread text material or alter or edit graphic images beyond the scope of cropping or re-sizing images or graphic elements. Content you provide to us after your Project starts, or content that you desire to be changed or modified after pages have been developed will incur additional hourly fees if rework is necessary to make adjustments, per the section of this document entitled “Excess or Emergent Work”.

B. Transferred or Otherwise Copied Content: When website content is being copied or transferred to 21thirteen design from another hosting account provider or any other source, Client assumes all responsibility for content that may be rights-managed, in accordance with the Legal Waivers, Disclaimers, Limits of Liability, and Durability section of this Agreement.

1. Damaged or Missing Content: When transferring a website to 21thirteen design from a third-party hosting service provider, 21thirteen design is not responsible for correcting damaged or missing content from the third-party hosting service provider. Examples of damaged or missing content include, but are not limited to, broken links, corrupted files, proprietary code, and other such materials that are not readily available or cannot be obtained from the third-party service provider.

2. Transfer of Erroneous Content: If your website is being transferred to 21thirteen design hosting without specifically including copy editing services in your Proposal, 21thirteen design is not responsible for typographical errors, layout errors, typesetting errors, grammar errors, spelling errors, or any other errors transferred from source documents and files.

C. Login Access to Relevant Accounts: For the purpose of fulfilling the agreed upon Scope of Work as described in your Proposal, the term "Content" includes all account access information that we need in order to transfer or configure files, E-commerce accounts, shopping carts, merchant services, domain names, email accounts, 3rd-party services, etc. in conjunction with your Project.

15.) Your Hosting Account

In the case of a Web Hosting Account or Hosted Solution Account being owned and controlled by Client at the inception of your Project, you agree not to exclude 21thirteen design from access to the account until the Project is complete and paid for in full. Should you do so, you agree that you are subject to the conditions set forth in this Agreement in the sections entitled "Uncollectable Payments", Declined Payments", "Languishing Projects" and "Active and Dormant Accounts".

In the case of Web Hosting Accounts or Hosted Solution Accounts set up by 21thirteen design for you, we promise to turn over all account access to you once your Final Payment has been made, and instruct you on how to exclude us from access to your account(s) should you choose to do so.

16.) Third-Party software and Licensing

In the event other Third-Party-Materials are necessary to complete the project, including but not limited to applications; software; stock photo images; clip-art; video clips; subscriptions; or licenses, you agree to procure and provide us with, or reimburse us for procurement of such materials as needed.

17.) Completion and Grant

21thirteen design agrees that upon Final Payment your Project Work Product will become your exclusive property. Any rights granted to 21thirteen design in your Proposal shall not affect Client's exclusive ownership of the Project Work Product. 21thirteen design will not withhold the full publication of your website(s) or control of your Project Access and Assets once Final Payment has been fully received.

Because there are conventions used in website layout that are commonly associated with certain types of websites and certain industries in the Internet marketplace, for the purposes of this document the term “Project Work Product” herein includes Design and Content but does not include Layout.

“Project Work Product” consists of your identical design, logo, images that you own outright, text content provided by you or written by us for you, browser script or computer code that you own exclusively and any other exclusively owned website elements as described in your Proposal.

18.) Hourly Rates

Our hourly rates are subject to change without notice. Project pricing and hourly rates specific to the Scope of Work for your Project are guaranteed to remain as quoted in your Proposal through the completion of your Project. The hourly rates quoted for additional (future) work after your Project’s completion are not guaranteed in perpetuity and may change (increase or decrease) in response to market demands.

19.) Payment Methods

21thirteen design will accept payment for services and products by check, credit card, PayPal, bank wire, ACH, eCheck, EFT, bank transfer or cash. In the case of cash an electronic Paid Invoice will be provided. In all other cases, printed or electronic record of the payment provided by the paying institution will be considered adequate proof of payment. In all cases other than cash payment, payment will not considered to be complete until funds clear into our bank account.

20.) Notification of Recurring Payment Changes

It is important that you update any credit card, bank account, PayPal or other payment method changes immediately as they occur, and notify us. Client is responsible for making payment information updates in a timely manner in order to preclude any service fees from being incurred.

21.) Uncollectable Payments

In the event that we are unable to collect payment for work performed or other valid charges and fees as described in this Agreement, including future invoices for emergent and routine website updates, you agree to be responsible for any and all fees pursuant to, and incidental to, obtaining payment for such balances due to 21thirteen design. Such fees may include but are not limited to, collection agencies, travel, lodging, per-diem, attorneys, court costs, etc., for attempts made to obtain payment and reconcile your account.

22.) Delinquent Payments

21thirteen design reserves the right to suspend, withhold, undo and/or discontinue any services including, but not limited to, hosting, marketing, web design, domain registry, and email related to your account until your account is reconciled in good standing, within 30 days of written notice of our intent. In such an event, notice will be provided to the addresses of record via Email, USPS and telephone. In the event that your website is hosted on a server other than provided by 21thirteen design, you agree that 21thirteen design may remove or reverse any work performed that has not been paid for, or in the event that 21thirteen design no longer has access to that work, you agree to have the work removed or reversed until such time as your account is reconciled as paid-in-full to 21thirteen design.

23.) Declined Payments

A. NSF Checks/Bank Drafts: Non-Sufficient Funds (NSF) checks/bank drafts will incur a fee of $30 per incident.

B. Recurring Monthly Service Fees: If a Credit Card, PayPal or other payment method is declined, a service fee of $30 per incident will be assessed to Client. This includes payments that decline due to expired credit cards, over-limit charges, or card numbers that have been replaced due to being reported lost or stolen. The automated billing system for hosting and ongoing marketing will still attempt to process the transaction using the information on file. It also includes any payment that declines due to the payment method(s) associated with Client's PayPal or other account failing to process due to, but not limited to, credit card expiration, Non-Sufficient Bank Funds, closed accounts, etc.

C. Second Attempt at Billing: If a credit card, PayPal or other payment method, paper check, or bank draft payment is declined, we will wait five (5) business days before attempting to re-present or repost the payment, during which time we will attempt to contact you by phone and/or email. If a PayPal or other payment is declined, the PayPal or other service may attempt to represent the transaction one additional time. If the subsequent payment is declined (credit card, paper check, bank draft, PayPal or other payment method), it will be considered a new, separate incident, and the service(s) for which the payment was to be applied will be suspended until the account is paid to good standing, including resulting service fees.

D. History of Declined Payments: If payment for an ongoing monthly service declines for three months out of a twelve month period, you agree to convert monthly billing to an annual billing interval for website hosting services, and/or to a quarterly billing interval for ongoing Search Engine Marketing (SEM) services, and will be invoiced for pre-payment of the next billing period, accordingly.

24.) Chargebacks

If you dispute a credit card charge or bank draft transaction due to your oversight, negligence, or error, you agree to reimburse 21thirteen design for any chargeback fees that result, and you agree to reinstitute payment for services rendered or contracted which you charged back.

25.) Languishing Projects

Upon your acceptance of your Proposal, as signified by the Initial Payment having been made, this document, along with the Proposal, becomes a legal and binding Agreement for contracted services with respect to the Scope of Work contained within the Proposal. Your Project will be prioritized and managed at the opportunity cost of other projects that we might have otherwise accepted. Consequently, the following provisions are in effect in order to ensure that 21thirteen design is able to make reasonable and timely delivery of your Project with minimal damage or impact to our other clients' projects. A "languishing project" is one with a lapsed due date and/or either has made no progress or insufficient progress to ensure completion within a reasonable period of time ("reasonable delay") as specified herein.

A. Reasonable Delay: If circumstances develop that cause delays by any Party to this document, we will make every attempt to adhere to the proposed Project End Date as specified in the Proposal. We are understanding and flexible to reasonable delays due to emergent circumstances unforeseen at the Project Begin Date. For the purposes of this Document, all Parties agree that within 45 days is considered "reasonable delay".

B. Our Fault: It will be considered our fault if we, our strategic partners, or our assigns are unable to complete your Project within 45 days of the Project End Date due to circumstances for which we are responsible, including technology failure on our part, labor strike, or incompatible skill set for the Scope of Work we have agreed to herein. Unless mutually agreed upon otherwise, we will prorate the billing (at the discounted rates herein) to account for work actually performed, and we will provide it to you in a fashion that is usable by another professional web developer. After prorating the billing, we will then issue you a refund for the amount of any overpayment you have made, or if a balance is due to us, we may waive such balance to reconcile your account.

C. Not Our Fault: It will be considered not our fault if we, our strategic partners, or our assigns are unable to complete your Project within 45 days of the Project End Date due to circumstances including but not limited to not receiving necessary content and materials from you, your failure or refusal to communicate or respond to repeated requests we initiate (history of not returning phone calls, emails, etc.), mid-project changes to Scope of Work which cause project delays, and/or rework of any kind after you have approved or accepted project work. If any of the aforementioned situations in this paragraph arise and we are unable to resolve them within a reasonable delay, after 45 days you authorize us (or the applicable billing Party) to apply payment in full for the remaining balance on account using your payment method on file, which we will then apply as a non-refundable credit to your account. We will apply the credit on your account to the Scope of Work of your Project once the project resumes, unless the project becomes a Dormant Account as defined in the following section.

26.) Active and Dormant Accounts

A. Dormant: Your customer account with us will be considered “active” for one year after any activity posted to it. Your account will be considered ‚”dormant” if no transaction activity occurs within one year. Once an account becomes "Dormant", the account will be immediately closed, any unclaimed work will be permanently and irreversibly purged (deleted) from our servers without saving it to external media, and the amount paid by Client for the unclaimed work will be forfeited without credit or refund.

Hosting, Search Engine Optimization (SEO), Search Engine Marketing (SEM), Domain Name purchases and renewals, Web Development Work, Graphics Design work, or most other transactions (receipts or invoices) will serve to reset the one year (365 days) counter (exceptions include account service charges, finance charges on overdue balances, and any monthly account management fees on dormant accounts) to keep your account in an active status for the respective service provider.

B. Dormant with Balance Due: Dormant accounts with a balance due are considered negligently delinquent, meaning that the outstanding balance due is excessively overdue for a period of over one year. We will attempt to obtain payment from you for overdue balances via periodic statements mailed to your last known billing address on file. To maintain administrative efficiency, your approval of this Agreement acknowledges your understanding that balances due on dormant accounts will be considered “bad debt” and may be referred to a collections agency, which in turn may reported to credit bureaus. At our discretion, we may also pursue legal action to recover funds from overdue balances, in which case you agree to pay all costs and fees including, but not limited to, travel, lodging, per-diem, attorneys, court costs, etc., incidental to the collection of your balance due. Your Dormant Account with any balance due will be immediately closed, and any other services provided to you by 21thirteen design will be terminated without refund.

C. Dormant with Credit on Account: Dormant accounts with credit balances are considered to be abandoned funds, meaning that the outstanding credit has aged to the point where you have lost interest in retaining it or receiving benefit from its use for a period exceeding one year (365 days). We will notify you of any refundable credits you have on account via periodic statements or credit vouchers mailed to your last known valid billing address on file. To maintain administrative efficiency, your approval of this Agreement acknowledges your understanding that dormant accounts with credit balances will be assessed a $25 monthly management fee beginning on the first day that begins the second year of no activity on the account. The monthly management fee will continue in perpetuity until a transaction occurs which brings the account back into “active” status, or the credit balance is depleted. Once a credit balance is depleted from a dormant account, the account will thereafter be immediately closed.

D. Dormant with Partial Work Completed: Accounts that qualify as a "Languishing Projects (Not Our Fault)" for a period exceeding one year (365 days) that are paid up to the point of work completed, but on which the agreed upon Scope of Work have not been completed, will be considered "Dormant with Partial Work Completed". Until the point where the account becomes "Dormant", Client may "claim" their partially completed work by requesting that any work performed by 21thirteen design is saved on external media (CD-ROM, DVD-ROM, or Flash Drive) and shipped with delivery confirmation to Client for a service fee of $50, paid in advance.

27.) Legal Waivers, Disclaimers, Limits of Liability, Durability

Why This Section is Needed
The following Waivers, Disclaimers, and Limits of Liability are in effect due to 1) the widespread and far reaching linkable and attainable content digitally available via the Internet, 2) our inability to control and monitor such content, 3) our inability to certify or verify rights managed content provided to us by our clients with regard to their website’s development, and 4) the ability for our clients to make changes and additions to their own website content themselves, or through third-party applications and services beyond our control.

You agree to indemnify and hold harmless 21thirteen design, our strategic partners, and our assigns, from, but not limited to, legal action and any associated attorney’s costs, court fees and associated expenses as follows herein.

A. Disclaimer of Warranties: 21thirteen design disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, operability, and/or availability of information or material displayed on Client’s Website or hosting service. Additionally, 21thirteen design disclaims any responsibility for the deletion, failure to store, misdelivery, or untimely delivery of any information or material. Further, 21thirteen design disclaims any responsibility for any harm resulting from downloading or accessing any information or material on the Internet through Client’s website or any other website.

21thirteen design services are provided "as is," with no warranties whatsoever. 21thirteen design disclaims to the fullest extent permitted by law all express, implied, and statutory warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. Additionally, 21thirteen design disclaims any warranties regarding the security, reliability, timeliness, and performance of all hosting, merchant account, consultant, and other service providers related to support, performance, and functionality of Client’s website. Further, 21thirteen design disclaims any warranties for any information or advice obtained through or advertised related to the hosting, merchant account, consultant, and any other service or services, as well as for any information or advice received through any links provided in or by such services.

Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. If any portions of the Disclaimer of Warranties paragraphs do not apply to you because the law does not allow them, the remaining portions of the Disclaimer of Warranties paragraphs which are allowable by law remain in full force and effect. You also may have other rights that vary from state to state and jurisdiction to jurisdiction.

In states where exclusion of implied warranties is not allowed, and/or in any situation not covered elsewhere by this Agreement where damages may otherwise be awarded, Client agrees that the maximum amount of damages is limited to the actual monies paid to 21thirteen design as agreed upon specifically and solely in the “Scope of Work" and “Project Pricing" sections of this Agreement for work performed, excluding any and all website hosting fees and/or ongoing Search Engine Marketing (SEM) fees. Any payment of damages agreed to be paid to a client will require the client to immediately cease use of the website and any other services provided by 21thirteen design and the agreement of the client to refrain from use of any website design or business services provided by 21thirteen design from that day forward.

B. Limitation of Liability: Under no circumstances shall 21thirteen design be liable to any user on account of that user’s use or misuse of, or reliance on, the hosting, merchant account, or other third-party services associated with Client’s website or provided to Client. Such limitation of liability shall apply to prevent recovery of direct, indirect, incidental, consequential, special, exemplary, and punitive damages whether such claim is based on warranty, contract, tort (including negligence), or otherwise, (even if 21thirteen design has been advised of the possibility of such damages). Such limitation of liability shall apply whether the damages arise from use or misuse of, and reliance on, such services, from inability to use such services, or the interruption, suspension, or termination of such services (including such damages incurred by third parties). Client holds 21thirteen design, its officers, directors, employees, subcontractors, strategic partners, and other assigns harmless from any and all errors, omissions, and/or damages that may relate to services rendered or content contained on or within Client’s website, as well as from any marketing efforts related to or incidental to the promotion of Client’s website.

Some states or other jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitations and exclusions may not apply to you. If any portion of the Limitation of Liability paragraphs does not apply to you because the law does not allow them, the remaining portions of the Limitation of Liability paragraphs which are allowable by law remain in full force and effect. You also may have other rights that vary from state to state and jurisdiction to jurisdiction.

In states where exclusion or limitation of liability for incidental or consequential damages is not allowed, and/or in any other case not covered by this Agreement where damages may be awarded, Client agrees that the maximum amount of damages is limited to the actual monies paid to 21thirteen design as agreed upon specifically and solely in the “Scope of Work and Price” Section, (Paragraphs 2.a., 2.b., and 2.c.) of the “Project Vital Signs” portion of this Agreement for work performed. Any payment of damages agreed to be paid to a client will require the client to immediately cease use of the website and any other services provided by 21thirteen design and the agreement of the client to refrain from use of any website design or business services provided by 21thirteen design from that day forward.

In the event of any dispute arising from the terms or performance in conjunction with this Agreement, Client agrees to pay their fair share of costs as determined by independent certified mediation including, but not limited to, travel, lodging, per-diem, attorneys, court costs, etc. incidental to the resolution of such dispute.

C. Content Posted on, Linked To, or Linked From Client’s Website: Client’s website, the sites displayed in Internet search results, or linked to/from Client’s website may be developed by people or companies over whom 21thirteen design exercises no control. We are not responsible and shall not be liable for the content, listings or advertisements contained in websites we develop, and those websites may include technical inaccuracies or typographical errors notwithstanding our efforts to eliminate them. 21thirteen design does not check licenses, trademarks, certifications, copyrights and other certified or rights managed content provided by Client or provided to Client, and Client agrees to hold 21thirteen design harmless of all infractions, breaches, or legal consequences resulting from use or misuse of content posted on Client’s website. Client assumes sole, total and complete responsibility for use of all content on Client’s website. 21thirteen design does not assume the responsibility of monitoring the use of trademarks, certifications, copyrights, or other rights of third parties. 21thirteen design may make improvements and/or changes in the products, services, and/or programs described in these materials at any time without notice. A search using Internet search tools, resources, or services may produce search results and links to sites that some people find objectionable, inappropriate, or offensive. 21thirteen design cannot guarantee that an Internet search will not locate unintended or objectionable content and assume no responsibility for the content of any website included in any search results, including Client’s site.

Links created by 21thirteen design personnel (and also 21thirteen design’s subcontractors and assigns) that involve article and blog submissions in conjunction with search engine marketing efforts performed by 21thirteen design may credit the Client’s name, Client’s company, 21thirteen design or a 21thirteen design employee, vendor, subcontractor or other assigns as the author or co-author, with content of the written copy to be created at 21thirteen design’s discretion for search engine promotion and marketing merit. Client may request (in writing) to review such content prior to posting and/or publishing articles and/or blog entries. Upon Client’s review of written copy content, or in the absence of Client’s written request for review of such content preceding the publication or posting date of such content, Client agrees to hold harmless 21thirteen design from any liability, misrepresentation, or damages resulting from article and blog citations.

D. Search Engine Optimization (SEO), Search Engine Marketing (SEM) and Social media Marketing (SMM) Disclaimer: Although it is our goal, when contracted to perform SEO, SEM and SMM services, to facilitate top placement in any given category with selected keywords for our Client’s website, we can not guarantee such results. Different search engines employ various criteria, which often change on a month-to-month basis. Your placement on a “search engine results” page is not only subject to these criteria, but also the past SEO and SEM history, Web traffic and popularity of other websites. Some criteria that influence your website’s placement on the search engines include (but are not limited to) the following:

Keyword selection (words that define your business, products and services)
Keyword relevance to site text (how words are used, and their placement on the page)
Number of hits per page (traffic to the site from search engines or direct)
Number of pages on the site with navigable links (scope of site)
Number of cross-references on the Internet (reciprocal links, Blogs, etc)
Use of Alt-Tags, image titles, and other Web site elements (including Meta Data)
Number of site modifications per month (freshness of content)
Frequency of search engine submission (not too often or seldom)
Use of Flash, certain Java scripts or other elements that impede optimization (e.g. images of text versus actual text)

There are literally dozens of additional criteria that span between various search engines and directories on the Internet. Although 21thirteen design can not guarantee you the Number One spot on a given search engine for any given keyword, we can assure you that methodical analysis and consistent review of your SEO, SEM or SMM strategy should gradually elevate your placement to optimal levels. It may take days, weeks, or months for a given keyword to reflect your placement on the first page of search results, depending on individual words used, and some keywords may not yield favorable/desirable results at all.

We state this disclaimer to provide you with an informative, realistic appraisal of what is involved with Search Engine Optimization (SEM), Search Engine Marketing (SEM) and Social media Marketing (SMM), and to provide advance notification that no online solution company can ethically guarantee your positioning on the major search engines. Our goal is to optimize your site using more effective methods and a consistent process.

E. Cancellation of Agreement:
Purchases are non-refundable. Because our production department may immediately begin provisioning your website resources and other factors. However, at our sole discretion, we may make adjustments or partial refund. To make a determination we use the principal of fair exchange.

For example: If a mistaken purchase was made and you communicate within hours of your realization by phone and email we would certainly consider your request. A full or partial refund may be made or a full credit to the correct service. However, after projects are underway, many hands and minds are working for you. So the more that has been done and the more time that has transpired the less reasonable it is to expect or request a refund. All projects, even at the smallest of scope use time and energy from the first call or email. We hope that you will work with us in the spirit of fair exchange and always consider the best for all concerned.

Considering all of the aforementioned, after three days from the time of your purchase we will not consider a request for a refund as reasonable or fair minded.

This agreement shall commence upon the Initial Payment for your Project and may be cancelled by you with three (3) business days via person to person direct phone contact between management @ (646 808 0391) or (646 334 4050) or (516 946 2745) and confirming written email notice to design@21thirteen.com and/or info@21thirteen.com. If this Agreement is cancelled by you after work has begun, you agree to pay for actual work performed at a pro-rated hourly rate of $110/hr. Funds paid in advance will first be applied to actual work performed which will include at this point our cost of sales at 25% of your project total amount.

If for any reason cancellation should become necessary after three (3) days then progress project milestones will be used as the basis for determination of a final payment schedule to 21thirteen design. Payments for work performed beyond the project milestone midpoint are due with your request to cancel. 21thirteen design will provide a written account of work performed and will deliver all project materials to you. Remaining balances in your favor will be refunded within 30 days.

F. Durability of Agreement:
21thirteen design provides services to clients in all 50 states of the United States of America, and internationally. Individual state laws and laws from country to country vary. In the event that any clause or section of this Agreement is determined by competent legal authority to be invalid or unlawful, the rest of this Document remains intact and enforceable to the fullest extent of applicable laws.

The laws of the Commonwealth of Massachusetts will govern any and all legal dispute(s) arising from the content of this Agreement.

Definition of Terms:

Design – Color selection, logos, graphics, backgrounds, created animations, font selection and navigation styles which, when arranged in a unique combination, give a website an identity and distinguishes it from other websites. The “look and feel” of a website. A noticeable difference in three or more of these elements constitutes a newly unique design.

Layout – the horizontal and vertical arrangement, alignment, spacing, delineation, separation or grouping of Website Elements on a web page.

Content – the exact and unique set of words, graphic images, photographs and other Website Elements used on your website.

Website Elements – A web page consists of graphics (such as logos, illustrations, icons and images), photographs, text, links (or “hyperlinks”), forms, navigation elements and animations (anything that moves or changes automatically or at the prompting of a person); each can be considered as separate and each of which is considered a Website Element.

Navigation Elements – a grouping of links (or “hyperlinks”) on one or more of your web pages, usually found in the same location and used to navigate between sections or pages of your website.

Royalty-Free Image - photographs and other pictorial representations created for general use. Users pay to license the images, then can use them an unlimited or fixed number of times without paying additional fees. The copyright remains the property of the artist or photographer who created the image.

Merchant Account - a business banking relationship whereby you and a bank, working through a Payment Gateway, arrange to accept customer credit card and electronic payments originating at an E-commerce website. It is a separately paid for service that is connected to your e-Commerce Hosted Solution website or other Shopping Cart software.

Shopping Cart - Software that allows consumers to select merchandise from a website's product catalogue, review what they have selected, make necessary modifications or additions, and purchase the merchandise by way of integration with a Merchant Account.

E-commerce Software Platform - A set of software applications allowing businesses to create web pages and sell products or services to their customers over the Internet through integration with a Merchant Services Account. Ecommerce Software Platforms can be grouped into one of the following two categories:

Integrated Software - Existing software which must be configured and customized for your site, and which is self-hosted. This software may be purchased or it may be free, “Open Source” software, and there is typically no external support provided to help you maintain and operate your site.

E-commerce Hosted Solution – The web host is providing the use of licensed e-commerce software or e-commerce software developed by the host. Your entire site resides on their servers. The monthly fee includes use of the software and web hosting, as well as technical support to help you maintain and operate your site.

Summary of Project Utilities and Resources

Skype - Skype can be downloaded for free at http://www.skype.com and is easily installed. Upon installation, choose a "Skype Name" and let us know what it is and we will send you a "Contact Request" on Skype. This will allow us to take advantage of Skype's many useful functions, which will help us to be productive. We will also assist you with setting your Skype Preferences to ensure your privacy and productivity while using it.

Sharefile - "Sharefile" is a secure online file sharing software solution that will allow us to keep your files organized, easily visible and accessible. It is an Inc. Top 500 company and a CNET award winner. Companies such as PepsiCo, Nike and T-Mobile use it. It requires no software be installed by you and is of course free of charge for your use. We will create an online folder for your Project at or near the beginning of our consultations with you and give you simple instructions via email to access your folder for uploading, downloading and viewing at https://2113design.sharefile.com.

Zip - When sending content to us, we ask that you clearly mark and/or name text files and images as to the location where you will want them displayed on your website(s). When sending large numbers of files to us at a single time, we ask that you place them in a folder and "zip" - or "compress" - them into a single file. This is easily done on Windows 7 or on a Mac by "right-clicking" on the folder and choosing "Send to/Compressed (zipped) folder" for a PC or "Compress" for a Mac. If you do not have a built in "Zip" program, a free version of WinZip can be downloaded at
http://download.cnet.com/WinZip/3000-2250_4-10003164.html.

Plain Text - We ask that all text content provided to us be in “Plain Text” form. In Word, Use “Save As” and choose “Format: Plain Text (.txt). In Pages, Choose “Export…” and the “Plain Text”. Or simply copy and paste your text content into a “Plain Text” editor to be found in your Utilities Folder before sending it to us.

Royalty-Free Stock Image Providers – 21thirteen design maintains accounts with the following Royalty-Free Stock Image Providers, which provide a wide selection of images at very reasonable prices:
istockphoto: http://www.istockphoto.com/index.php
dreamstime: http://www.dreamstime.com
fotolia: http://us.fotolia.com
thinkstock: http://www.thinkstockphotos.com

You can also find an excellent but more costly selection of images at:
Jupiter Images: http://www.jupiterimages.com
Getty Images: http://www.gettyimages.com