Terms and Conditions of Service

The Terms & Conditions of Service was last revised on January 25, 2005

1. Parties.

This agreement is between Web Design Drive (PROVIDER) and the party as specified on the estimate or invoice (CLIENT).

2. Web design services only.
This agreement covers the web design and maintenance services only. Other Internet services by the same PROVIDER are available at www.Web Design Drive and are subject to another agreement.

3. Professional design services (flat fee).
Include plans Starter, Select, Deluxe, and Premium. Those are discounted services based on pre-designed set of about 4,000 plus templates in about 50 categories. CLIENT has the right to browse from any of the pre-designed templates to select a template.

4. Turnaround time.
Approximate turnaround time for each plan is specified at the web site. It starts after the CLIENT submits all of the web site content to PROVIDER.

5. Policies.
CLIENT agrees to abide by PROVIDERS "Acceptable use policy" and "Copyright infringement policy". PROVIDER reserves the right to change the policies from time to time to reflect the dynamic nature of the Internet. Both policies are available on-line any time or as a hard copy by request only.

6. “Add on”.
PROVIDER offers a number of standard “add on” features at a flat rate. CLIENT agrees to pay such flat rate for the feature “as is”. If client requires additional features he agrees to pay for the extras on per hour basis.

9. Maintenance.
PROVIDER is offering and CLIENT has the option to subscribe for web site maintenance services. Maintenance plans vary depending on the needs of the CLIENT. The maintenance plans and the monthly fees are listed at the web site.

10. Web Design Drive logo placement.
CLIENT agrees the text and logo “Website by Web Design Drive” to be placed at the bottom of each and every web page designed by PROVIDER. The text and logo will be linked to PROVIDER’s web site. PROVIDER reserves the right to enforce the logo display by technical means.

11. Copyright.
Web Design Drive is the owner of the Copyright of all designs. CLIENT is the copyright owner of the content (text, pictures, software etc. provided by the CLIENT) unless CLIENT uses someone else’s copyrights with permission. CLIENT is notified hereby that there are severe penalties provided by the Law for Copyright infringement. CLIENT will be fully responsible for copyright infringement of any and all of the content provided by client including but not limited to text, pictures, photos, software, data bases etc.

12. Price change.
PROVIDER has the right to change the price of the services to reflect a change in the cost of the service, or other reasons.

13. Service schedule.
Both parties commit to the schedule as outlined in Appendix A. Delays caused by the CLIENT will result in delayed delivery.

14. Content submission.
PROVIDER provides online tool for content submission and will accept every other reasonable communication like e-mail, Postal Service, fax etc. PROVIDER assigns a Project Manager to each design project. The Project Manager is available to CLIENT 8 hours per day, 5 days a week to facilitate the content submission and to answer questions. It is CLIENT’s responsibility to provide all the content in a timely manner. Design work will not start before all content is submitted.

15. Quality of Services.
PROVIDER will apply the best efforts to provide the best possible quality. As with any design work client’s satisfaction can not be guaranteed. PROVIDER will not take returns and refund fees based on quality issues.
16. Fees.
CLIENT agrees to pay for the service fees as specified at the web site.

17. Delivery.
PROVIDER will deliver (install) the design to a valid web address specified by CLIENT.

18. Web hosting services.
CLIENT understands and agrees that he has to have active web hosting in order to be able to accommodate the web design. Web Design Drive provides web hosting services subject to separate agreement.

20. Acceptance.
CLIENT agrees to accept the design within 3 business days after the notification of delivery. Mechanical errors can be reasons for non acceptance (rejection). Examples: someone else’s web site was delivered by mistake, missing pages, broken links, missing content etc. Design quality can not be a reason for rejection. Examples: don’t like the design, expected something else etc. can not be reasons for rejection. If client does not respond to inquiry for acceptance within 3 business days the work will be considered accepted. CLIENT certifies the acceptance by signing a Release Form. CLIENT agrees to sign and fax back the signed Release Form within 3 business days from notification.

21. Term.
This agreement is terminated upon the acceptance of the design work by the CLIENT, however the obligations of the CLIENT to pay as well as client’s obligations outlined in p. 10 and p. 19 above remain after the termination of this agreement. This agreement will not terminate if CLIENT has purchased maintenance plan. In this case the Agreement will remain in full force as long as CLIENT has his maintenance account current.

22. Payments.
CLIENT agrees to pay upfront for all “flat fee” services and upon receiving of invoice for all hourly bills.

23. Late Payment.
CLIENT agrees to pay additional late fee of 1.5% per month or the maximum permitted by the law of the past due amount.

24. No refunds.
PROVIDER will not refund collected fees unless such refund is explicitly authorized by this agreement.

25. No cancellations.
The nature of the design work is such that it can not be “returned”, therefore cancellation of work in progress is not permitted. The “work in progress” starts when Web Design Drive receives payment.

26. No solicitation.
CLIENT agrees not to approach PROVIDER's employees with proposals to hire them as his own employees or contractors. If CLIENT were to hire any of PROVIDER's employees, CLIENT agrees to pay PROVIDER for each employee thus hired customary fees charged by top employment agencies plus 60% surcharge.

27. LIMITED LIABILITY.
PROVIDER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE PRODUCT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA, LOSS OF PRIVACY, DAMAGES TO THIRD PARTY EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIMS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE OR OTHERWISE. FURTHER, PROVIDER WILL NOT CENSOR ANY CONTENT ON THE INTERNET. IT WILL BE CLIENT'S RESPONSIBILITY FOR THE USAGE OF HIS CONTENT AND ANY CONSEQUENCES OF THIS USAGE.

28. Indemnification.
CLIENT shall indemnify, defend by counsel reasonably accepted by PROVIDER, protect and hold PROVIDER harmless from and against any and all claims, liabilities, losses, costs, damages, expenses, including consultants' and attorneys' fees and court costs, demands, causes of action, or judgments directly or indirectly arising out of or related to the web design and other services provided by PROVIDER to the CLIENT.

29. Entire Agreement.
This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings and agreements between the parties with respect to the subject matter hereof, all of which representations, communications, understandings and agreements are hereby canceled to the extent they are not specifically merged herein. The parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein.

30. Modification.
This Agreement shall not be modified, amended, canceled or in any way altered, nor may it be modified by custom and usage of trade or course of dealing, except by an instrument in writing and signed by both of the parties hereto.

31. Waiver.
Performance of any obligation required of a party hereunder may be waived only by written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. The waiver by either party hereto of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.

32. Severability.
If any provision of this Agreement shall be unlawful, void, or for any reason, unenforceable, it shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this Agreement, which shall remain valid and enforceable according to its terms.

33. Governing Law.
This Agreement was entered into in the State of North Carolina and its validity, construction, interpretation and legal effect shall be governed by the laws and judicial decisions of the State of North Carolina applicable to contracts entered into and performed entirely within the State of North Carolina.

34. Authority to Execute.
Each of the parties to this Agreement represents and warrants that it has full power to enter into this Agreement and that it hasn't assigned, encumbered, or in any manner transferred all or any portion of the claims covered by this Agreement.

35. Benefit of Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of each of the parties hereto, and except as otherwise provided herein, their respective legal successors and permitted assigns.

36. Cumulative Remedies.
Except as specifically provided herein, no remedy made available to either party hereunder is intended to be exclusive of any other remedy provided hereunder or available at law or in equity.

37. No Partnership or Agency.
Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment relationship, franchise relationship or taxable entity between the parties, nor shall either party have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other party hereto, it being understood that the parties are independent contractors vis-à-vis one another.

38. No Third Party Beneficiaries.
Nothing contained in this Agreement, express or implied, shall be deemed to confer any rights or remedies upon, nor obligate any of the parties hereto, to any person or entity other than such parties, unless so stated to the contrary.

39. Excused Performances.
PROVIDER shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Services, resulting directly or indirectly from acts of God, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes and disturbances, fire, transportation contingencies, shortages of facilities, fuel, energy, labor or materials, or laws, regulations, acts or order of any government agency or official thereof, other catastrophes, or any other circumstances beyond PROVIDER's reasonable control. In the event of any such delay or failure, performance of the Services shall be deferred to a date and time mutually agreeable by the parties.

40. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

41. Captions.
The section headings and captions contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement.

42. Gender.
Where the context so requires, the masculine gender shall include the feminine or neuter, and the singular shall include the plural and the plural the singular.

43. Recitals.
The recitals above set forth are incorporated herein by reference.

44. Arbitration.
Any dispute arising under this agreement shall be resolved by binding arbitration in the city of Charlotte, North Carolina and under the rules of the American Arbitration Association.