Effective September 22, 2022

These Website Development, Hosting and Consulting Service Terms ("Terms") apply to services provided by WebCreate.com, LLC ("WebCreate.com," "WebCreate," "we," or "us") to an individual, business, nonprofit organization, governmental entity, or other customer ("Client").

These Terms apply to website development, website maintenance, consulting, technical support, website hosting, email services, data hosting, domain and DNS management, software configuration, security services, accessibility work, third-party service administration, and other technology-related services provided by WebCreate.com.

1. Acceptance of These Terms

A Client accepts these Terms by approving an estimate or proposal, signing a service agreement, submitting the WebCreate.com Terms acceptance form, authorizing work by email or other written communication, paying a deposit or invoice for services referencing these Terms, or otherwise engaging WebCreate.com to perform services after receiving notice of these Terms.

Specific estimates, proposals, work orders, service agreements, or written project authorizations may contain additional terms. If a specific written agreement conflicts with these general Terms, the specific written agreement controls with respect to that project or service.

Material changes to these Terms will not be applied retroactively to completed work. WebCreate.com may require existing Clients to affirmatively accept updated Terms before new projects, substantial new work, or continued proprietary consulting services are provided.

2. Definitions

Agreement: These Terms together with applicable estimates, proposals, work orders, service agreements, amendments, and other written project authorizations.

Client Content: Text, photographs, graphics, video, data, software, documents, trademarks, logos, and other materials supplied by or on behalf of the Client.

Client-Owned Deliverables: Final custom work specifically created for and delivered to the Client under an applicable project agreement and paid for in full, except for WebCreate Properties and third-party materials.

WebCreate Properties: WebCreate.com's pre-existing or independently developed tools, methodologies, libraries, templates, scripts, utilities, development techniques, processes, diagnostic methods, internal documentation, know-how, reusable code, and other proprietary materials.

Work Product: Services and deliverables created or provided by WebCreate.com under an applicable project agreement.

3. Estimates, Scope and Changes

WebCreate.com will perform the services described in the applicable estimate, proposal, service agreement, or other written authorization.

Estimates are based on information reasonably available when the estimate is prepared. Work outside the stated scope may result in additional charges.

If WebCreate.com identifies work that is materially outside the approved scope, WebCreate.com will normally notify the Client before performing the additional work unless immediate action is reasonably necessary to protect the security, integrity, or availability of a system.

Changes in requirements, Client-provided materials, third-party systems, software versions, APIs, hosting environments, or other circumstances outside WebCreate.com's control may affect the cost or delivery schedule.

4. Payment Terms

Unless otherwise stated in writing:

  • Invoices are due within 10 calendar days of the invoice date.
  • Typical development projects may require a 50% deposit and the balance at an agreed milestone or completion.
  • Larger projects may use a 50% deposit, 30% milestone payment, and 20% final payment schedule.
  • Past-due balances may accrue interest at 1.5% per month or the maximum amount permitted by applicable law, whichever is less.
  • WebCreate.com may require advance payment or a retainer from Clients with a history of late payments.
  • The Client is responsible for approved third-party expenses and other costs incurred specifically for the Client's project.
  • Questions or good-faith disputes concerning an invoice should be raised promptly. The undisputed portion of an invoice remains payable when due.

Credit Card Payments

Where permitted by applicable law and payment-network rules, WebCreate.com may impose a processing surcharge on payments made by credit or charge card.

Any surcharge will not exceed the lesser of WebCreate.com's applicable cost of accepting the card, the amount permitted by applicable law, or the amount permitted by the applicable payment network.

WebCreate.com does not impose a credit-card processing surcharge on payment by cash, check, ACH or EFT when those payment methods are available, or on debit-card transactions where such a surcharge is prohibited.

Required surcharge disclosures will be provided before payment and the surcharge will be separately identified where required.

5. Client Cooperation and Project Delays

The Client agrees to provide information, content, approvals, access credentials, decisions, and other materials reasonably necessary for WebCreate.com to perform the work.

If Client action or inaction prevents work from proceeding for more than five business days, WebCreate.com may:

  • adjust the project schedule;
  • reassign personnel or resources;
  • invoice work already performed;
  • place the project on hold; or
  • treat the affected phase as completed when appropriate.

A project placed on hold may require rescheduling based on WebCreate.com's availability.

6. Client Materials and Content

The Client is responsible for the accuracy, legality, reliability, and completeness of Client Content.

The Client represents that it owns, licenses, or otherwise has permission to use and provide all Client Content supplied to WebCreate.com.

Unless expressly agreed otherwise, WebCreate.com may assume materials supplied by the Client are copies and that the Client maintains appropriate originals and backups.

If Client-provided materials are defective, incomplete, incompatible, corrupted, inaccurate, or require substantial additional work, the additional work may be billable.

7. Website Security and Software Maintenance

Websites using Drupal, WordPress, Joomla, e-commerce systems, plugins, modules, operating systems, libraries, APIs, and other software require ongoing maintenance and security updates.

If WebCreate.com determines that outdated or vulnerable software creates a material security risk, WebCreate.com may recommend or require remediation.

If the Client declines necessary remediation and the website presents a reasonable risk to WebCreate.com systems, hosting infrastructure, other Clients, or third parties, WebCreate.com may restrict or suspend the affected service until the risk is corrected.

Immediate suspension may occur when reasonably necessary to contain malware, unauthorized access, spam, abuse, data exposure, or another active security incident.

Security services reduce risk but cannot guarantee that any website, server, account, software application, or network will never be compromised.

8. Credentials and Account Security

The Client is responsible for protecting credentials issued to or controlled by the Client and for promptly notifying WebCreate.com of suspected unauthorized access.

WebCreate.com may require strong passwords, multifactor authentication, restricted administrator access, or other reasonable security measures.

The Client should not send passwords or other sensitive credentials through insecure channels when a secure method is available.

9. Third-Party Services

WebCreate.com may configure or administer services provided by third parties, including hosting companies, domain registrars, content delivery networks, analytics providers, payment processors, email providers, cloud platforms, mapping services, security services, software vendors, and API providers.

WebCreate.com does not control third-party services and cannot guarantee their continued availability, pricing, features, security, policies, or compatibility.

Third-party changes that require WebCreate.com to modify, repair, migrate, or replace an integration may result in additional billable work.

The Client remains responsible for third-party fees unless otherwise agreed.

10. Ownership of Websites and Deliverables

The Client retains ownership of Client Content.

Upon full payment of all amounts due for a project, the Client owns the Client-Owned Deliverables specifically created for that project, subject to the exclusions described below.

WebCreate.com retains ownership of WebCreate Properties, including its pre-existing and reusable tools, methodologies, development techniques, libraries, utilities, internal systems, diagnostic processes, templates, know-how, and other materials not uniquely created as a Client-Owned Deliverable.

To the extent WebCreate Properties are incorporated into a Client-Owned Deliverable and are necessary for normal operation of the Client's website, WebCreate.com grants the Client a perpetual license to use those components as part of that website.

Third-party software, open-source software, fonts, stock media, plugins, modules, libraries, and other licensed materials remain subject to their respective licenses.

Freedom to Move the Website

Except where restricted by a third-party license or unpaid account balance, the Client may move its website to another hosting provider and may engage another service provider to maintain or modify Client-Owned Deliverables.

WebCreate.com does not require a Client to continue using WebCreate.com hosting or development services in order to use a fully paid Client-Owned Deliverable.

This right does not transfer ownership of WebCreate.com's proprietary consulting materials, internal documentation, methodologies, diagnostic information, or other WebCreate Properties.

11. Confidentiality and Proprietary Technical Information

WebCreate.com and the Client may receive nonpublic information from one another during the course of their relationship.

Each party agrees to use reasonable care to protect confidential information received from the other party and to use such information only for purposes reasonably related to the services being provided.

WebCreate.com Confidential and Proprietary Information

WebCreate.com's confidential and proprietary information may include, without limitation:

  • technical assessments and diagnostic findings;
  • technical recommendations and proposed solutions;
  • website and system architecture information developed by WebCreate.com;
  • nonpublic configuration information;
  • security assessments and remediation methods;
  • development techniques and methodologies;
  • internal procedures and workflows;
  • proprietary scripts, tools, utilities, and code;
  • internal technical documentation;
  • project analysis and research;
  • proposals, pricing methods, and nonpublic business information;
  • troubleshooting methods;
  • development notes and technical correspondence; and
  • other information that a reasonable person would understand to be confidential or proprietary based on its nature or the circumstances in which it was provided.

Technical assessments, recommendations, configuration analysis, development information, and similar materials are supplied for the Client's internal business use in connection with services provided by WebCreate.com.

The Client may share such information with its employees, officers, or authorized representatives who reasonably need the information for the Client's business and who are expected to maintain its confidentiality.

The Client may not provide WebCreate.com's confidential or proprietary technical information to another developer, consultant, technology vendor, agency, service provider, or other commercial entity for that party's reuse, evaluation, commercial benefit, competitive use, or implementation outside the authorized purpose without WebCreate.com's prior written permission. 

Successor Providers and Website Transfers

Nothing in this confidentiality provision prevents the Client from providing a successor provider with Client-Owned Deliverables or with credentials, files, documentation, and operational information reasonably necessary to host, maintain, or migrate the Client's website.

WebCreate.com may prepare appropriate transition documentation or identify which information may be provided to a successor provider.

WebCreate.com's internal diagnostic materials, proprietary assessments, methodologies, internal correspondence, research, or consulting work are not automatically included in a website transfer unless WebCreate.com expressly authorizes their release.

Third-Party Disclosure Requests

If a Client needs to disclose WebCreate.com proprietary information to an outside consultant or vendor, the Client should request permission before disclosure.

WebCreate.com may:

  • approve the disclosure;
  • provide a limited or sanitized version of the information;
  • require the third party to sign an appropriate confidentiality or nondisclosure agreement; or
  • prepare separate transition documentation suitable for disclosure.

WebCreate.com will not unreasonably prevent a Client from obtaining information genuinely necessary to operate or transfer the Client's website.

Clients Who Do Not Accept Confidentiality Requirements

Protection of proprietary technical information is a material condition of WebCreate.com's consulting and development services. 

If a Client is unwilling to accept these confidentiality requirements, WebCreate.com is not required to provide proprietary technical assessments, architecture analysis, detailed diagnostic findings, configuration documentation, consulting recommendations, internal development information, or other confidential technical materials.

In that circumstance, WebCreate.com may, depending on the services involved:

  1. require a separate confidentiality or nondisclosure agreement;
  2. limit the engagement to services that do not require disclosure of proprietary information;
  3. provide only information reasonably necessary for website operation or transition;
  4. decline additional consulting or development work; or
  5. terminate the affected ongoing services upon the notice provided under these Terms.

A Client's refusal to accept confidentiality requirements does not entitle the Client to proprietary WebCreate.com materials.

Unauthorized Disclosure

Unauthorized disclosure or use of confidential or proprietary information may constitute a material breach of this Agreement.

When WebCreate.com reasonably believes that an unauthorized disclosure has occurred or is likely to occur, WebCreate.com may:

  • stop providing additional confidential information;
  • suspend the affected consulting or development work;
  • request the return or deletion of confidential materials;
  • require written confirmation that improperly disclosed materials have been deleted or returned; and
  • exercise its termination rights under this Agreement.

WebCreate.com may also pursue injunctive relief, actual damages, or other remedies available under applicable law.

The confidentiality obligations in this section survive termination of the Agreement for five years. Information qualifying as a trade secret remains protected for as long as it continues to qualify for protection under applicable law.

Confidential information does not include information that is publicly available without breach of this Agreement, was lawfully known to the receiving party without a confidentiality obligation, was independently developed without use of the confidential information, or was lawfully received from a third party without a confidentiality obligation.

A party may disclose confidential information when legally required to do so, provided that notice is given to the other party when legally permitted.

12. Client Confidentiality

WebCreate.com will treat nonpublic Client Content, credentials, business information, and other information reasonably identified as confidential with appropriate care.

WebCreate.com may provide necessary information to employees, contractors, hosting providers, software providers, and other service providers when reasonably required to perform the Client's services, subject to appropriate confidentiality and security practices.

13. Website Accessibility and Legal Compliance

Unless specifically included in the scope of work, WebCreate.com does not provide legal advice and does not determine whether a Client's website satisfies every law, regulation, industry standard, licensing requirement, privacy requirement, or accessibility obligation applicable to the Client.

WebCreate.com may perform accessibility-related development and testing when requested. Because accessibility requirements, content, third-party components, browsers, assistive technologies, and legal standards change over time, no website can be guaranteed to remain compliant without ongoing review and maintenance.

The Client is responsible for determining its legal and regulatory obligations.

14. Backups and Data

WebCreate.com may provide backups as part of certain hosting or maintenance services, but backups are not a substitute for the Client retaining copies of important business data and original materials.

Unless expressly stated otherwise, WebCreate.com does not guarantee indefinite retention of deleted accounts, terminated websites, backups, email, files, or other data.

15. Suspension of Services

WebCreate.com may temporarily suspend an affected service when reasonably necessary because of:

  • an active security threat;
  • malware, spam, abuse, or unlawful use;
  • risk to shared infrastructure or other customers;
  • unauthorized system access;
  • material violation of these Terms;
  • failure to cooperate with necessary security remediation; or
  • nonpayment as described below.

Where practical, WebCreate.com will notify the Client before suspension. Emergency security action may occur without advance notice.

16. Term and Termination

Termination Without Cause

Either party may terminate an ongoing hosting, maintenance, consulting, or support relationship upon 30 days' written notice. For purposes of this provision, written notice includes notice sent by email to the other party's most recent business email address. A different notice period may apply if stated in a specific service agreement.

Material Breach

If either party materially breaches this Agreement, the other party may provide written notice describing the breach and allow 10 calendar days to correct it when the breach is reasonably capable of being corrected.

A breach involving active security threats, unlawful activity, deliberate misuse of systems, unauthorized disclosure of credentials, or unauthorized disclosure of confidential proprietary information may justify immediate suspension while the matter is investigated or corrected.

Project Cancellation

If a development project is cancelled, the Client remains responsible for:

  • work performed through the cancellation date;
  • approved third-party expenses;
  • nonrefundable commitments made specifically for the project; and
  • other amounts due under the applicable project agreement.

Unused prepaid amounts, if any, will be reconciled against amounts properly due.

17. Overdue Accounts

WebCreate.com may suspend or terminate services when an account is 20 or more days past due.

Before permanent termination for nonpayment, WebCreate.com will normally provide written notice and a reasonable opportunity to retrieve or transfer Client-owned assets.

Unless circumstances require otherwise, the Client will be provided at least 14 calendar days from a termination notice to retrieve or arrange transfer of Client-owned website files and other transferable assets.

WebCreate.com may charge its normal support rate for work required to export, package, migrate, configure, or transfer services.

Accounts 30 or more days overdue may be referred for collection.

The Client remains responsible for amounts properly due through the termination date.

18. Transition to Another Provider

Upon request and payment of outstanding amounts, WebCreate.com will provide reasonable access to Client-owned and transferable assets in WebCreate.com's possession.

Transition assistance, website migration, server migration, DNS changes, data exports, documentation preparation, meetings with successor providers, or other technical assistance may be billed at WebCreate.com's then-current support rate unless included in another agreement.

WebCreate.com is not required to transfer proprietary WebCreate Properties, internal notes, internal tools, internal correspondence, or proprietary technical assessments as part of a transition.

19. Disclaimer of Warranties

Except for warranties expressly stated in a written agreement, services are provided on an "as is" and "as available" basis.

WebCreate.com does not guarantee uninterrupted operation, complete security, specific search-engine rankings, specific traffic levels, business revenue, sales results, third-party service availability, or compatibility with future third-party changes.

To the extent permitted by law, WebCreate.com disclaims implied warranties including merchantability and fitness for a particular purpose.

20. Limitation of Liability

To the maximum extent permitted by applicable law, WebCreate.com will not be liable for indirect, incidental, special, consequential, exemplary, or punitive damages, including lost profits, lost revenue, lost business opportunities, loss of goodwill, or loss arising from interruption of business.

Except where prohibited by law or expressly agreed otherwise in writing, WebCreate.com's aggregate liability arising from a particular service or project will not exceed the fees paid to WebCreate.com for the affected service during the 12 months preceding the event giving rise to the claim.

Nothing in this section limits liability that cannot legally be limited.

21. Indemnification

The Client agrees to defend, indemnify, and hold harmless WebCreate.com, its employees, contractors, and agents from third-party claims arising from:

  • Client Content supplied or published by the Client;
  • the Client's violation of applicable law;
  • infringement caused by materials supplied by the Client;
  • unauthorized or unlawful use of the Client's website or services by the Client; or
  • the Client's material violation of these Terms.

WebCreate.com will promptly notify the Client of a covered claim and reasonably cooperate in the defense.

22. Events Beyond Reasonable Control

Neither party will be liable for a failure or delay caused by circumstances reasonably beyond its control, including widespread Internet outages, utility failures, natural disasters, acts of government, war, civil disorder, labor disruptions, major third-party service failures, cyberattacks not caused by that party's negligence, or similar events.

The affected party will make reasonable efforts to resume performance.

23. Governing Law

These Terms and agreements incorporating them are governed by the laws of the State of Colorado, without regard to conflict-of-law principles.

Unless otherwise required by applicable law or agreed in writing, legal proceedings arising from these Terms will be brought in a court of competent jurisdiction located in Mesa County, Colorado.

24. Notices and Electronic Communications

The parties agree that ordinary project approvals, estimates, notices, authorizations, and other business communications may be transmitted electronically.

Formal notices under this Agreement may be sent by email to the most recent business contact address supplied by the receiving party unless a specific agreement requires another method.

Each party is responsible for maintaining current contact information.

25. Changes to These Terms

WebCreate.com may update these Terms as its services, technology, business practices, or legal requirements change.

The effective date will be displayed at the beginning of these Terms.

For ongoing services, WebCreate.com will provide reasonable notice of material changes. WebCreate.com may require affirmative acceptance of materially revised Terms before continuing or expanding services.

26. Entire Agreement and Severability

These Terms, together with the applicable estimate, proposal, work order, service agreement, or other written authorization, constitute the agreement between WebCreate.com and the Client concerning the services covered by them.

If any provision is determined to be unenforceable, the remaining provisions remain in effect to the maximum extent permitted by law.

Failure to enforce a provision on one occasion does not waive the right to enforce it later.

27. Survival

Payment obligations, ownership provisions, confidentiality obligations, indemnification obligations, limitations of liability, and other provisions that by their nature should continue will survive termination of the Agreement.