Last Updated: July 22, 2016

Below are WebCreate.com, LLC (throughout this document will be referred to as WebCreate.com) standard terms and conditions of service. It is vital that you (The Client) please take time to read through thoroughly and ensure you fully understand these terms and conditions and their implications before you commence any project with WebCreate.com. Please also note that from time to time WebCreate.com may need to alter these terms and conditions without notice. Please contact us if you do not understand any of the terms and conditions in this document.

Commencement of Work

Agreement to work with, and submission of a payment of deposit to WebCreate.com constitutes agreement to these terms and conditions.

Payment Terms

"The Client" agrees to pay a 50% deposit of the quoted amount to commence any design project, with the balance payable on delivery. Once research, resources allocated or website development work has commenced on a project, this deposit is non-refundable. In the case of a change of mind by "The Client" this deposit is non-refundable. WebCreate.com endeavours to provide services that meet and exceed a client's needs and expectations, but in the event of a "change of mind" (after a project has commenced) by "The Client", the initial 50% deposit is forfeited, plus a prorata payment based upon the time spent.

If the work time exceeds 4 calendar weeks in duration, the Client agrees to a progress payment of 50% of the balance per month until the conclusion of the project, with any outstanding amount payable in full upon delivery.

Project Samples

"The Client" agrees to allow WebCreate.com to showcase any/all work created in the course of a project as part of WebCreate.com portfolio. WebCreate.com acknowledges the confidential nature of projects and agrees to only display project work once product/site has been publicly launched/commences.

Force Majeure

WebCreate.com shall not be liable for any failure or delay in supply or delivery of products/services where such failure or delay is wholly or partly due to any cause or circumstances whatsoever outside the reasonable control of WebCreate.com. Including but not limited to war, natural disasters, strikes, lockouts, industrial disputes or unrest, government restrictions or transport delays, fire, power outages, failure attributable to hosting suppliers, theft, vandalism, riots, civil commotions, accidents of any kind or act of terrorism.

Term and Termination

The project may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:

  • becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
  • breaches any of its material responsibilities or obligations under the Service Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.

In the event of termination, WebCreate.com shall be compensated for the services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Website Developer or Website Developer’s agents as of the date of termination, whichever is greater; and Client shall pay all expenses, fees, out of pockets together with any additional costs incurred through and up to, the date of cancellation.

Upon expiration or termination of the Service Agreement: (a) each party shall return or, at the disclosing party's request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under the Service Agreement, exclusive of the services, shall survive.

Fees for Service

It is agreed that the fee for service shall be the cost estimates provided via email or regular mail, unless work undertaken exceeds work outlined. If work undertaken exceeds the items specified in the quote, "The Client" agrees to pay appropriate fees for the additional work, outside the scope of the original agreement. The client will be notified of increases in the scope of the project.

In case of work stoppage of 15 or more days due to content materials not being available for website development, WebCreate.com will bill the Client for the actual work performed up to the stopping point within 15 days from that stopping point. If there is excessive review iterations of the website that is caused by the Client, or that if inadequate time is provided by the Client for updates much beyond what is reasonable and in the scope of work then this could be used as grounds for a change order and extra cost.

Should additional work not initially quoted for be requested during the development process, a progress payment will be payable prior to further work being carried out. Otherwise, all additional costs will be added to the final invoice.

Any advance fees, delivery fees, project commencement fees, or progress payments are non-refundable once work has commenced if the Service Agreement is terminated by the client, after work has commenced.

Client's Responsibility for the Accuracy and Reliability of Provided Materials

When a Client provides information, data, software, images, custom programming, specifications and project materials to WebCreate.com, the Client is solely responsible for those items. WebCreate.com will assume that the items provided are only copies of the originals. In the event of data loss, software corruption, unrecoverable information, or hardware failure, the Client will be solely responsible for providing new copies of the item(s) to WebCreate.com.

If items provided to WebCreate.com do not function correctly, require additional research to make them functional, or add extra billable hours to a project, the Client will be responsible for the hourly costs incurred in addition to the quoted project price. WebCreate.com will always notify the Client in writing and wait for the Client's approval prior to performing work outside the scope of the original contract/quote.

If the Client decides not to correct the issues presented by WebCreate.com within three business days, the project delivery dates may be changed, or the project may be cancelled under the terms of the cancellation policy listed above.

Content Provided by the Client to WebCreate.com

As our Client you may submit video, illustrations, photographic, and textual content, which are collectively referred to as Client Content. Whether or not such Client Content is published, WebCreate.com guarantees confidentiality with respect to any Client Content.

The Client be solely responsible for Client-supplied Content and the consequences of posting or publishing them. In connection with Client Content, Client affirms, represents, and/or warrants that: Client owns or have the necessary licenses, rights, consents, and permissions to use and authorize WebCreate.com to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Client Content to enable inclusion and use of the Client Content in the manner contemplated by the website and these Terms and Conditions of Service.

In connection with Client Content, Client further agrees not to submit material that is copyrighted, protected by trade secret, or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant WebCreate.com all of the license rights granted herein.

The Client agrees to defend, indemnify and hold harmless WebCreate.com, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) Client's use of and access to the web site produced and/or managed by Web Developer; (ii) Client's violation of any term of these Terms and Conditions of Service; (iii) Client's violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of Client Content caused damage to a third party. This defense and indemnification obligation will survive these Terms and Conditions of Service and your use of the web site produced and/or hosted by WebCreate.com.

Client's Responsibility for the Accuracy and Reliability of Provided Materials

When a Client provides information, data, software, images, custom programming, etc. to WebCreate.com, the Client is solely responsible for those items. WebCreate.com will assume that the items provided are only copies of the originals. In the event of data loss, software corruption, unrecoverable information, or hardware failure, the Client will be solely responsible for providing new copies of the item(s) to WebCreate.com.

If items provided to Developer do not function correctly, require additional research to make them functional, or add extra billable hours to a project, the Client will be responsible for the hourly costs incurred in addition to the quoted project price. WebCreate.com will always notify the Client in writing and wait for the Client’s approval prior to performing work outside the scope of the Service Agreement or a quote.

If the Client decides not to correct the issues presented by WebCreate.com within 3 business days, the project delivery dates may be changed, or the project may be cancelled under the terms of the cancellation policy listed above.

Content Provided by the Client to WebCreate.com or Content Published by the Client Directly on the Websites Hosted and/or Managed by WebCreate.com

Client may submit video, illustrations, photographic and textual content, which are collectively referred to as Client Content. Whether or not such Client Content is published, WebCreate.com guarantees confidentiality with respect to any Client Content.

Client shall be solely responsible for your own Client Content and the consequences of posting or publishing them. In connection with Client Content, Client affirms, represents, and/or warrants that: The Client owns or has the necessary licenses, rights, consents, and permissions to use and authorizes WebCreate.com to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Client Content to enable inclusion and use of the Client Content in the manner contemplated by the website and these Terms of Service.

In connection with Client Content, Client further agrees not to submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless the Client is the owner of such rights or has permission from their rightful owner to post the material and to grant WebCreate.com all of the license rights granted herein.

Client agrees to defend, indemnify and hold harmless WebCreate.com, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) Cl;ient's use of and access to the web site produced and/or managed by WebCreate.com; (ii) Client's violation of any term of these Terms of Service; (iii) Client's violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of Client's Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and Client's use of the website produced and/or hosted by Web WebCreate.com.

Term and Termination

The Service Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.

The Service Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:

  • becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
  • breaches any of its material responsibilities or obligations under the Service Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.

In the event of termination, WebCreate.com shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by WebCreate.com or WebCreate.com’s agents as of the date of termination, whichever is greater; and Client shall pay all expenses, fees, out of pockets together with any additional costs incurred through and up to, the date of cancellation.

Upon expiration or termination of the Service Agreement: (a) each party shall return or, at the disclosing party's request, destroy the confidential information of the other party, and (b) other than as provided herein, all rights and obligations of each party under the Service Agreement, exclusive of the services, shall survive.

Limitations of Liability

IN NO EVENT SHALL WEBCREATE.COM, LLC BE LIABLE TO CLIENT, USERS OR TO ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR NONCONTRACTUAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SERVICES, . WEBCREATE.COM, LLC’S LIABILITY, IF ANY, TO CLIENT OR TO ANY THIRD PARTY HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL AFTER TAX PROFITS EARNED BY WEBCREATE.COM, LLC UNDER THIS AGREEMENT IN THE LAST TWELVE MONTHS. THE PARTIES ACKNOWLEDGE THAT WEBCREATE.COM, LLC HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

IN NO EVENT SHALL WEBCREATE.COM, LLC BE LIABLE FOR FAILURE OR DELAY IN PERFORMING ITS OBLIGATIONS HEREUNDER IF SUCH FAILURE OR DELAY IS DUE TO CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF ANY GOVERNMENTAL BODY, WAR, INSURRECTION, SABOTAGE, EMBARGO, FIRE, FLOOD, STRIKE OR OTHER LABOR DISTURBANCE, INTERRUPTION OF OR DELAY IN TRANSPORTATION, UNAVAILABILITY OF OR DELAY IN TELECOMMUNICATIONS OR THIRD PARTY SERVICES, FAILURE OF THIRD PARTY SOFTWARE OR INABILITY TO OBTAIN RAW MATERIALS, SUPPLIES, OR POWER USED IN OR EQUIPMENT NEEDED FOR PROVISION OF THE SERVICES.

Governing Law and Dispute Resolution

The formation, construction, performance and enforcement of the Service Agreement shall be in accordance with the laws of the United States and the state of Colorado without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys' fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Colorado. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that WebCreate.com will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that WebCreate.com shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.