Hostway Worldwide  

ReadyWeb Terms

All services related to Hostway Web Design Services (“Design Services”) are provided to you, the user, together with any company or other business entity you are representing, if any, (collectively, "You") pursuant to the terms and conditions of the Hostway Terms of Use (“Hostway TOU”) (located at http://www.hostway.com/legal/terms_of_use.html) between You and Hostway Corporation ("Hostway"). The terms and conditions of this Design Services Policy (“Design Terms”) are in addition to and incorporated as part of the Hostway TOU.

You agree to be bound by the Design Terms, any amendments to these Design Terms, and to such terms and conditions as are incorporated herein by reference. All amended terms shall automatically be effective thirty (30) days after they are initially posted on the Hostway site.

1. Design and Update Services

The Design Services consists of a template based website built in accordance with the information provided by You and includes an online form. eCommerce shopping cart is excluded. Design Services does not include any customized website design services that may be requested by You in the written submittal form or via subsequent telephone interviews. If You sign-up for Design Services, Hostway will provide You with the services as outlined below.

(a) Description of Design Services. You understand and agree that Hostway will design the website solely in accordance with the information provided by You during the discovery / intake phase. After Hostway receives all complete information from You, Hostway will deliver a mock-up site for your review prior to the site entering the development phase. The mock-up will give you the opportunity to ensure the site meets the template specifications. Once the mock-up is approved by You, development will begin. Delivery time may vary depending on business conditions, however you will be given an accurate completion date at the time of sale. You understand that no design activity will begin until all content (i.e. web site copy, photos, etc.) has been provided by You and such content has been received by the Hostway design team. The website will be made available for You to view prior to hosting for purposes of editing for corrections to content only. Editing beyond correction of content will be considered as additional services subject to additional fees or part of the hourly update service (if selected by You) and will be billed as such. You understand that any such additional services may affect the delivery time. Upon completion, Hostway will attempt to contact You via the contact information You last provide to Hostway to notify You that the site is ready to publish. In the event that You do not respond within five (5) business days, the site shall be deemed "accepted" by You and Hostway will deem the service engagement completed (together, the "Design Services").

(b) Additional Pages. Additional pages may be added to Your template site design for an additional, per-page set fee. You understand and agree that Hostway will provide additional pages in accordance with the information provided by You in the submittal form sent via email and in subsequent telephone interviews. The website modifications will be made available for You to view prior to hosting for purposes of editing for corrections to content only. Editing beyond correction of content will be considered as additional services and will be billed as such. You understand that any such additional services may affect the delivery time. Hostway will attempt to contact You to notify You that the additional pages are completed, and ready to publish. In the event that You do not respond within five (5) business days, the pages shall be deemed "accepted" by You and Hostway will deem the service engagement completed (together, the "Additional Pages").

(c) Hourly Updates. The Hourly Updates service provides You with website design services on an hourly basis. You understand and agree that Hostway will make changes and updates to Your site in accordance with the information provided by You in the submittal form sent via email and in subsequent telephone interviews. The website modifications will be made available for You to view prior to hosting for purposes of editing for corrections to content only. Editing beyond correction of content will be considered as additional services and will be billed as such. Furthermore, You understand that any such additional services may affect the delivery time. Hostway will attempt to contact You to notify You that the updates are complete, and ready to publish. In the event that You do not respond within five (5) business days, the updates shall be deemed "accepted" by You and Hostway will deem the service engagement completed (together, the "Hourly Updates").

2. Your Responsibilities

You acknowledge and agree that:

a. The setup and other fees applicable to the Design Services, Additional Pages and Hourly Updates are non-refundable once development work has commenced. It is the customer's sole responsibility to ensure that Hostway receives all necessary content before design work begins. No design work will be initiated until all required content is on hand.

b. You must send content and graphic images to the designer in electronic format. Fax copies and handwritten or typed hardcopy letters cannot be received.

c. Web page development commences once Your written submittal form is submitted via email including Your Content (defined below).

d. Once You receive a beta store from the designer, You have five (5) business days to respond with approval or revisions. Upon approval, or if there is no response from You within 5 business days, the site shall be deemed "accepted" by You and Hostway will deem the service engagement completed.

e. If You have revisions to the beta website, the designer will complete the revisions and send You a final proof of the store. You will be given an additional 5 business days to approve or make final alterations before the site shall be deemed "accepted" by You and Hostway will deem the service engagement completed.

f. YOU ARE RESPONSIBLE FOR THE ACCURACY AND APPROPRIATENESS OF ALL DATA AND CONTENT WITHIN YOUR SITE, INCLUDING ACCURATE SPELLING AND GRAMMAR. HOSTWAY WILL NOT BE HELD RESPONSIBLE FOR INACCURATE INFORMATION AND ANY POTENTIAL DAMAGES CAUSED BY SUCH INACCURACIES.

g. You understand that the Hostway design team will not maintain copies of files or documents that are sent by You, and that You are solely responsible for backing up this data.

h. Hostway retains all ownership and proprietary rights in all source codes developed by Hostway. For source codes, or portions thereof, provided by You, Hostway reserves the right to retain possession of such source codes until full payment has been received for services rendered under this Agreement.

i. You understand and agree that Hostway’s performance under these Design Terms may be dependent upon Your timely and satisfactory performance of Your responsibilities. In the event that Hostway is unable to perform or is delayed in performing its responsibilities under these Design Terms as a result of Your delay or failure to perform Your responsibilities, the parties will discuss, mutually agree to and document, in a change order, any modified roles and/or fees associated with such delay or failure.

3. Fees

All Fees will be automatically charged to Your account in accordance with the current pricing schedule. Hostway may alter its fees at any time, but will provide notice to You via email. All payments for the Design Services, Additional Pages and Hourly Updates are non-refundable and may not be credited back.

4. Rights and Licenses

(a) Right to Web site. With the exception of any Third-Party Materials and Background Technology as defined in this Section 4, and subject to Section 2(h) of these Design Terms, You own the website and Your Content.

(i) "Your Content" means all content or information (including, without limitation, any text, music, sound, photographs, video, graphics, data, or software), in any medium, provided by You to Hostway.

(ii) "Third-Party Materials" means any content, software, or other computer programming material that is owned by an entity other than Hostway, and licensed by Hostway or generally available to the public, including You, under published licensing terms, and that Hostway will use in the development of or to display or run a website. The graphics utilized from Hostway’s graphics library are licensed from third-party suppliers. Hostway provides You a limited, personal, nonexclusive, nontransferable license to use the graphics during the term of this Agreement.

(iii) "Background Technology" means computer programming/formatting code or operating instructions developed by or for Hostway and used to create any portion of a website or used to operate the website or a Web server in connection with a website. Background Technology includes, but is not limited to, any files necessary to make forms, buttons, checkboxes, and similar functions and underlying technology or components, such as style sheets, website templates, animation templates, interface programs that link multimedia and other programs, customized graphics manipulation engines, and menu utilities, whether in database form, dynamically driven, or provided in any other format. Background Technology does not include any of Your Content or any derivatives, improvements, or modifications of Your Content.

(b) Limited License to Background Technology. Subject to the terms and conditions of this Agreement, Hostway hereby grants You a nonexclusive, revocable, limited license to copy, distribute, transmit, display and perform the Background Technology that is incorporated into a website, in whole or in part, solely as necessary for You to operate, maintain, and make the website available in the normal course of Your business. You may not duplicate or distribute any Background Technology to any third party without the prior written consent of Hostway. All rights to the Background Technology not expressly granted to You hereunder are retained by Hostway. Without limiting the foregoing, You agree not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of the Background Technology, except as allowed by law.

(c) Limited License to Content. You hereby grant to Hostway the nonexclusive, royalty-free, worldwide right and license to copy, distribute, transmit, display, perform, create derivative works from, modify, and otherwise use and exploit the Web site, any of Your Content, or any of Your marks provided to Hostway hereunder, solely for the purpose of rendering the Design Services, Additional Pages and Hourly Updates under this Agreement. Such limited right and license shall extend to no other materials or for any other purpose and will terminate automatically upon termination of this Agreement for any reason.

(d) Mutual License for Marketing Purposes. Subject to the limitations in these Design Terms and the Hostway TOU, You and Hostway both grant to the other the nonexclusive, royalty-free, worldwide, revocable license to use the other’s names, logos, service marks, domain names, and Web sites including Web site content, solely in conjunction with the marketing or advertising of the Design Services. Each party at all times retains the sole and exclusive right, title, interest and ownership in and to all of its own intellectual property.

5. Content Standards

You covenant that Your Content shall not:

(i) be false, inaccurate or misleading;

(ii) infringe or misappropriate any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;

(iii) violate any law, statute, ordinance or regulation (including, but not limited to, those governing privacy, publicity, export control, consumer protection, unfair competition, antidiscrimination or false advertising);

(iv) be defamatory, trade libelous, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;

(v) be obscene or contain child pornography;

(vi) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;

(vii) link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance or regulation, or that violate Hostway Prohibited and Restricted Items that is incorporated herein by reference and may be amended from time to time.

6. Disclaimer of Warranty, Indemnification and Limitation of Liability

In addition to the provisions in the Agreement, You agree to the following:

(a) Disclaimer of Warranty. HOSTWAY, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE THE DESIGN SERVICES, ADDITIONAL PAGES AND HOURLY UPDATES, ON AN "AS IS" BASIS AND EXPRESSLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE ARE EXCLUDED. HOSTWAY, ITS SUPPLIERS AND SERVICE PROVIDERS, DO NOT WARRANT THAT THE DESIGN SERVICES, ADDITIONAL PAGES, AND/OR HOURLY UPDATES WILL BE ERROR-FREE OR UNINTERRUPTED AND MAKE NO REPRESENTATIONS REGARDING UPTIME, USE, DATA SECURITY, ACCURACY AND RELIABILITY OF THEIR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 6 IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

(b) Limitation of Liability. IN NO EVENT SHALL HOSTWAY, ITS PARENT COMPANY, AFFILIATES, ITS SUPPLIERS, OR SERVICE PROVIDERS, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DESIGN SERVICES, ADDITIONAL PAGES OR HOURLY UPDATES (HOWEVER ARISING, INCLUDING NEGLIGENCE). UNDER NO CIRCUMSTANCES WILL THE CUMULATIVE LIABILITY OF HOSTWAY, ITS PARENT COMPANY, AFFILIATES, SUPPLIERS, AND SERVICES PROVIDERS (AND THE LIABILITY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS) TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE EXCEED THE GREATER OF (A) THE AMOUNT OF FEES PAID TO HOSTWAY FOR THE DESIGN SERVICES, ADDITIONAL PAGES AND / OR HOURLY UPDATES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE ACTION GIVING RISE TO THE LIABILITY FIRST AROSE, OR (B) ONE HUNDRED U.S. DOLLARS (U.S. $100), WHICHEVER IS LESSER.

(c) Indemnification. You agree to indemnify, defend, and hold harmless Hostway, it’s parent company, affiliates, suppliers, and service providers, and their officers, directors, agents, and employees from and against any and all losses, costs, liabilities or expenses (including without limitation reasonable attorneys' and expert witnesses' fees) incurred or arising from: (a) Your use of the Design Services, Additional Pages and/or Hourly Updates, (b) any breach of these Design Terms or the documents it incorporates by reference, or (c) any violation by You or users of services You offer through Your website, of any laws, regulations or rights of others, or (d) Your breach of Section 5 "Content Standards". The indemnity rights herein shall not be limited or offset by any contributory negligence by Hostway.

7. Term and Termination

(a) You may terminate the Design Services, Additional Pages or Hourly Updates at any time. For the Design Services, you are entitled to a 100% refund should you decide to terminate your project prior to entering the Pre-development phase. The Pre-development phase begins when an Account Manager has been assigned to your project, to begin working on your Design Services. You are entitled to a 50% refund should you decide to terminate your project at any time during the Pre-development phase, and before entering the Development phase. The Development phase begins when your project is assigned to our Web Development team. No refunds are available for the Design Services once the Development phase has begun.

(b) For Additional Pages and Hourly Updates services, there are no refunds once the work has been initiated.

(c) Termination of the Design Services, Additional Pages or Hourly Updates services does not terminate any other services, commitments and contracts you may have with Hostway. You must address your intention to terminate other services you may have with Hostway accordingly, and according to the Terms and Conditions and Policies associated with those services.

(d) Hostway may terminate this agreement upon seven (7) calendar days’ written notice for any reason. Without limitation, You expressly acknowledge and agree that in addition to this Section 7, the terms and conditions of the Hostway TOU also apply to Your use of the Design Services, Additional Pages and Hourly Updates.

(e) Hostway may, but has no duty to, immediately suspend or terminate Your use of the Design Services, Additional Pages or Hourly Updates and destroy any of Your Content in the event that Hostway, in its sole discretion, concludes that (i) You have engaged in illegal activities, in activities or sales that may damage the rights of Hostway or others, or (ii) have violated or threatened to violate these Design Terms, the terms of the Agreement or any other agreement You may have with Hostway. Any suspension or termination under this paragraph may take effect immediately. In the event that Hostway terminates Your Design Services, Additional Pages or Hourly Updates in connection with this paragraph, You will not be entitled to a refund or credit of any fees You have paid. Without limitation, You expressly acknowledge and agree that in addition to this Section 7, the terms and conditions in the Hostway TOU also apply to Your use of the Design Services, Additional Pages or Hourly Updates.

(d) Sections 2(g), 2(h) and Sections 4 through 7 will survive the termination or expiration of these Design Terms.