Article 1 Scope
Kletmek LLC offers Internet marketing, website development, website optimization services, and miscellaneous marketing services (hereinafter referred to as “SERVICES”).
The CLIENT has engaged Klemtek LLC to perform the SERVICES for the CLIENT pursuant to a Customer Order (“CO”), and by signing the CO has agreed to these Terms and Conditions.
From the date of engaging Klemtek LLC through the termination of the parties’ relationship, these Terms and Conditions (“Terms and Conditions”) and the terms of the CO shall govern all aspects of the parties’ relationship.
Article 2 Definitions and Interpretations
2.1 For the purposes of these Terms and Conditions, the following terms shall have the following meanings:
“Commencement Date” shall be the date client engages Klemtek LLC to perform the SERVICES.
“Related Services” shall mean any service provided by Klemtek LLC in relation to Internet marketing, including, but not limited to: domain registration, website hosting, graphics design, email campaigns, SEO, and newsletters.
“Website Development” will be websites that are developed using the open-source WordPress platform.
“Search Engine Optimization” shall mean the process of making changes to the code, design, and/or content of one or more website pages for the purposes of ranking more favorably in one or more internet search engines.
“Link Building” shall be the process of acquiring incoming hypertext links from other website pages in order to build traffic to the site.
“Directory” shall mean a website that contains pages of outgoing hypertext links that are organized into categories.
“Portal” shall mean a website that provides multiple services with the goal of becoming the main site for a wide variety of users. More specialized Portals are called “Vertical Portals” or “Vortals”
“Keyword(s)” also known as “Search Term(s)”) shall mean word(s) entered by the searcher into a search form. Other instructions can optionally be added to keywords in some engines to create a “Query”.
“Search Engine Results Pages” (SERPs) are the results that a search engine presents in response to a Query.
“Compliant Techniques” shall be Search Engine Optimization techniques that conform to the Terms of Service and generally accepted guidelines for a particular search engine.
“Pay for Inclusion” (PFI) is the practice by some search engines and Directories requiring a payment of a fee before the inclusion of a website into said search engines and Directories database and results will be allowed. Some PFI fees do not guarantee inclusion, only consideration for inclusion, and are non-refundable.
“PPC (Pay Per Click)” is a system in which one purchases textual advertisements to be placed on the search engine or Directory results page based upon a list of keywords and/or phrases chosen by the advertiser and in response to a search term. The details on how and where the advertisement appears on the results page may vary and include bid amounts, click-through rates (CTR), relevance and other factors. The key denominator is that the advertiser only pays when a user clicks on the advertisement.
“Rush Work” is the work product that will be delivered to the requested party within 24 hours and must be agreed upon in writing by both parties prior to declaring a work product to be expedited
“Website Change Request” are requests to changes of a fully developed website that is currently in a production status.
In these Terms and Conditions, unless the context requires otherwise, the singular number shall include the plural and vice versa; words importing the masculine gender shall include the feminine and neuter gender; and words importing persons shall include associations, partnerships and corporations and vice versa.
For purposes of these Terms and Conditions, an entity shall be related to or affiliated with a Party if one of them is a subsidiary of the other or both are subsidiaries of the same body corporate or each of them is controlled by the same person. If two bodies corporate are affiliated with the same body corporate at the same time, they shall be deemed to be affiliated with or related to each other.
Unless the context of these Terms and Conditions require otherwise, reference in these Terms and Conditions to a numbered or lettered article, section, subsection, or paragraph refers to the article, section, subsection, or paragraph bearing that number or letter in these Terms and Conditions. A reference to “these Terms and Conditions”, “herein”, “hereof”, “hereunder” or similar terms refers to these Terms and Conditions as a whole, together with any amendments to these Terms and Conditions.
The language of this contract is in English as in common use in the United States of America (US English) and any disputes with translations of the CO and these Terms and Conditions in other languages shall be settled finally in US English.
All references in these Terms and Conditions to dollar amounts are to U.S. funds unless otherwise specified.
Article 3 Services Offered
Klemtek LLC shall perform the following SERVICES for CLIENT:
Website development on WordPress
Web design based on clients input
Website content input
Daily Staging, Production and monthly backups available for thirty (30) days
To the extent that CLIENT requires additional assistance or information from Klemtek LLC, Klemtek LLC will provide Related Services for an additional cost of $125.00 per hour, not including expenses. If monthly hosting services are purchased from Klemtek LLC the additional cost hourly rate will be reduced by $20.00 per hour ($105.00) for non-Rush Work. Both parties prior to any Related Service being performed shall mutually agree upon such additional costs. Additional services can be quoted on a per-project basis. Allocation of time is subject to availability.
If the technical support, assistance, or information described in Article 5.2 is to be provided at CLIENT’s facilities, then CLIENT shall, pay a 50% deposit for reasonable expenses for accommodations, travel, and such other reasonable costs as are incurred by Klemtek LLC in connection with the provision of such technical support upon requesting the same. Klemtek LLC shall use its best efforts to estimate the amount of such reasonable expenses in advance of providing such technical support services, and CLIENT shall pay to Klemtek LLC the balance for all work performed within fifteen (15) days of completion. In the event of any dispute over the amounts billed, or work performed, the CLIENT will pay any undisputed amounts upon completion of the work and the parties shall work together to resolve any disputed amounts in a timely manner.
Article 4 Intellectual Property and Copyright
The CLIENT authorizes Klemtek LLC’s use of all CLIENT logos, trademarks, Web site images, etc., for use in creating and using web resources including, but not limited to, web pages; and any other uses as deemed necessary by Klemtek LLC, and agreed to by the CLIENT, for website design, search engine marketing, and optimization.
The CLIENT warrants that it is legally entitled to use, and holds Klemtek LLC harmless regarding, all materials, content, logos, and/or any information provided to Klemtek LLC by the CLIENT during the term of the CO and as part of the SERVICES.
Klemtek LLC shall retain copyright over all completed work until final payment is made, subject to Article 7.4. After final remuneration, the CLIENT retains all work products and material and will be provided all original and created source files along with administrative access to any and all properties.
If for any reason whatsoever Klemtek LLC is unable to provide an agreed product or service in accordance with these terms and conditions, Klemtek LLC’S liability to the CLIENT shall be limited in its entirety to a proportional refund of any fees paid by the CLIENT for the service or product and the CLIENT hereby disclaims and waives the right to seek any consequential losses suffered as result.
Article 5 Indemnification and Access
The CLIENT shall indemnify and hold harmless Klemtek LLC and Klemtek LLC’s directors, officers, employees, agents and assigns from and against all claims, actions, obligations, liabilities, damages, losses, and judgements, including any incidental costs and expenses, arising out of or attributed, directly or indirectly, to the actions agreed to by the CLIENT in connection with the SERVICES. Specifically, CLIENT will indemnify Klemtek LLC for any claims related to the design, inclusion of content, or publishing of any website, marketing program or materials provided hereunder, including any claims of trademark infringement related to information or content provided by CLIENT to Klemtek LLC.
Klemtek LLC shall indemnify and hold harmless CLIENT and CLIENT’S directors, officers, employees, agents and assigns from and against all claims, actions, obligations, liabilities, damages, losses, and judgements, including any incidental costs and expenses, arising out of or attributed, directly or indirectly, to the actions agreed to by the Klemtek LLC in connection with the SERVICES. Specifically, Klemtek LLC will indemnify CLIENT for any claims related to the design, inclusion of content, or publishing of any website, marketing program or materials provided hereunder, including any claims of trademark infringement related to information or content provided by Klemtek LLC to CLIENT.
The CLIENT acknowledges that Klemtek LLC is a specialist and does not profess expertise in the CLIENT’s area of business. The CLIENT is responsible for, and holds Klemtek LLC blameless for, the content, trademarks and other aspects of the website that are related to the CLIENTs business, industry, and competitors.
The CLIENT agrees to provide the following:
The CLIENT must provide Klemtek LLC with current passwords and user IDs needed to gain remote access to the CLIENT’s Web site files via FTP software or similarly functioning software. Klemtek LLC is responsible for maintaining the confidentiality of the passwords and user IDs.
Where FTP access is not possible, CLIENT agrees to provide an email address of a technician who can upload requested changes on a timely basis. Klemtek LLC cannot be held responsible for delays once the technician has been notified of the upload request. A copy of the request will be sent to the CLIENT via email notification.
Access to raw log files or existing statistical reporting to facilitate Web site traffic reporting. Klemtek LLC will not be unable to supply these reports if the raw log files nor existing statistical reporting is available.
If CLIENT’s site is sparse in textual content, The CLIENT will provide additional relevant text content in electronic format for the purpose of creating additional web pages or increasing the content on existing ones, at Klemtek LLC’s direction and discretion. If this content is not or cannot be provided, Klemtek LLC will not be held financially responsible for results related to the absence of such materials. The CLIENT further agrees to allow Klemtek LLC to modify keyword density, positioning and other Klemtek LLC related aspects of the content without restriction.
The CLIENT agrees that no work shall be done on the website during the optimization process without Klemtek LLC’s knowledge and previous consent. Klemtek LLC shall not be responsible for delays, costs, or errors attributable to unauthorized changes to the website during the term of this contract.
Article 6 Term and Termination
The Term of the SERVICES, subject to the prior renewal or termination of the CO pursuant to its terms, is for a period of 1 month, commencing on the Commencement Date, and will automatically renew each subsequent month unless CLIENT gives Klemtek LLC sixteen (16) days advanced written notice of cancellation prior to the one (1) month term, or any subsequent terms, or unless otherwise canceled or terminated as permitted in the CO. All such renewals shall be on the terms and conditions of the CO and these Terms and Conditions.
Either Party may terminate the CO in the event that the other Party breaches a material condition of the CO or these Terms and Conditions, provided that the first Party gives written notice to the second party of the breach. The second party shall have sixteen (16) days from receipt of such notice to correct such breach. In the event the breach is not remedied within sixteen (16) days from receipt of notification, the first Party may, in its sole discretion, terminate the CO within a reasonable time after the expiry of the thirty (30) day period.
Notwithstanding any other provision of the CO and these Terms and Conditions, the Parties agree and acknowledge that the provisions of Articles 4 and 5 (and any other provisions intended to survive the termination of the CO) shall survive the expiration or termination of the CO and shall remain in full force and effect notwithstanding such expiration or termination.
Any termination of the CO shall be without prejudice to any other rights (including any right of indemnity), remedy or other relief vested in either Party or to which either Party may otherwise be entitled pursuant to the CO or these Terms and Conditions.
Article 7 General
Ethical Issues: Klemtek LLC reserves the right to refuse to provide services for a website or related services which we judge to be unfit due to content or otherwise.
Design Standards, Web Standards, Accessibility: Klemtek LLC makes every effort to design pages to current web standards, but cannot accept responsibility for pages that do not display acceptably in new versions of non-web standard browsers.
Klemtek LLC will provide a draft of the design on its own server during development so that the CLIENT may view and comment upon the progress. When the website meets the specifications set out in the written specifications, Klemtek LLC will invoice the CLIENT for the full amount due or the amount otherwise specified in the approved proposal.
On receipt of payment, Klemtek LLC will publish the website on the agreed-upon hosted platform, or provide the source code for the site via a download for the CLIENT to upload. Klemtek LLC is not responsible for CLIENT’S hosted platform if not provided by Klemtek LLC.
Where in the instance that a time scale has been agreed, and CLIENT has provided all content and information required to Klemtek LLC, a credit against the final cost will provided by Klemtek LLC if that deadline is not met, and an officer of Klemtek LLC has not provided CLIENT advance notification of any delays or inability to meet the deadlines:
One (1) Business Day will be a five percent (5%) hourly credit.
Two (2) Business Days will be a six percent (6%) hourly credit
Three (3) Business Days will be a seven percent (7%) hourly Credit
Over Five (5) Business Days will be a ten percent (10%) Credit for each day the issue is not addressed
Klemtek LLC uses its best endeavors to ensure the website and other services remain functional at all time. However, Klemtek LLC cannot guarantee or warrant that the functions and content of the website or other services will be uninterrupted or error-free. Any problems will be dealt with as speedily as is appropriate to the content and function of the website and may be chargeable at our normal rate during working hours and at double that rate outside normal working hours. All work that was billed within scope will hold a 1 month guarantee or we will revert back to the most recent workable backup version.
Once the website and other services meet the terms of the quotation with its specifications any modifications to the design will be considered an amendment to the contract, and billed at time and material rates set forth in Article 3.2.
Klemtek LLC will repair any and all errors notified to Klemtek LLC in writing within (16) days of the site production release. If errors are reported after more than thirty (30) days the time and costs involved in making such changes will be charged to the CLIENT as the rates forth in Article 3.2.
Testimonial, Reference and Links: Subject to the later agreement of the parties:
Klemtek LLC and its sub-contractors retain the right to display graphics and other Web design elements as examples of their work in their respective portfolios.
Klemtek LLC and its sub-contractors retain the right to refer other prospective clients to your website as testimonial or reference material.
Klemtek LLC reserves the right to a reasonable credit on the website with a hyperlink to its own website. This would normally be on a contact page or somewhere accessible but not obtrusive such as the footer socket.
Search Engine Submission and Results:
Klemtek LLC nor any other party can guarantee a first page ranking. If an agreement is reached between CLIENT and Klemtek LLC, then we will use standard practices to help improve search rankings in Google, BING, AOL, and Yahoo. Specifically, Klemtek LLC cannot be liable for SEO ranking or website placement with internet searches.
Where Klemtek LLC undertakes to maintain or update a CLIENT’s website a system of communication will be established that meets the needs of both the CLIENT and of Klemtek LLC to carry out the maintenance to a service level agreed.
Payment for maintenance is usually by monthly fees paid in advance and is reviewed and renewable annually.
In instances where the CLIENT choses to decline web site management agreement it is the sole responsibility of the CLIENT to manage site. Klemtek LLC will not be responsible for the site upon completion unless an alternative agreement has been reached.
In instances where the CLIENT cancels that maintenance agreement, all remaining funds that have not been utilized will be refunded to CLIENT.
To assist the operation of a website maintenance contract a project log or dedicated email address in account will be set up to allow CLIENT’s administrator to contact Klemtek LLC directly with technical problems.
Maintenance for CLIENT’s websites shall include:
Bios and Staff Updates
Graphic Design Modifications
Plugin and Server Maintenance
Social Media Integrations
Website requests will be billed according to Article 3.2. Non-Urgent requests will receive a 36 hour turnaround time after all content has been received by client.
Maintenance request must be sent to Support@com with a new subject line related to the task of the request.
For Urgent request an Email and Phone Call are required to make the appropriate updates.
Warranties by both parties are as follows:
Each Party to the CO warrants that it is not under any legal obligation that would prevent it from entering into the CO or that would prevent or hinder the carrying out of its terms and those contained herein, and that all internal authorizations required for the entering into the CO have been or will be made, including any required authorizations by its Board of Directors, or otherwise of each organization involved.
The Parties agree that, except as may be expressly provided in the CO and these Terms and Conditions, neither has made or makes to the other any representations or warranties respecting the compensation that the other may expect to earn or receive pursuant to this agreement or otherwise.
Save and except as expressly set forth in this Article 7.8 of the Agreement, Klemtek LLC expressly disclaims and excludes all express and implied representations and warranties, whether statutory or otherwise.
Unforeseen and Additional Costs and Expenses:
Additional features to websites, including extra database services, specific hosting requirements, animations that are not included in the quotation are subject to surcharge. If any changes in the quotations are in excess of 10% CLIENT’S written approval is required. In the event a feature is required which has not been included in the quotation Klemtek LLC will give notice prior to implementation and seek acceptance of the surcharge. The client will be required to digitally sign additional proposal with respective fees documented. Additional cost will be paid on a mutually agreeable invoice method, either on final invoice if no direction is given by CLIENT or on a separate invoice.
Website Hosting Services: Hosting services – where your website is stored on a server for delivery to website visitors – and email services are provided under a contract between the CLIENT and the chosen hosting and email provider (Internet Service Provider (ISP)) and will be bound by the terms and conditions of that ISP. Klemtek LLC makes no commission on such recommendations or services and in recommending an ISP does so in good faith and is not under any circumstances responsible or liable for any shortcomings or losses incurred as part of that 3rd party vendor contracts.
Where the operation of the website or other services provided by Klemtek LLC involves the collection and administration of personal data the CLIENT is deemed to be the Data Controller.
The CLIENT shall indemnify Klemtek LLC against any actions, costs and liabilities arising from the use in good faith by Klemtek LLC of personal data provided by the CLIENT or through the CLIENT’S website.
Where your website involves functionality that includes but not limited to e-commerce, PII, HIPAA or any government regulated data or information, the CLIENT must ensure that suitable arrangements are in place to maximize security levels with regard to financial and personal information relating to the users of the website and other services. This may necessitate the use of secure electronic protocols, authentication certificates, encryption et cetera and may require the provision of secure server facilities and/or the use of a credit card clearing service.
Where a service is provided relating CLIENT’s website in which one visitors can order goods or services through the website – whether through direct or indirect payment the CLIENT undertakes to ensure that all transactions are carried out legally and fairly, that the security of personal information and of financial information is maintained and that the collection and control of that data meets the requirements of the Data Protection Acts and regulations.
The CLIENT is solely responsible for complying with any laws, taxes, and tariffs applicable in any way to the website or any other services contemplated, and will hold harmless, protect, and defend Klemtek LLC and its sub-contractors from any claim, suit, penalty, tax, fine, or tariff arising from the website or other services provided.
Email Newsletters and Marketing
Where Klemtek LLC provides services relating to the management of email newsletters and other email marketing, fees will be billed on a quarterly basis, in advance, and are subjection to annual review and renewal.
Where Klemtek LLC provides email newsletter services they shall adhere to the legal requirements – to the best of our ability and shall not condone or support any activity related with indiscriminate spamming of email addresses.
Advice and Consultancy:
Any advice given in respect of software, hardware, programming, design, purchasing, training, upgrading, installing or any other advice, suggestion, recommendation or otherwise of any product or service provided by Klemtek LLC or by a third party, whether introduced by Klemtek LLC directly or indirectly is accepted by the CLIENT as an opinion and as such the CLIENT agrees that prior to acting on any of the aforementioned that CLIENT will first obtain professional advice. The CLIENT further agrees to indemnify Klemtek LLC of all liability with regard to any decision or action performed by the CLIENT that may or may not be a direct or indirect result of any contact or dealing with Klemtek LLC.
Klemtek LLC’s consultancy service and general advice is, by its nature, subjective. It is up to the CLIENT whether the CLIENT decides to follow Klemtek LLC’s ideas and suggestions. It is not possible and Klemtek LLC does not guarantee that any of those ideas and suggestions will increase traffic to the CLIENT’s site, improve the CLIENT’s ratings with search engines or boost sales.
Sub-Contracting: If necessary Klemtek LLC reserves the right, and the CLIENT hereby agrees, to allow the use of sub-contractors or agents to work on any aspect of the website or other services. These subcontractors include Fetching Communications, Data Aggregators, Google Consultants, Custom Database Programmers and Directory Submission Companies.
Communication and Site Visits:
Klemtek LLC’s preferred method of communication is by email. Invoices will be sent by email and are payable within fifteen (15) days of receipt. Invoices will come from commercial accounting software.
Extensive site visits should not be necessary and the majority of design approval will be undertaken using the Internet, electronic files or other means. In the absence of a maintenance agreement which will set out site visit arrangements, visits requested by the CLIENT beyond that which Klemtek LLC considers reasonable will be quoted separately and payable by the CLIENT at reasonable man-hour rate (including traveling time) plus reasonable travel expenses not less than the actual costs incurred.
The design process will be undertaken by online project portal communication. In addition, telephone conferencing, sample Internet design publication on Klemtek LLC’s website, file design submission on computer drive, or other method as appropriate to the CLIENT’s will be utilized in particular circumstances. Reviews of progress will take place via Join.me conferencing and screenshare presentation software. Trello will be used for project management and record-keeping purposes. Dropbox will be used for redundant data storage and file sharing.
Klemtek LLC and CLIENT are and shall be independent contractors and Klemtek LLC is not and shall not be the agent or legal representative of CLIENT for any purpose whatsoever. Neither Party is granted any right or authority to assume or to create any obligation or responsibility, express or implied on behalf of or in the name of the other Party or to bind the other Party in any manner whatsoever.
The Parties hereby agree that they not to hold themselves out as having any right or authority to assume or to create any obligation or responsibility on behalf of or in the name of the other party or to bind the other party in any manner whatsoever other than as may be expressly provided in this Agreement.
No Party may assign their rights under the CO without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any attempt to assign the CO without such written consent shall be void. Notwithstanding, Klemtek LLC shall be entitled to assign the CO to a company related to or affiliated with Klemtek LLC with the prior written consent of CLIENT.
It is agreed between the Parties that neither of the Parties shall be held responsible for damages caused by delay or failure to perform their respective undertakings under the terms of the CO when the delay or failure is due to fires, strikes, floods, acts of God, wars, riots, insurrections, lawful acts of public authorities, or delays or defaults caused by common carriers, that cannot reasonably be foreseen or provided against, including the actions of search engines, directories and related parties not under the direction or control of Klemtek LLC.
The delay or failure in performance excused by Article 7.18 of these Terms and Conditions shall only be excused for so long as the causes of such excusable delay or failure subsist. The Parties shall resume the performance of their respective undertakings forthwith upon cessation of the cause of such excusable delay or failure.
No covenant or condition of the CO and these Terms and Conditions may be waived except by the written consent of the waiving Party, and forbearance or indulgence by the waiving Party in any regard whatever shall not constitute a waiver of the covenant or condition to be performed by the other Party and until complete performance by the other Party of the covenant or condition, the waiving Party shall be entitled to invoke any remedy available under the CO and these Terms and Conditions or at law, despite the forbearance or indulgence.
If any part of these Terms and Conditions is found to be invalid by any court of competent jurisdiction, that part shall be deemed severed from these Terms and Conditions and shall not affect the validity of the remainder, which remainder shall remain in full force. Such severance shall have effect only in the geographic area within which such court has jurisdiction.
The laws of the State of Florida in the United States of America shall govern this interpretation and enforcement of this Agreement.
All disputes arising from the execution of/or in connection with the Services, the CO and these Terms and Conditions shall be settled through friendly consultation between both parties. In case no settlement can be reached, the disputes shall be submitted to mediation in Pinellas County, Florida, with each party paying fifty (50%) of the costs. If the mediator determines any party did not attend or participate in good faith, the party not acting in good faith shall pay all costs of the mediation and the matter shall be submitted to a second mediation at that expense of that party.
In the event of an impasse, any claims arising out of or related to the Services, the CO, and these Terms and Conditions shall only be brought in the courts having situs and jurisdiction in Pinellas County, Florida.
In the event of litigation, the prevailing party shall be entitled to recover from the other party all attorneys’ fees and costs incurred, through any appeals and bankruptcy.
The CO and these Terms and Conditions constitute the entire agreement between the Parties in respect of its subject matter and supersedes all prior and contemporaneous agreements, understandings and discussions, whether oral or written, between the Parties. There are no warranties, representations or other agreements between the Parties in connection with its subject matter except as specifically set forth in the CO or these Terms and Conditions.
No change or modification of the CO or these Terms and Conditions shall be valid unless it is in writing and signed by each Party hereto.
The CO or these Terms and Conditions are binding on all successors, permitted assigns, heirs, executors and administrators of the Parties hereto.
Waiver and Interpretation
Should Klemtek LLC waive any of these terms on an individual basis, this shall not affect the validity of remaining clauses or commit Klemtek LLC to waive the same clause on any other occasion.
These terms and conditions shall prevail over all terms and conditions of the CLIENT’s customary practice or any previous course of dealing between the Parties.
Any variation to these terms and conditions shall be inapplicable unless agreed between the Parties prior the commencement of any work on the CLIENT’s behalf and reduced to writing signed by both Parties.
Work, services or products are only supplied in strict accordance with these terms and conditions. The provision of work, services or products by Klemtek LLC is only undertaken on the understanding that the CLIENT has read and accepts these terms and conditions in full.
By agreeing to these Terms and Conditions the CLIENT’s statutory rights are not affected.
The CLIENT must ensure that the terms of its order and any applicable specification are complete and accurate.