Terms of Service
This document covers terms, definitions, and procedures and policies related to the products and services provided by NEWMEDIA
Agreement Provisions –
Unless stipulated otherwise in writing, executed by both Parties (NEWMEDIA and Client), the following standard Agreement contractual terms shall apply to all projects:
NEWMEDIA will work with best efforts and professional diligence to complete all projects in a timely manner. This requires a mutual commitment between NEWMEDIA and Client, without whose timely cooperation NEWMEDIA will be unable to complete its work as planned.
It is essential that NEWMEDIA receive full and timely support and cooperation from the Client, to provide payments, content, assets, feedback, approvals, support, input and direction as requested by NEWMEDIA. If Client fails to timely respond to multiple requests by NEWMEDIA for feedback or approvals or to otherwise adhere to deadlines as outlined in the timeline submitted by NEWMEDIA after the Project Kickoff, this may be a cause for Termination of the Agreement for Abandonment per the terms outlined below. Client acknowledges this material obligation and critical responsibility and agrees to work with NEWMEDIA as requested to achieve this goal.
The fee representing the hours of services to consult with Client and perform requested changes is due upon contract execution.
If Client wishes to purchase any additional hours they can do so at the standard rate of $125/hour, as needed. If any final payment is due beyond the hours included herein, for additional client-requested products and services (if any), based on actual time and materials used, then it will be due to be paid upon performance of services but prior to Client training, files/website release or go-live (as applicable).
Items to be provided by the Client:
Work and collaboration in good faith and best efforts with NEWMEDIA to accomplish project goals. Timely cooperation and assistance with feedback as needed. Access to existing code (e.g. server/hosting/CMS/database, as requested by NEWMEDIA). Payment(s) as agreed. Any necessary production assets including, but not limited to, business intelligence necessary for the purpose of the development of the website, wireframes, design files, logos / graphic files, images, text content. Project specifications. Beta testing support. Support and resources of Client’s internal team, as needed. Signed approval of NEWMEDIA’s Website Acceptance and Release Agreement upon request by NEWMEDIA for project milestones and development completion, but prior to training, admin access/website files release or Go Live. Authorization for visible, discreet NEWMEDIA web development signature (regular, unmodified backlink) on global footer of new website for a minimum of one year from date of the website go-live.
A) Termination for Default. Either party will have the right to terminate this Agreement for material breach of a material obligation that is not cured within thirty (30) days after written notice of such breach. For purposes of this Agreement, any act or failure to act by any third party contractor of NEWMEDIA or any employee of NEWMEDIA or such third party contractor shall be deemed an act or failure to act by NEWMEDIA.
B) Termination for Abandonment. NEWMEDIA shall have the right but not the obligation to terminate this Agreement immediately if Client fails to timely respond to multiple requests by NEWMEDIA for required feedback or approvals, or to otherwise adhere to deadlines as outlined in the timeline submitted by NEWMEDIA after the Project Kickoff despite multiple requests by NEWMEDIA.
C) Effect of Termination. Upon termination, in whole or in part, of this Agreement, NEWMEDIA will, upon Client’s execution of NEWMEDIA’s Website Acceptance and Release Agreement and completion of final settlement of Client’s billing account, deliver to Client all Client data, intellectual property, materials and other elements of the project necessary for Client or a competent provider selected by Client to continue the project.
a) Final settlement of Client’s billing account shall be defined as one of the following:
(i) If upon termination additional payment by Client is required to cover the hourly cost of the performance of services by NEWMEDIA, then NEWMEDIA shall invoice Client for such billable services and, upon receipt of payment in full of all unpaid invoices for services rendered prior to termination date NEWMEDIA shall mark Client’s billing account as settled in full; or
(ii) If upon termination payment that has already been made by Client to NEWMEDIA exceeds the cost of the hours performed by NEWMEDIA to provide services to Client prior to termination date, then NEWMEDIA will refund to Client the difference between the amount of all payment(s) received and the total cost of such hourly services performed, at which point Client’s billing account shall be marked as settled in full.
D) In addition, NEWMEDIA will upon request provide Client with reasonable assistance in transitioning in-house or to an alternate provider of services on a billable time and materials basis.
General Terms & Definitions
Alpha and Beta are the first two characters of the Greek alphabet. Presumably these characters were chosen because they refer to the first and second rounds of design, development and testing, respectively. Based on the web design/development/software release lifecycle, here’s how NEWMEDIA characterizes each phase of development:
The design is still being worked on and/or the software is still under active development, and not feature-complete or ready for consumption by anyone other than internal designers and/or developers. There may be milestones during the pre-alpha concerning specific aspects of the design(s) or functionality, and multiple revisions and/or builds for internal developers or client-users who are comfortable living on the bleeding edge.
The design is complete and client-approved and/or the core software is complete enough for internal (NEWMEDIA) testing. This is the stage at which the specific custom functionality begins to be implemented and tested, and the design that was approved begins to be themed against the application install. The project is still within the same organization or community that developed the software at this stage.
The project is complete enough for external testing – that is, by groups (i.e. the client) outside the organization or community that developed the software. Beta projects are usually at least 90% feature-complete, but may have known limitations or bugs, or partially incomplete components related to specific custom functionality. Betas are either closed (private) and limited to a specific set of users, or they can be open to the general public.
4. Release Candidate (a.k.a. Gamma or Delta)
The project is almost ready for final release. No feature development or enhancement of the project is undertaken; tightly scoped bug fixes are the only code that is allowed to be written in this phase, and then only for the most serious and debilitating of bugs. An experienced software developer once described the Release Candidate phase as: “does this bug kill small children?”
The project is finished – and by finished, this means there are no show-stopping, “small-children-killing” bugs in it. That we know of. There are probably numerous lower-prority bugs triaged into the next point release or service pack, or version 2.0 release, as well. This is the nature of custom development, however you can rest assured that the experts at NEWMEDIA understand this process very well, and that we’ll work with you throughout!
Policies & Procedures
The Client agrees at all times to adhere to NEWMEDIA’s contractual policies, as well as its published TOS and AUP, which may be modified at any time without warning. If Client wishes to engage with third-party individuals or organizations to work in conjunction with NEWMEDIA on the creation, maintenance, management or other performance of any services, or to access any NEWMEDIA-managed technology services (including, but not limited to hosting infrastructure, Github repositories, or website CMS access), Client agrees that it shall hold its agent(s) to the same standard and to bind them according to the same terms as Client’s direct obligations to NEWMEDIA. Subject to this agreement, NEWMEDIA agrees to cooperate with Client and Client’s designated agent on the basis of the agreement by Client that Client agrees to hold NEWMEDIA harmless and assumes responsibility for all such third-party performance and accepts all liability for any issues that may arise as a result of such access or cooperation provided by NEWMEDIA in good faith.
Client further agrees to ensure that any such nominated third party agent or other individual that was not a party to Client’s original agreement with NEWMEDIA will execute NEWMEDIA’s agreements, including but not limited to NDA, Waiver, Acceptance and Release of Liability, upon request by NEWMEDIA. NEWMEDIA shall not be required to provide any assistance or requested access to Client or to any Client-nominated party unless and until such agreement(s) have been executed. If NEWMEDIA elects in good faith to waive this requirement in the short-term for the sake of expeditiousness this does not release Client or Client’s agent from the obligation to provide such signed agreements after the fact upon request by NEWMEDIA.
Client assumes responsibility for all content and agrees to hold NEWMEDIA, its employees, agents, officers, and directors harmless from any claims or actions arising from any violation of trademark protection by the Client, or Client’s owners, agents, employees, and independent contractors.
In no event is NEWMEDIA liable to the Client or the Client’s owners, agents, employees, and independent contractors for exemplary, incidental, indirect, special or consequential damages of any kind, including without limitation loss of profit, savings or revenues, or the claims of third parties including end users, whether or not NEWMEDIA has been advised of the possibility of such loss, however caused and on any theory of liability, arising out of this agreement or the relationship of Client and NEWMEDIA.
Resource Planning and Allocation:
NEWMEDIA needs adequate time to assign resources to Projects. Meetings are conducted each Friday morning to resource plan for the following week. If a client requests immediate services that were not originally planned or resources allocated, one (1) additional week may be required to assign the proper resources and perform the work.
As it relates to fixed-price, or defined-scope agreements, NEWMEDIA’s policy regarding billing and deliverables is as follows:
NEWMEDIA prides itself in providing excellent customer service. To that end, we welcome input from the client during the design process. We understand, however, that clients may request significant design and/or development changes to items that have already been created to the client’s original specification. To that end, please note that any fixed-price agreement does not include a provision for significant page modification or additional programming to that which is clearly specified in the original agreement.
If significant page modification or programming is requested after work has been completed and/or approved, additional charges will be incurred. Some examples of significant page modification at the request of the Client include:
Developing a new table or layer structure to accommodate a redesign at the Client’s request. Recreating or modifying the company logo graphic at the Client’s request. Replacing more than 25% of the text to any given page at the Client’s request. Creating a new navigation structure or changing the link graphics at the Client’s request. Reprogramming of existing/wp-contentroved/agreed functionality. If page modification is requested by the Client after approval has been given, a change request with estimated costs will be submitted for client approval prior to changes being started.
Upon completion of the development, or upon interim milestones, Client will be advised that the work has been completed and NEWMEDIA will request that Client execute NEWMEDIA’s acceptance agreement. Client’s obligation to provide such written acceptance upon request, per the original project contract which is binding upon the Parties, is a material obligation pursuant to the contract with NEWMEDIA and failure to provide it shall constitute a breach of contract.
After contract has been paid in full, and formal written acceptance has been provided per NEWMEDIA’s request, then Client’s site will then be made live if it is to be hosted by NEWMEDIA, or it will be released to the client for setup at their hosting provider. NEWMEDIA will burn one copy of the client’s web site onto a DVD, or set up one copy of the website on our live hosting server, at the client’s request, upon completion of the site and upon receipt of final agreement balance. Additional backup copies of the DVD will be made available for a flat fee of $525.00 each (3 hours @ $175/hr).
If the website is not hosted with NEWMEDIA, then NEWMEDIA will upon request provide basic written instructions on how to set up a standard configuration site on a properly configured web server. However, it is the client’s responsibility to set up and install all files on their server and to test and ensure they are working properly. NEWMEDIA will provide assistance to the client at our prevailing hourly rate upon request. NEWMEDIA is neither responsible nor liable for conditions or limitations of servers that are not managed by NEWMEDIA.
NEWMEDIA will provide the client with full administrative access to the website CMS upon approval of NEWMEDIA’s work, and receipt of a signed statement acknowledging the complete functionality to the client’s satisfaction and releasing NEWMEDIA from any claims for issues that may suddenly arise after allowing the client or any other 3rd party to access the administrative backend. Unfortunately, it is the nature of the modern-day Internet that the tools that are available to allow clients to manage their own websites also create the potential for clients to accidentally damage those sites, and our policy is that we cannot be held liable in such an event.
All work is guaranteed to be delivered as specified and fully owned by the client upon payment as agreed. Any alteration or deviation of specified work will incur additional costs, and the requesting representative of the Client acknowledges those additional fees. NEWMEDIA requires final payment before site launch or final site files being released.
Copyrights and Trademarks
The Client represents to NEWMEDIA and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to NEWMEDIA for inclusion in web pages are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and Client will hold harmless, protect, and defend NEWMEDIA and its owners, agents, employees and subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
Payment of Fees
In many cases with a known or fixed deliverable and an estimated of fixed cost defined in an agreement, terms are “50/50” which means that a deposit of fifty percent (50%) of the project total is required to commence work, although NEWMEDIA may elect to waive this and provide alternate terms in certain circumstances. In such 50/50 agreements then the Client agrees that all fees are due and payable on the following schedule: Deposit payment due upon execution of contract, prior to commencement of any work; and the final balance payment, including any additional products and/or services added or fees incurred due upon completion, but prior to client training, file release/delivery or uploading to the web. However, in certain such 50/50 project agreements, if, once production is underway and NEWMEDIA is performing on Client’s behalf in good faith, Client elects to delay the project for its own reasons by 30 days or longer, thus impacting NEWMEDIA’s production workload and requiring additional work by NEWMEDIA to reschedule its resourcing to accommodate Client’s change request, then NEWMEDIA shall have the option to invoice Client for any outstanding balance for work performed on an hourly basis. In such an event, NEWMEDIA shall not be expected nor obligated to resume performance of Client’s work regardless of any updated schedule requests made by Client until payment for such invoice(s) are made by Client and received by NEWMEDIA, and settled in full. Other than the timing of any new invoices issued on this basis, all other terms of the original Agreement shall apply and be binding upon both NEWMEDIA and the Client.
For hourly billing rates on T&M projects, all hourly rates quoted are at the rate of 1.0 (100% of the standard hourly rate for the service performed) based on work being performed on-site at NEWMEDIA offices. In the event that NEWMEDIA personnel is required to attend another Client-determined location other than NEWMEDIA offices, for performance of work or for meetings, reporting, etc., then unless expressly agreed in writing otherwise beforehand NEWMEDIA shall bill Client for each such off-site hour at the rate of 1.5 (150%), regardless of the hourly rate in question or service being performed. If Client has an urgent request and wishes NEWMEDIA to commence delivery within 24 hours of request, Client shall notify NEWMEDIA of such upon service order request and NEWMEDIA shall be entitled to bill Client at the rate of 2.0 hours for every 1.0 hour performed, as a rush fee.
Clients are eligible for purchase of additional Service Agreement (“SA”) hours, to be used towards various ongoing services as needed. These agreements are available in 100-hour increments at the discounted rate of $125/hour (versus $175/hour standard rates) for a total purchase price of $12,500. In certain cases, Clients are provided with a predetermined quantity of SA hours on a monthly basis as a component of their Hosting plan, which shall be treated the same as SA hours purchased separately from hosting, as described herein. To utilize prepaid hours for services, Client shall request the services by submitting service order requests (each, a “Service Order”) to NEWMEDIA via the BaseCamp electronic order entry system. Client may view all Service Orders online through Client’s BaseCamp account. Upon NEWMEDIA’s receipt of a Service Order, work activity and task hours associated with each of the Services to be provided by NEWMEDIA will be tracked and applied to Client’s account balance. NEWMEDIA shall commence delivery of the Services requested upon receipt of a Service Order as promptly as feasible given NEWMEDIA’s production workload at that time, but in all cases endeavor to commence delivery within 2 and 5 business days from the date of request by Client. If Client wishes NEWMEDIA to commence delivery within 24 hours of request, Client shall notify NEWMEDIA of such upon service order request and NEWMEDIA shall be entitled to bill Client at the rate of 2.0 hours for every 1.0 hour performed, as a rush fee.
Discounted Large Blocks of Hours
For certain Clients, upon successful completion of standard agreement projects and based on mutual agreement for an ongoing, long-term relationship with a variety of services desired by Client that do not lend themselves easily to being defined by a standard agreement, at NEWMEDIA’s sole discretion NEWMEDIA may elect to offer Client the option to substantially discount the hourly rate they pay for services by buying blocks of hours on a prepaid, committed, non-refundable basis to be used by Client for any of NEWMEDIA’s offered services that Client wishes to have NEWMEDIA perform. In such cases, the actual hourly rate that is paid by Client can be reduced by 10%, 20%, 30%, and as much as 40%, based on the size of the block of hours that is purchased and paid for ahead of time. Client acknowledges that Client is receiving substantial additional value by purchasing these blocks of hours in this way, and in exchange for such value received Client agrees that such purchase of hours is final, non-refundable and cannot be canceled once purchased under any circumstances for any reason whatsoever.
If NEWMEDIA is hosting your website, there is no provision for monthly payments or 50/50 terms, and all fees are due and payable in advance, in 12-monthly increments. For renewals, any payments not received within 3 days of the due renewal/billing date, based on the date of service from your original hosting invoice, will be subject to a $100 late fee. For example, if your original hosting invoice indicated that your initial hosting term was for the periods January 1, 2010 through December 31, 2010, then your next hosting payment will be due and payable no later than December 31, 2010, and would be for the same term (12 months) and at the same rate as your original invoice, unless canceled in writing no later than 30 days prior to the renewal date (in this example, December 31, 2010). In this example, payment for the 12 months of 2011 would be due by December 31, 2010, and if no payment was received by January 3, 2011 (3 days past due) then a $100 late fee would be applied. Any payments still not received as of 5 days past due are subject to suspension of service and pursuit of legal collection fees for the entire remaining term based on the original invoice, i.e. a payment not received on this example account by January 5, 2011 would result in the client being responsible for the entire 12 months’ worth of fees for 2011 regardless of whether the site continues to be hosted on NEWMEDIA’s servers.
NEWMEDIA may elect to suspend or terminate any NEWMEDIA-provided services per the above terms for non-payment or slow payment of any other NEWMEDIA services, at NEWMEDIA’s discretion. For example, if a development invoice goes unpaid for a period of 5 days past due then NEWMEDIA may elect to suspend or terminate your associated website hosting services per the above and pursue legal collection fees for the entire balance due, any such legal actions shall be initiated, filed, and tried in District Court for the City and County of Denver in the State of Colorado. In no event will NEWMEDIA be liable to the Client for exemplary, incidental, indirect, special or consequential damages of any kind, including without limitation loss of profit, savings or revenues, or the claims of third parties including end users, whether or not NEWMEDIA has been advised of the possibility of such loss, however caused and on any theory of liability, arising out of this agreement or the relationship of Client and NEWMEDIA.
NEWMEDIA may or may not at its sole discretion submit invoices for hosting fees, but regardless of whether or not an invoice is generated it is the sole responsibility of the hosting Client to stay current with their payments, and NEWMEDIA cannot be held liable in any way for any suspension or termination of service in the event that payments are not made in a timely manner.
NEWMEDIA reserves the right to remove web pages from viewing on the Internet until final payment is made. If a site is suspended for non-payment, a $250 minimum reconnect fee is due and payable prior to restoration of service, in addition to any outstanding fees, as appropriate. If a payment delay is anticipated, please contact NEWMEDIA immediately for an alternative arrangement.
General Contract Provisions:
Client assumes responsibility for all content and agrees to hold NEWMEDIA, its employees, agents, officers, and directors harmless from any claims or actions arising from any violation of trademark protection by the Client. NEWMEDIA assumes responsibility for Services performed and warrants to Client that no NEWMEDIA Services shall infringe a patent, copyright or other proprietary right of any third party and agrees to hold Client, its employees, agents, officers, and directors harmless from any claims or actions arising from any violation of patent, copyright or other proprietary right by NEWMEDIA. In no event shall either Party be liable to the other for exemplary, incidental, indirect, special or consequential damages of any kind, including without limitation loss of profit, savings or revenues, or the claims of third parties including end users, whether or not any Party has been advised of the possibility of such loss, however caused and on any theory of liability, arising out of this agreement or the relationship of the Parties.
NEWMEDIA will have the option to perform work at its headquarters currently located at 1400 16th Street, Suite 400 Denver, CO 80202 or elsewhere, as determined appropriate by NEWMEDIA. NEWMEDIA shall not be obligated to perform any work at Client’s location or other location(s) of Client’s choosing. NEWMEDIA may perform its obligations under this Agreement with internal salaried personnel, external contract personnel, or any combination thereof as determined at NEWMEDIA’s sole discretion. NEWMEDIA will meet with Client as necessary for project task assignment, updates and reporting, either in-person or virtually, by phone conference, GoToMeeting, Google Hangout or similar, as often as reasonably requested by Client (days and times TBD) to ensure smooth and timely performance and adherence to schedule. No travel by any NEWMEDIA resources is contemplated in this Agreement.
NEWMEDIA offers an optional product, known as the 200% Money-Back Guarantee, which is an additional level of service that comes with an additional cost premium, which must be purchased by Client and added to the Estimated Project Cost table to be effective. Unless the Client elects to purchase this product for the services contemplated by this Agreement, for an additional explicit fee, no 200% Money-Back Guarantee shall be included.
Client acknowledges that NEWMEDIA accepts payment by credit card as a courtesy, and in the event that the Client attempts to dispute or charge-back any payment(s) made with a credit card, the Client will damage NEWMEDIA in amounts that will be difficult to prove and quantify. Accordingly, the Client agrees that, in the event that the Client does attempt to dispute or charge-back this credit card transaction, even if such attempt is not upheld by the credit card company and no portion of the Client’s payment is returned to the Client as a result of the dispute, the Client will regardless be liable to NEWMEDIA for liquidated damages in the amount of 200% of the full invoiced amount, in addition to actual damages and any and all costs incurred by NEWMEDIA in prosecuting such action or pursuing collection. The Client further agrees that, in the event that any chargeback action is taken once this payment has been processed, the Client will be in breach of this contract and subject to legal action, and the Client agrees that NEWMEDIA shall in that event be entitled to all expenses incurred in the enforcement of this contract, including but not limited to costs and attorney’s fees. If necessary, all legal actions concerning breach of this agreement shall be initiated, filed, and tried in District Court for the City and County of Denver, Colorado.
If any part of this Agreement is held by a court of competent jurisdiction to be invalid, then;
a) Where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
b) In any case the offending provision must be severed from this Agreement the remainder of this Agreement shall continue in full force and effect unless such reading down or severance affects the basic nature of this Agreement.
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