1. Acceptance of Terms
This Terms of Service (TOS) agreement is between the client (hereafter referred to as the "Client") and Waypoint Arts, LLC (hereafter referred to as "Waypoint Arts"). By accepting this Terms of Service (TOS) electronically or in writing, and/or by using Waypoint Arts' services, including but not limited to, submission of content, payment or authorization of payment, the Client agrees to be bound by the following terms and conditions. The Client also agrees that the Client's electronic acceptance of this TOS shall have the same force and effect as if the Client had agreed to this TOS in writing.
The Client's acceptance of the TOS is binding upon all Waypoint Arts' services including the purchase of additional services and/or revisions to existing Projects.
2. Orders and Billing
The Client hereby agrees to pay Waypoint Arts (hereafter referred to as the "Project Fee") for web design and development services (hereafter referred to as the "Project") in accordance with this TOS agreement. A non-refundable deposit of half (50%) the Project Fee is required within twenty-four (24) hours of the Client signing the TOS. Project development will commence once the deposit has been received by Waypoint Arts. Waypoint Arts will not release the Project until all outstanding balances are paid in full.
If the Project goes beyond the estimated scheduled and over budget due to added elements by the Client, an additional payment will need to be made before Waypoint Arts shall proceed with any work. The Client will then receive a new invoice for the additions prior to Waypoint Arts resuming the Project.
All transactions will be made in U.S. Dollars (USD).
3. Estimates and Timeframes
The Client understands, agrees, and acknowledges that Waypoint Arts does not guarantee a timeframe for the completion of the Project. In addition, if the Client continues to submit additional content throughout the development process, or requests additional modifications to the Project design, the completion timeframe will be increased. Other factors that may influence the completion date of the Project include, but are not limited to, complexity of the Client's Project, availability of Waypoint Arts personnel, accounting status of the Client's account, etc.
If the Client does not respond to Waypoint Arts' communications and, as a result, Waypoint Arts is not able to start or complete the project, the Client is still responsible for all fees incurred including, but not limited to, design purchase price, set-up fees, and enhancements purchased. If the Client's project requires custom programming, functionality, or the use of a database, the overall development time will be extended.
4. Project Commencement
Before the estimated development time can begin, Waypoint Arts must receive all related content including: images, logos, copy, and any other elements (hereafter referred to as the "Content") needed from the Client for the Project. The Client is responsible for providing copy/text for all aspects of the Project, aside from original graphics created by Waypoint Arts. Specifications for related content are as follows:
- Photos: Must be web or print-ready as they relate to your project (Web-ready: 72+ DPI. Print-ready: 300+ DPI)
- Logos: Need to be in vector or high resolution format (300+ DPI)
- Copy: Copy/text for each page or layout must be in final proof read format
- Color schemes
- Font types/faces
- Contact information
Waypoint Arts respectfully requests that the Client is available to respond via email to communications within twenty-four (24) hours of contact. This will help ensure that the Project remains on schedule and within budget. If at any time during the design and development phase the Client becomes unavailable to respond to any communications, Waypoint Arts reserves the right to re-prioritize the Project according to pending deadlines. This may mean that the Client's Project deadline will be delayed.
6. Unacceptable Practices
Waypoint Arts strives to offer the very best service and products; however, there are certain guidelines and policies that must govern these efforts and relationships with all Clients. Practices that are in violation of these guidelines and policies are strictly forbidden and may result in the immediate termination of Waypoint Arts' services. Such decisions are at the sole discretion of Waypoint Arts.
Unacceptable practices include, but are not limited to:
- Harmful, threatening, violent, abusive, harassing, tortuous, vulgar, obscene, libelous, invasive of another's privacy, racial, chauvinistic, ethnically offensive, complaint websites, or otherwise objectionable content or language
- Adult or pornographic material including, but not limited to, sexually explicit or suggestive material
- Sexually-oriented products or services (e.g. escort services), or other sexually oriented material
- Nudity, including airbrushing (exceptions granted on a case-by-case basis if for medical or artistic purposes)
- Offensive or otherwise distasteful material
- Content or language that is harmful to minors in any way
- Bulk emailing tools
- Distribution of internet viruses or other harmful or destructive activities
- Hacking and cracking
- Scams or phishing for personal information
- Defamatory, hateful, or revenge content or language
- Aids to pass drug tests or aids to pass lie detector tests
- Illegal activities such as ponzi schemes, pyramid schemes, fraudulent charging of credit cards, copyright violations, plagiarism, software piracy, and all unauthorized use of materials or content that infringes on third parties' intellectual properties MLM without a legitimate product or service, with a front product or service, or where the primary intent is to recruit new members rather than to sell products
- Reverse Funnel Systems
- Cash Gifting
- Illegal drugs or drug paraphernalia
- Illegal distribution of prescription drugs
- Intentional or unintentional violations of any applicable local, state, national, or international law
- Reselling of any Waypoint Arts' services including, but not limited to, design services and updates, to third parties without a written re-seller agreement
- Spamming and all other forms of unsolicited messages including, but not limited to, spam, chain letters, and junk email
- Links to other sites that are in violation of Waypoint Arts' policies and guidelines
- Other activities, whether lawful or unlawful, that Waypoint Arts deems to be in poor taste or that reflect adversely on Waypoint Arts or Waypoint Arts' other Clients
The Client agrees to conduct business in a legal and professional manner while abiding by these guidelines. Waypoint Arts reserves the right to refuse service at its sole discretion at anytime.
7. Permission and Copyright
The Client agrees and warrants that all images, text, and copy provided to Waypoint Arts for use in the Project are (1) the property of the Client, or (2) are provided with the necessary authorization or have been given permission from the rightful owner to use each of these elements, or (3) are otherwise available for Client's fair and legal use. The Client agrees to hold harmless, protect, and defend Waypoint Arts from any claim or lawsuit against Waypoint Arts arising from the use of any and all elements provided to Waypoint Arts by the Client. (See Indemnification.)
Waypoint Arts warrants that any deliverables provided by Waypoint Arts to the Client are (1) the property of the Waypoint Arts or the Client, or (2) are provided with the necessary authorization or have been given permission from the rightful owner to use each of these elements, or (3) are otherwise available for the Client's fair and legal use. Waypoint Arts agrees to hold harmless, protect, and defend the Client from any claim or lawsuit against the Client arising from the use of any elements provided to the Client by Waypoint Arts.
Waypoint Arts agrees to not disclose the Client's information to any third parties without the Client's consent.
9. Drafts and Revisions
Using the Client's submitted specifications, Waypoint Arts will strive to deliver the Project to the Client's expectations. To ensure the Client can provide input during the mockup phase, Waypoint Arts will provide drafts via e-mail or online meetings with the Client.
Since "design" is a subjective art, and not all parties' tastes are the same, it is important to be clear on how design modifications are handled. The Client may request changes to the design while the Project is in this mockup phase, and Waypoint Arts will make reasonable changes to please the Client within the scope of the written Project requirements. If minor, reasonable design modifications are insufficient to satisfy the Client, Waypoint Arts will require a sample of a design that pleases the Client. Waypoint Arts may use this sample as inspiration for the revised look. This design sample may be in the form of an emailed graphic or a link to any live website. Waypoint Arts will incorporate elements of (but will not copy, duplicate, or copyright-infringe) the sample design. If any design preference stated in the signed agreement form was not met, the adjustments will be made free of charge.
If the Client develops preferences or changes his/her mind after the completion of the Project, adjustments will be made by the hour at a rate of $60.00 per hour.
10. Client Approval
The Client is responsible for testing the functionality of the Project upon Waypoint Arts' request for approval, and notification that the Project has been completed. This includes, but is not limited to, functionality and accuracy of all website pages, database, overall functionality, etc. when applicable.
The Client understands and agrees that if he/she does not respond to requests for missing information, a final notification will be sent to the Client. If the Client does not respond within five (5) business days to Waypoint Arts' notification or requests for missing information, the Project, along with all services rendered, will be deemed to be approved by the Client, and the Project will be delivered with the missing information "as-is," unless there is still an outstanding balance on the account. If the latter holds true, the Project maybe subject to cancellation with no refund. (See Cancellation.)
At the Client's convenience, Waypoint Arts may offer installation of web development-related services on the Client's third-party server at no additional cost. The Client must provide Waypoint Arts root-level File Transfer Protocol (FTP) access. Failure to provide such access will absolve Waypoint Arts from any prior installation agreement(s).
Upon completion of the Project and all payments received by Waypoint Arts, Waypoint Arts conveys to the Client ownership of the copyright rights in the appearance of the Project unless otherwise specified with the exception of the Waypoint Arts copyright and trademark rights in its name and logo. The Client also agrees to the following:
- The Client grants Waypoint Arts permission to use samples or links to the Client's Project designed by Waypoint Arts and any copyrighted logos or brand names held by the Client, for marketing and advertising purposes, including but not limited to, use in Waypoint Arts' portfolio.
- Waypoint Arts shall retain full rights, title, and interest in and to all code used in the Project, which can be modified and re-used at Waypoint Arts' discretion outside of the Client's Project indefinitely, without limitation.
- Waypoint Arts is under no obligation to provide any content created during the design and development process that is not part of the final product, including but not limited to Photoshop (PSD) files. The Client's Project will be delivered in a "final edition" form only.
- Property rights of all drafts used during the construction and design phase of the Client's Project, including but not limited to code, images, other designs, notes, etc., are NOT conveyed to the Client.
Waypoint Arts, at its sole discretion, may terminate its service, for any reason, if Waypoint Arts believes the Client has violated the TOS. The Client agrees that Waypoint Arts shall not be liable to the Client or any third-party for any termination of services. Paid accounts that are terminated will not be refunded. Waypoint Arts may suspend or terminate accounts that become delinquent for more than thirty (30) days, in which case the Client remains responsible for any unpaid balance owed to Waypoint Arts. Waypoint Arts also reserves the right to discontinue the designing of the Client's Project at any time, at Waypoint Arts sole discretion, with an appropriate refund to the Client. Under no circumstances is the refunded amount to exceed the amount collected by Waypoint Arts.
If the Client cancels an account before the Project is completed, a cancellation fee is retained per the guidelines specified below. The Client agrees that all fees incurred and billed prior to cancellation effective date are valid and the Client agrees to pay.
The Client agrees to pay all outstanding fees incurred since signing the TOS until the cancellation effective date. In the event the Client requests a cancellation of the Project, full ownership and rights of all work performed by Waypoint Arts including, but not limited to, code, designs, artwork, etc. shall be retained by Waypoint Arts. Refunds of the fees shall be based on the following schedule:
- Waypoint Arts shall retain the deposit of half (50%) the Project Fee on cancelled accounts even if no work has been started and no Content yet submitted by the Client.
- If the Client does not respond to communication attempts by Waypoint Arts after fifteen (15) days of contact, Waypoint Arts reserves the right to cancel the account.
- If no work on the Project has been performed by Waypoint Arts thirty (30) days after receiving the Content from the Client and no communication has been sent to the Client by Waypoint Arts after thirty (30) days since receiving the Content from the Client, the Client shall receive a full refund of the 50% deposit of the Project Fee.
The Client agrees that all fees incurred and billed prior to cancellation date are valid and the Client agrees to pay.
13. Design Credit
The Client agrees to keep a small text, linked back to http://www.waypointarts.com on web-based Projects, on the footer of all final products produced by Waypoint Arts. The Client agrees not to remove this text and/or link unless ALL text, images, designs elements, content, and code produced by Waypoint Arts are also removed.
The Client may opt for a design credit removal fee of $500 USD.
14. Warranty and Exemption
Claims of defects, damages, and/or shortages must be made by the Client to Waypoint Arts in writing via e-mail within a period of ten (10) days after the Project's completion/delivery to the Client. Failure to make such claim(s) within the stated period of time shall constitute irrevocable acceptance and an admission that the Project fully complies with terms, conditions, and specifications. Any updates after the warranty period shall be considered a revision and fall under such terms as defined above.
Waypoint Arts cannot and will not be held responsible for modifications, alterations, or deletions made by any third-party. The Client acknowledges and agrees that Waypoint Arts has no control over and will not be liable for the unlawful acts of others who access the Client's Project.
15. Disclaimer of Warranties
THE CLIENT'S USE OF WAYPOINT ARTS' SERVICES IS AT THE CLIENT'S OWN RISK. WAYPOINT ARTS' SERVICES ARE PROVIDED "AS IS." WAYPOINT ARTS DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. WAYPOINT ARTS DISCLAIMS ANY WARRANTIES REGARDING WAYPOINT ARTS' SERVICES INCLUDING THAT THEY WILL MEET CLIENT'S REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. WAYPOINT ARTS DISCLAIMS ANY WARRANTIES REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF WAYPOINT ARTS' SERVICES, INCLUDING RESULTING SALES AND WEB TRAFFIC. WAYPOINT ARTS DISCLAIMS ANY WARRANTIES REGARDING THE MARKETING OF CLIENT'S PRODUCTS, SERVICES, SALES, OR WEBSITE. WAYPOINT ARTS DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH WAYPOINT ARTS' SERVICES, OR LINKS PROVIDED BY WAYPOINT ARTS' SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE PROVIDED BY WAYPOINT ARTS OR OBTAINED THROUGH LINKS PROVIDED THROUGH WAYPOINT ARTS' SERVICES.
THE CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF WAYPOINT ARTS' SERVICES ARE DONE AT THE CLIENT'S OWN RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO THE CLIENT'S COMPUTER SYSTEM OR LOSS OF DATA OR OTHER LIABILITY THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT.
16. Limitation of Liability
THE CLIENT UNDERSTANDS AND AGREES THAT WAYPOINT ARTS, ITS MEMBERS, SUBSIDIARIES, AFFILIATES, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WAYPOINT ARTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OF OR INABILITY TO USE WAYPOINT ARTS' SERVICES, RELIANCE ON WAYPOINT ARTS' SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF WAYPOINT ARTS SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED THROUGH WAYPOINT ARTS SERVICES OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT'S DATA OR TRANSMISSIONS AND ANY STATEMENTS OR CONDUCT OF A THIRD-PARTY OR ANY OTHER MATTERS RELATING TO WAYPOINT ARTS' SERVICES. SUCH LIMITATION SHALL FURTHER APPLY, WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED IN ANY WAY TO WAYPOINT ARTS' SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CLIENT.
Without limiting the foregoing, under no circumstance shall Waypoint Arts be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, or other casualties, illness, accidents, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non performance of third parties, or loss of or fluctuations in heat, light, or air conditioning. Waypoint Arts' full and complete liability, for any reason whatsoever, shall be limited to the full refund of all monies paid to Waypoint Arts.
The Client agrees to defend, indemnify, and hold harmless Waypoint Arts, its directors, officers, members, employees, affiliates, and agents from and against all claims, liability, loss, and expenses, including but not limited to attorneys' fees, that may arise or result from the Project, including, but not limited to any content the Client submits, posts, transmits, or makes available through Waypoint Arts' services; from any product sold by the Client, its agents or employees or assigns; from any service provided or performed or agreed to be performed by Waypoint Arts; or from the Client's breach or violation of the TOS, including any obligation, representation, or warranty made herein; or the Client's violation of any rights of another. The Client further agrees to defend, indemnify, and hold harmless Waypoint Arts, its directors, officers, employees, affiliates, and agents from and against all claims and expenses, including attorneys' fees, arising from or related to contracts, representations, agreements, promises, etc., made between the Client and third parties, or arising from or related to the Client's negligence toward third parties.
This agreement shall be governed exclusively by the laws of the State of Michigan, United States of America. Any disputes between the parties relating to the subject of this agreement shall be submitted exclusively to the jurisdiction of the state or federal courts located in Wayne County, Michigan.
Any modifications to this TOS agreement must be made in writing, and executed by both parties. The obligations of any party to this TOS agreement may not be assigned or transferred without the written consent of the other party.
If any provision of this TOS agreement is held unenforceable, then such provision can be modified to reflect the parties' intentions and the remaining provisions of this TOS agreement will remain in full force and effect.
The relationship between the Client and Waypoint Arts is not one of legal partnership, relationship, or agency, but is one of independent contractors.
20. Electronic Signatures
Selecting and submitting "accept" on the electronic copy of the TOS, submitting content through the Waypoint Arts' website, making payment, or submitting information or documents to Waypoint Arts so that Waypoint Arts may perform services for the Client, the same shall constitute an electronic signature as defined by Michigan's Uniform Electronic Transactions Act, Mich. Comp. Laws §450.831 et seq. The signatory further warrants that he/she is authorized to sign this TOS agreement on behalf of the Client.
Last updated: March 30, 2016