The following Terms & Conditions apply to each agreement, project, program, or assignment between the Client (corporation, LLC, partnership, or individual) and Fasturtle (FT).
By accessing or using any Fasturtle website, any Fasturtle product or service, or any applications (including mobile applications) made available by Fasturtle, however accessed, clients agree to be bound by these Terms & Conditions. From time to time FT may change these Terms & Conditions in order to make improvements, adjust to changes in the technological marketplace, or align with Government rules and regulations. Please check this page for such updates.
The following terminology applies to these Terms and Conditions, Privacy Statement and Disclaimer Notice and any or all Agreements: “Client”, “You” and “Your” refers to you, the organization or person accessing this website and accepting the Company’s terms and conditions. “The Company”, “Fasturtle”, “Ourselves”, “We” and “Us”, refers to our Company. “Party”, “Parties”, or “Us”, refers to both the Client and ourselves, or either the Client or ourselves. All terms refer to the offer, acceptance and consideration of payment necessary to undertake the process of our assistance to the Client in the most appropriate manner, whether by formal meetings of a fixed duration, or any other means, for the express purpose of meeting the Client’s needs in respect of provision of the Company’s stated services/products, in accordance with and subject to, prevailing Arizona State Law. Any use of the above terminology or other words in the singular, plural, capitalization and/or he/she or they, are taken as interchangeable and therefore as referring to same.
General Terms Nothing in this Agreement shall be deemed to create an agency, partnership or joint venture between the Parties. This Agreement constitutes the entire agreement between the Parties and supersedes any prior communications, representations or agreements of any kind. This Agreement may not be modified except in a writing signed by both Parties. Inconsistent terms on purchase orders, invoices or other documents shall have no effect and are expressly rejected by Fasturtle. This Agreement shall be governed in accordance with the laws of the State of Arizona without regard to conflicts of laws principles. Failure to enforce or delay in enforcing any rights under this Agreement shall not be deemed to be a waiver or modification of such rights.
Price & Payment Unless otherwise specified, the payment terms are COD. Fasturtle, at its sole discretion, extends credit terms to qualified accounts. Credit card payments will not be accepted on quotes and/or invoices where Net Terms have been extended without prior written approval from Fasturtle.
Buyer shall bear all applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and any other similar charges, however designated or levied on the sale or delivery of the Products & Services or measured by the purchase price paid for the Products & Services. Fasturtle’s prices set forth on the front side of the invoice do not include such taxes, fees and charges. Exemption certificates must be presented to Fasturtle prior to delivery if they are to be honored.
All fees and expenses are due and payable upon receipt of invoice. A late fee of up to two percent (2%) of the invoice value will be added to any invoice not paid by the 30th day of the issuing month. Client’s monthly service will be suspended if payment is not received by the 5th day of the following month. For Fastsubmittal programs, all fees and expenses are due and payable upon receipt of invoice. If charges to a Client’s credit card are declined, the Client’s services may be suspended in FT’s discretion until payments are current. Returned checks for NSF, will result in an additional $35.00 fee. If service is suspended, an additional $95.00 fee must be paid to restore service.
Limitation of Liability Neither Fasturtle or Client will be responsible for damages or other loss, including, but not limited to, indirect, special or consequential damages, arising out of, or related to, the furnishing, performance or use of the Product(s) and/or Service(s) provided under this agreement. In no event shall either Party’s liability for damages to the other for any cause whatsoever arising out of this agreement, regardless of the form of action, exceed the sum of all payments actually made to Fasturtle by Client for the specific Product(s) and/or Service(s) that caused the damages or that are the subject matter of or are directly related to the cause of action.
Attorney’s Fees. In the event that suit is brought, or an attorney is retained by any party to this Agreement to enforce the terms of this Agreement or to collect any money due under this Agreement or to collect money damages for breach of this Agreement, the prevailing party shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney’s fees, court costs, costs of investigation, and other related expenses incurred in connection with bringing such action.
Forum Selection. For purposes of any proceeding involving this Agreement or any obligation of either Fasturtle or Client arising out of or in connection with this Agreement, Client submits to the non-exclusive jurisdiction of the courts of the State of Arizona and of the United States having jurisdiction in Maricopa County, Arizona and agrees not to raise and waives any objection to or defense based upon the venue of any such court and any objection or defense based upon forum non conveniens. Client agrees not to bring any action or other proceeding with respect to this Agreement or any obligation of either Fasturtle or Client arising out of or in connection with this Agreement in any other court unless such courts of the State of Arizona and of the United States for the District of Arizona determine that they do not have jurisdiction in the matter.
Alternate Dispute Resolution Any disputes arising from this agreement, except FT claims for non-payment, will be resolved by arbitration and neither party may file a claim in any court except for non-payment of fees due, to enforce an arbitration award, or for injunctive or other equitable relief.
Indemnification Each Party shall indemnify, defend and hold the other Party harmless from and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable attorney’s fees, resulting directly or indirectly from any breach of this agreement by such Party and from any acts, omissions or misrepresentations by such Party in connection with the sale, installation or use of the Product(s).
Term & Termination After the initial term of any contract, this contract continues in force on an annual basis for a like term until cancelled by a 30 day advance written notice and one half (1/2) of any remaining term balances paid in full unless otherwise agreed upon in writing by both parties. Client may cancel SEO during the initial term for any reason by paying one half (1/2) of the remaining balance in addition to any other fees, expenses, and prior extended discounts contingent on the term of the contract that are due at the time of cancellation. Cancellation of SEO services will result in immediate removal of all “meta data” implemented by FT, and immediate cessation of all submissions and reporting per SEO plan description. Cancellation of Hosting services will result in removal of all website files from FT or FT dedicated server(s). Fastsubmittal programs are month to month and will not incur a termination fee. All payments previously received by FT are earned and there are no refunds for early termination. FT reserves the right to terminate any agreement, project, program, or assignment because of nonpayment, late payment, or other factors which make FT’s performance impractical. Early termination fees may apply.
Rights & Permissions Client provided content must be delivered to FT in digital format: i.e. MS Word or text file, images, .jpg, .png, .gif. Client represents and warrants that Client has rights and permissions to use all data, recordings, artwork, written copy and printed materials that may be replicated in website content and will not infringe upon any trademark, copyright, contract, property rights and that Client has paid any and all royalties or other charges pursuant to copyright law of the United States, any statute, order, or other law, right or contract governing such materials. FT reserves the right to review and reject any material that contains matter which is libelous, defamatory, obscene, invades the rights of privacy or rights of any individual, or for any other reason at its discretion. Final payment entitles the Client to use completed work only in a manner specified by FT. FT reserves the right and Client agrees to allow FT to use its creative development, Client name, and marks in any future FT advertising and marketing. Client grants FT the right to brand all FT design and development with “website by Fasturtle” in the footer of the website, Client reserves the right to purchase the removal of this brand for $500. Client agrees to indemnify, hold harmless, and defend FT from any actual or alleged breach of any representation or warranty set forth herein. FT may defend any claims arising from an alleged breach using legal counsel of its own choosing at the Clients expense, to be paid immediately upon receipt of an invoice for such fees and costs.
Work Product Ownership Any proprietary work concerning web-based methodology, techniques, applications, database creation methods, web-presence methods, lead generation techniques, etc., developed by FT shall remain the sole property of FT. Any products, patents on products, text, information, trademarks, copyrights, audio, video productions, techniques, applications, database creation methods, web-presence methods, lead generation techniques, etc., developed by client or its associates shall remain the property of Client.
Copyright to Web Pages Copyright to the finished assembled work of web pages produced by FT is owned by Client. Upon final payment of this Agreement, Client will wholly own the finished assembled work described herein including but not limited to the design, graphics, and text contained in the finished assembled website. Rights to photos, graphics, source code, work-up files, and computer programs produced or developed prior to the commencement of the work described herein and specifically owned by FT or third party entities are specifically not transferred to Client, and remain the property of their respective owners. FT and its subcontractors retain the right to display graphics and other web design elements as examples of their work in their respective portfolios.
Copyrights to Software and Databases Copyright to the finished assembled work of software and Databases produced by FT and its contractors is owned by Client. Upon final payment of this Agreement, Client is granted ownership of the design, structure, and functionality, contained in the finished assembled website or on the hosted server. Rights to the data and the results of the output of the software created by FT and its contractors will remain the property of Client. Rights to proprietary photos, proprietary graphics, proprietary work-up files, source code, documentation of the Databases, and Software and proprietary tools or computer programs are specifically not transferred to Client, and remain the property of their respective owners. FT and its subcontractors retain the right to display graphics and other Web design elements as examples of their work in their respective portfolios.
Technical Service & Delivery Hours of operation: Monday-Friday, 8:00 AM-5:00 PM. Targeted minimum response time for business website maintenance: three (3) business days during hours of operation. FT services will be performed by personnel possessing competency consistent with applicable industry standards. No other representation, express or implied, and no warranty or guarantees are included or intended in this agreement or in any report, opinion, deliverable, work product, document or otherwise. Fasturtle is not responsible for any third party errors whereas client is fully responsible for all billable time spent researching and attempting to resolve such items.
From time to time clients may require technical or related business support from FT. Support requests should be submitted through the appropriate communication channel designated by FT and specifying relevant issue(s) in clear detail. As stated previously, FT aims to address (not resolve) all support requests submitted along these lines within three (3) business days.
Security FT utilizes industry standard precautions to ensure the integrity of each site. FT is not liable for malicious acts of others. FT will attempt to restore any website design damaged from random and generalized attacks or targeted attacks for the appropriate standard hourly support fees.
Compliance and Permissions Practices for Email Client must follow the rules of the federal CAN-SPAM act when sending e-mail using FT service. All promotional emails must contain a one-click unsubscribe link that remains active for 30 days after the email is sent. Client is responsible for monitoring, updating, and processing unsubscribe requests within 10 business days. Emails must contain non-internet contact information of the sender, company phone number and address. All emails must state the reason the recipient is receiving the email i.e. “You are receiving this message from ABC Company because you signed up on the email list at www.abccompany.com”. Client agrees to import, access, or otherwise use only permission-based lists (see Spamming/Unsolicited Bulk E-Mail for more information.). Both the number of email messages sent and the number of Kilobytes of data transferred are metered by FT. Normal FT accounts allow Client to send an unlimited number of email messages. The total Kilobyte data transfers of each message can be no more than 100kb. It is understood that FT makes no guarantee the HTML messages will be rendered properly on all recipients e-mail programs, due to the wide variety of HTML generation tools available. FT makes every attempt to insure email messages sent through our servers follow email standards. FT will not use any Client subscriber lists or Client information for any other purposes than those intended with the service.
Spamming & Unsolicited Email Terms and Conditions for Email Marketing are provided by Constant Contact at http://www.constantcontact.com/uidocs/CCSiteOwnerAgreement.jsp. Constant contact reserves the right to modify or adjust these Terms or Conditions at any time. Client is responsible to check for recent updates and abide by all terms of use herein.
Harvesting/Spidering/Spyware The collection of e-mail addresses, screen names, or other identifiers of others (without their prior consent), a practice sometimes known as “spidering” or harvesting, or participating in the use of software (including “spyware”) designed to facilitate this activity or use of a list obtained from such means is not allowed. A user suspected or found harvesting email addresses may be blocked from sending mail until FT is satisfied that the activity has been stopped.
Warranty Disclaimer & Additional Liability Limitations In no event shall FT or its vendors or suppliers be liable for any damages whatsoever (including without limitation, special, incidental, consequential, or indirect damages for personal injury, loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use FT’s work, even if FT has been advised of the possibility of such damages. In any case, FT’s and its vendors’ and suppliers’ entire liability under any provision of this agreement is limited to the amount actually paid for the website development, creative development, and hosting services. If Client’s website is down due to failure on the part of FT, FT will credit the Client website downtime (based on Client’s current hosting rate) if the Client requests such credit. The request for credit must come within seven (7) days of the actual outage, and the outage must be as a result of server interruption, not as a result of the Client’s ISP or internet connection, etc.. If the website is down due to problems with the Client’s ISP or internet connection (i.e. dialup service, DSL, cable modem, T1 or any other type of connection), FT is not responsible and is not required to assist the Client in getting reconnected; any time spent on such matters will be invoiced at applicable hourly rates. Use of FT service and any reliance by Client upon the service, including any action taken by Client because of such use or reliance is at Client’s sole risk. FT does not warrant that the service will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. The services are provided “as is”. FT expressly disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose and non-infringement. Any and all Website (Microsite, Fastsite, Mobile Site, etc.) errors caused by FT will be corrected by FT upon client request within thirty (30) calendar days from the client website becoming live; hourly rates apply for all out of scope services and errors reported outside this thirty (30) day range.
Bandwidth Limitations Client must comply with the current bandwidth, data storage and other limitations on the services. Client may not use the services in a manner that places disproportionate burden on the network or impairs the service received by other Clients. If so, FT reserves the right to suspend services until a solution is agreed to by both parties.
Delay & Abandonment Clause FT is not responsible for delay in publication of new websites due to Client neglect and/or delay for missing content, etc.. FT is not responsible for 3rd party delay such as copy writing, professional photography, etc. A project will be deemed abandoned 30 days after written notice to Client of FT’s unsuccessful reasonable effort to contact Client. No refunds or pro-rations will be made because of delays or abandonment unless otherwise agreed upon by both parties. Upon written request, FT will release all completed work if all fees and expenses due to FT have been paid in full. Email Marketing accounts are deemed abandoned after 120 days of inactivity. Account signup information and data may be permanently removed from the database without notice if the account is abandoned.
Integration Clause There are no additional oral promises, conditions, representations, understandings, interpretations or terms of any kind as conditions or inducements to the execution hereof or in effect between the parties. All prior discussions and negotiations merge in this agreement and related written contracts. This agreement may not be amended or modified except by a document signed by both parties.
Website Design Revision Rounds Revision Rounds associated with Website Designs are not to exceed four (4) hours each. Any additional revision work exceeding this is not included whereas hourly rates apply for out of scope services.
