CUSTOM WEBSITE SERVICES AGREEMENT (“CWSA”)
Date Last Modified: May 01, 2017
1. Description of Custom Website Services.
- Optuno.com will build a Website (hereinafter referred to as the "Website") for the Customer ("you" and/or the "Customer") as identified and described in the related sign-up or order process and further based upon direction and input provided to us by you. The services referenced in this Section may be collectively referred to as the "Custom Website Services" or “Website”. Subject to the terms and conditions of this Agreement (which includes this and all other applicable Sections) and during the term of this Agreement, Optuno.com agrees to provide to you the Custom Website Services described on the Optuno.com Website at the time of purchase and purchased by you during the sign-up or order process. Optuno.com reserves the right to amend its Custom Website Services offerings and to add, delete, suspend or modify the terms and conditions of such Custom Website Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers. In the event Optuno.com refers you to a partner or affiliate and you engage such partner or affiliate to directly provide website design or logo design services to you, you understand and agree that Optuno.com is in no manner responsible for the services provided by that partner or affiliate and that the terms and conditions of that partner or affiliate will apply to the provision of those services provided by the partner or affiliate.
- Customer hereby grants to Optuno.com and its vendors and subcontractors all necessary rights and licenses with respect to the Customer's Website or logo created by Optuno.com in order to carry out its obligations under this Agreement and to make a reasonable number of archival or back-up copies as deemed necessary by Optuno.com. Optuno.com is not responsible for archiving documents, graphic work, physical goods or web pages created for client or documents, graphic work, physical goods or files which are mailed, email or faxed to Optuno.com. Optuno.com is not responsible for returning any files, documents or physical goods emailed, faxed or mailed to us.
- For the Custom Website Service, Optuno.com will assist the Customer with the design of a website using Optuno.com Website building tools, including but not limited to the proprietary content management system platform, referred to as "FICMS", and all of its associated modules (Premium plugins), plugins and code customizations as selected by Optuno.com at Optuno.com's discretion. Such tools may also include or utilize third party applications. Certain Website building tools used for the Custom Website Service may utilize default templates (also referred to as themes) that are subject to terms and conditions of the GNU General Public License found at http://www.gnu.org/licenses/old-licenses/gpl-2.0.html. Additionally, the Custom Website Services may also include additional Internet marketing services as outlined in advance in writing by Optuno.com and as further governed by this Agreement.
- As part of the Custom Website Services, your design may be dictated by an Order Form, Questionnaire, and/or Statement of Work (the “SOW”). This level of service is an offering whereby a Customer can request that Optuno.com design and create a Website for them using sophisticated graphics, advanced layouts and other features. You will receive a custom website designed and developed by Optuno.com. Although Optuno.com will custom design your website based off of an existing pre-designed template (also referred to as a theme), your website may contain some features and design elements used in other Websites designed by Optuno.com. You will receive a “Draft Version” of your new website that Optuno creates using the theme you select as part of the onboarding process that contains information and images you provide. Upon receiving the draft version you will receive up to 30 consecutive calendar days of unlimited revisions where Optuno will edit and modify and customize the draft site to your liking. If your design falls outside of this general offering and requires additional customization, in addition to the terms and conditions set forth in this Agreement and this Section, you shall be bound by the terms of the SOW which shall be prepared by Optuno.com and mutually agreed to by Customer and Optuno.com. The SOW may contain, but may not be limited to, a list or description of the services our designers will provide as part of the Custom Website Services, a list of technical, graphic or other special features that will be incorporated into your website, applicable fees and payment schedule, and a description of any applicable cancellation fee or policy. This SOW shall become a part of this Agreement and shall be subject to all terms and conditions of the Agreement.
2. Your Obligations. In order for Optuno.com to perform the Custom Website Services in accordance with this Agreement, you shall be responsible for doing the following:
- Providing Optuno.com with all information requested by Optuno.com as well as any custom images (including, but not limited to, design, pamphlets, brochures, logos, and other images) that you wish to have used in connection with development of your Website;
- Providing Optuno.com with all content required to populate the pages, unless otherwise stipulated by plan selected or plugins purchased that may otherwise modify and/or negate this requirement.
- Contacting Optuno.com promptly to make changes, modifications, and enhancements to your Website starting from the date of sale;
- Contacting Optuno.com promptly with notice of your decision to cancel or discontinue the Custom Website Services starting from the date of sale;
- Obtaining Internet connectivity to access your website, to send and receive email, and to otherwise access and utilize the Internet;
- To the extent that you gather any personal information about visitors to your Website, you will not share that personal information with any third party without first obtaining the visitor's consent;
- Ensuring that the Website content provided by you does not infringe or violate the Intellectual Property rights (including, but not limited to, trademarks, trade names, copyrights, patents, domain registration rights, and trade secrets) or any other right of any third party (including, but not limited to, rights of privacy and contractual rights), and acquiring any authorization(s) necessary to use intellectual property or other proprietary information of third parties. By using the Custom Website Services, you represent and warrant that any name or word submitted to be used as all or part of the URL associated with your Website does not infringe any trademark or domain name rights of any third party;
- Ensuring the accuracy of materials provided to Optuno.com, including, without limitation, website content, descriptive claims, warranties, guarantees, nature of business, and contact information for you;
- Responding promptly to various requests necessary for the project to move forward in a timely manner. During any stage of the design process, a designer or project manager will be working with you to gather information to start, feedback to revise, or approval to complete your website. If a response is not received from you for more than thirty (30) days if you signed up for a Tier 1 or Tier 2 plan or fifteen (15) days if you signed up for a Tier 3 plan, the project is considered "abandoned" and payment is surrendered in full. Optuno.com reserves the right to charge you a fee for repeated missed consultations, repeated rescheduling of consultations related to any website design work, and/or the reinstatement of your website design to an active status if no response has been received from you for 30 days; and
- Following the timeline of activities provided to you by Optuno.com, if any.
3. Information and Content You Provide. If you provide any information that is untrue, inaccurate, incomplete or not current, or we have reasonable grounds to suspect that such information is untrue, inaccurate, incomplete or not current, Optuno.com has the right to suspend or terminate your account and refuse any and all current or future use of the Custom Website Services (or any portion thereof). You acknowledge that Optuno.com does not pre-screen Content, images and inventory. However, Optuno.com and its designees shall have the right to remove any Content that violates the Optuno.com Acceptable Use Policy ("AUP"). You agree that you must evaluate, and bear all risks associated with the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Optuno.com or submitted to Optuno.com.
4. Non-Interference By You. Customer will use the Custom Website Services in a manner which does not interfere with or disrupt other network users, services, or equipment, and Optuno.com reserves the right to terminate or suspend the Custom Website Services without notice if such interference is determined by Optuno.com to exist. Such interference or disruption includes, but is not limited to:
- Wide-scale distribution of messages, including bulk email or unsolicited spam email, or wide- scale distribution of messages to inappropriate mailing lists, newsgroups, or other public or private forums;
- Propagation of computer worms or viruses; and
- Use of the network to make unauthorized entry to other computational, information, or communications devices or resources. This includes unauthorized security probing activities or other attempts to evaluate the security integrity of a network or host system without permission.
5. Unauthorized or Inappropriate Use.
- Optuno.com reserves the right to deny, terminate, or suspend Custom Website Services without notice if, in Optuno.com' sole discretion, the Custom Website Services are used by Customer in a manner that violates or may violate the following standards or the AUP, and Optuno.com reserves the right to reject, alter, modify, or remove your website, website domain name, URL address, or any website content (including, but not limited to, any language, words, text, photographs, designs, drawings, graphics, images, symbols, or logos) which Optuno.com in its sole discretion deems to be in violation of the AUP or (i) an infringement on or a mechanism designed to facilitate the infringement of a propriety interest of any third party, including without limitation, any copyright, trademark, domain registration right, trade secret, or patent right, or (ii) stating or implying that the Website is placed by Optuno.com or any party with a contractual relationship with Optuno.com, or that such parties endorse the your products or services, or (iii) pornographic or obscene.
- Optuno.com neither sanctions nor permits hosted site content or the transmission of data that contains illegal or obscene material or fosters or promotes illegal activity. Optuno.com reserves the right to immediately suspend or terminate any site or transmission that violates this policy, without prior notice. In the event of such termination, Customer agrees that the unused portion of any fees Customer may have paid for any services rendered to Customer by Optuno.com are an appropriate recompense to Optuno.com for the time required to respond to and address issues created by your illegal or obscene site/content, and Customer agrees not to seek recovery of those fees. Further, should Customer violate this Agreement or the AUP, Optuno.com will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about Customer, your website, the illegal or obscene content, and those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.
6. Additional Indemnification Obligations. In addition to your indemnification obligations set forth elsewhere in this Agreement, you agree to defend, indemnify, and hold harmless Optuno.com and each of its officers, directors, employees, agents, affiliates, co-branders or other partners, and employees of any of the foregoing, from, against, and in respect of: (i) any and all losses, damages or deficiencies resulting from any third party claim in connection with your website (including, but not limited to, website content) or the URL, and (ii) all costs and expenses incident to any and all actions, suits, proceedings, claims, demands, assessments, or judgments in respect thereof regardless of the merit thereof, including reasonable legal fees and expenses (whether incident to the foregoing or to Optuno.com' enforcement of said rights or defense and indemnity).
7. Ownership of Your Content.
- As between Customer and Optuno.com, all Content provided by Customer to Optuno.com for inclusion to the Website shall remain the sole and exclusive property of Customer. Customer acknowledges that all Content is owned by Customer or that Customer has a legal right to such Content and that such Content and the use thereof does not violate the Optuno.com Acceptable Use Policy (AUP) in any way. Customer is responsible for any and all claims related to the Content. If customer purchases a Domain Name through Optuno.com as part of their Website purchase, after the initial thirty (30) days following the launch of the Website (i.e., 30 days after the Website goes live), Customer shall be granted rights to the domain name Customer selects for use with the Website (the “Domain Name”), however Optuno.com makes no representations whatsoever with respect to the rights to any Domain Name that Customer provides for use with the Services. Optuno.com can also not guarantee availability of any desired Domain Name. Customer will further be responsible for all claims related to your use of the Domain Name.
- With the exception of your interests with respect to your Content and rights to the Domain Name as identified in the previous paragraph, ownership interest to the Website, including, but not limited to the HTML coding, scripting, copyrights, and all other intellectual property rights, shall remain exclusively with Optuno.com and Optuno.com grants you a non-exclusive, revocable license to use these design elements and related applications provided you are current with respect to the service fees and not otherwise in breach of the Agreement. Optuno.com shall also have the right to display your Website on its online properties as an example of the design work Optuno.com is able to provide for its customers.
- Optuno Footer - Customer hereby agrees that the text and image footer link “Site by Optuno®” will appear on the completed site. Customer may choose to exclude or permanently remove the footer from its website, subject to an additional one-time payment to Optuno in the amount of $1,000.00 USD.
Upon termination of the Services, should Customer desire to obtain ownership rights to the Website, Customer must obtain express written permission from Optuno.com and Customer shall further remit a fee to Optuno.com for the assignment of these rights to the Website. Provided Customer is not in default of the Agreement and Customer is also current with respect to payments owed to Optuno.com, the fee to be remitted for this assignment will be as follows: One Thousand Five Hundred Dollars ($1,500.00) after one (1) year of successive hosting, and maintenance; or Two Thousand Five Hundred Dollars ($2,500) prior to one (1) year of successive hosting and maintenance with Optuno.com. This assignment to Customer of ownership rights to the Website shall be limited to the actual portions of the Website visible on the Internet and its underlying HTML coding as developed specifically for Customer by Optuno.com, and shall be sent to Customer via email with a direct link to download a compressed archive file (.zip file) within thirty (30) days of remitting payment, but this assignment shall not include any rights to Optuno.com's software, trade secrets, methodologies, processes, proprietary functions, know-how, and all intellectual property including, but not limited to, all copyrights, trademarks, patents, and trade secrets related to Optuno.com's products or services, which shall remain the sole and exclusive property of Optuno.com and its respective suppliers, affiliates, partners, and/or licensors. For all images that are part of the Website and assigned to Customer hereunder, Customer is granted permission to only use those images in the manner in which it is provided to Customer by Optuno.com (i.e. embedded in the Website) and no other use of the images is permitted whatsoever. Moreover, upon assignment Optuno.com does not warrant the portability or functionality of the Website in any way to or on any platform, hosting or otherwise, that is not provided by Optuno.com. The files provided to you will be a static snapshot of your website that you can host on a third party server through a non-affiliated hosting provider. However, all of the features and functions of Optuno.com, such as your plugins, e-commerce tools and the ability to change content, will no longer be available after cancellation. You will need to have a web developer move your site to your new hosting provider’s server, maintain it and make any changes you wish. Following the termination of the Services, provided such termination occurs after the initial thirty (30) days following the launch of the Website (i.e. 30 days after the Website goes live), and provided Customer is not otherwise in breach of the Agreement, Customer will retain their rights to the Domain Name.
8. Fees and Payment Terms.
Fees for the Custom Website Services selected by you will be on a pre-paid basis, due and payable at time of sale (meaning at the beginning of the project) and then on a recurring basis, in advance of each billing cycle, throughout the Term of the Agreement, unless another fee or payment structure is mutually agreed upon by you and Optuno.com in writing, namely, the Statement of Work or via other method such as an order confirmation or welcome email. You also agree to follow the timeline set forth by Optuno.com in the SOW, if applicable.
Optuno offers services in three tiers of pricing, each with its own set of terms and obligations. You agree to be bound by the terms and restrictions of the plan you select at the time of purchase or time of account transition from one plan to another. These pricing tiers provide the same service within a specific plan, however your level of commitment enables you to benefit from substantial discounts. Transitioning from one plan to another does not alter the date of original project creation which is used to determine website buy-out costs upon service cancellation.
Unless otherwise specified in writing, Websites purchased with Tier-3 Month-to-Month Pricing (“Tier 3”) including any other Month-to-Month Pricing Subscription offering, have no minimum commitment beyond the first month of service, and are charged the highest posted rate for a particular plan not including any applied discounts. You agree that by selecting Tier-3 pricing or any other Month-to-Month subscription offering with no commitment, that should you cancel service at any time during a monthly billing cycle, you are not entitled to a refund and are subject to and obligated to pay a $250 cancellation fee if cancellation occurs at any time and for any reason.
Unless otherwise specified in writing, Websites purchased with Tier-2 Monthly Pricing (“Tier 2”) have a minimum commitment of six (6) months of service, and as such are charged a discounted rate from the highest posted rate of a particular plan. By selecting this option you agree, that in order to receive the discounted posted rate for Tier 2, that you are obligated to pay for the full six months of service, and that should you wish to cancel your service prior to your sixth month billing cycle, that you are obligated to pay the remaining balance up to the sixth month billing cycle and are subject to a $250 cancellation fee at Optuno’s sole discretion. Once you’ve met the sixth month minimum commitment, you are able to cancel services with no charges or penalties.
Unless otherwise specified in writing, Websites purchased with Tier-1 Annual Pricing (“Tier1”) have a one-year annual commitment (12 months), and as such are charged at a significantly discounted rate from the highest posted rate for a particular plan. By selecting this option you agree, that in order to receive the discounted posted rate for Tier 1, You acknowledge and agree that you are obligated to pay for the full year of service in advance, and that should you wish to cancel you can do so, however there will be NO REFUND available to you.
You further agree that in the event you terminate your subscription to the Custom Website Services for "Tier 2" or "Tier 3" pricing tiers, and prior to the delivery of the Custom Website Services, including the initial Website draft provided by Optuno for your review, you are obligated to pay a $250 cancellation fee unless you qualify for Optuno’s money back guarantee. If your Custom Website Services have been completed and delivered to you (meaning approved and ready to go “live” or having gone “live”, you will not receive a refund of any fees paid and, in the event we have permitted you to pay on a monthly (or other payment-over-time) basis, you will be obligated to pay us for the balance of your term based on the pricing Tier selected at the time of purchase.
The purchase and completion of any Custom Website Services requires receipt of written content and images by you ("Content"). If insufficient Content is received we will complete your Custom Website Services with placeholder content and deliver the Custom Website Services to you within the guidelines of our timeline. At this time you will no longer be eligible for a refund. Content submitted after timeline can be added at an hourly rate determined by Optuno.com, or as part of a monthly maintenance plan associated with your project.
You further agree, that if you purchase any Custom Website Services and Optuno.com has provided you with discounted pricing via a coupon code used on the website or applied to your order over the phone and, regardless of pricing tier selected, Optuno.com shall have the right to charge you, and you agree to permit Optuno.com to charge your credit card, up to $250, should you choose to cancel the Custom Website Services at anytime and for any reason.
Responses from you will be necessary for the project to move forward in a timely manner. In these situations, if a response is not received for more than sixty (60) days, the project is considered "abandoned" and you will be obligated to pay us for the balance of your term. Finally, Optuno.com reserves the right to charge you a fee for repeated missed consultations related to any Custom Website Services work and you agree to permit Optuno to charge your credit card for said fees.
Payment for the purchase of additional design or development time after the Custom Website Services have been completed ("Modification Time") will be on a pre-paid, hourly basis, due and payable at the beginning of each modification (and each month thereafter if purchasing additional Modification Time). Some Modification Time may be included in your Service, as stipulated in the sign-up or order process. Once any such Modification Time is exhausted during the current month or other billing period, additional Modification Time will need to be purchased for an additional fee. Additional Modification Time is billed at $99.00 per hour for modification to existing pages beyond the allotted number of minutes included in your service, as stipulated in the sign-up or order process; and $50.00 per page for content page development beyond the initial number of pages included in your service, as stipulated in the sign-up or order process. Any unused Modification Time, paid or included, shall not "roll-over" to be used in a subsequent month.
Domain names included as part of your plan, or 'free for one year' as part of any plan will renew automatically every year on the anniversary of the account creation date and at a rate of $19.99 per year. Domain names purchased as stand-alone services automatically renew annually from the date of purchase at a rate of $19.99 per year. Cancellation of a domain name requires 30-days written notice. It is at Optuno's ultimate discretion if any refund is issued should a cancellation request be submitted after the renewal date has passed. If customer cancels a bundled plan that included a 'free domain for one year" after the first thirty (30) days following the launch of the Website, but elects to keep the domain name registration through Optuno, standard annual renewal fees of $19.99 still apply.
If you obtained a domain name through Optuno as part of your plan, or ‘free for one year’ and wish to cancel your Custom Website Services, you agree to permit Optuno.com to charge your credit card a $35 domain name registration and account transfer fee. Optuno will then create an account with a domain name registration provider of Optuno’s choosing on your behalf using the contact information on file with Optuno. This will initiate the registration and transfer of the domain name out of Optuno’s account and into the domain registration provider account created by Optuno on your behalf. Upon verifying completion of the transfer and payment, Optuno will provide you with the login credentials to access your new domain registration provider account. From that point forward you will be the listed contact representative of the domain name and the owner of the domain registration provider account and will be solely responsible for all subsequent renewals and domain registration responsibilities thereafter.
9. Upgrading / Downgrading of Project Plans. You can Upgrade or Downgrade a plan at any time.
Upgrading: To upgrade to a more complex and expensive plan, you will be charged the prorated difference between plans for the remainder of your current billing cycle. Your subscription will be modified to auto-bill your credit card on file for the new higher amount upon the next billing cycle. There are no additional fees to upgrade your plan.
Downgrading: Downgrading to a more basic and less expensive plan, requires 15 days notice prior to next billing cycle and a one-time Downgrade Fee equal to one month of service at the initial plan rate being downgraded from. This fee is applicable to the time required to transition and format the site content, images, videos, plugin/plugins, templates, etc. to work within the confines of the reduced offerings provided in the newly assigned plan. There are no other additional fees unless special customization is requested. Custom design and coding will be quoted and agreed upon under a separate document.
10. Suspension and/or Termination. If you breach any term of this Agreement including, but not limited to, the terms of this Schedule or the AUP, Optuno.com may, in its sole and exclusive discretion, suspend or terminate your Custom Website Services immediately and without notice to you. In addition to your obligation to pay any set up and applicable fees for the Custom Website Services, fees for the Custom Website Services may continue to accrue on suspended accounts and you will continue to remain responsible for the payment of any fees for Custom Website Services that accrue during the period of suspension. Suspended accounts will be reactivated within 24 hours of receipt of payment.
11. Refunds. Refunds are only applicable to Tier 2 and Tier 3 subscription plans which are billed on a monthly recurring basis. Refunds do not apply and are not applicable for Tier 1 (Annually billed) subscription plans. Refunds are only available to monthly billed subscriptions within 15 days of the initial order date and with no revisions having been requested from the date the draft website was presented to client. No refunds will be given after 15 days, and/or after a draft website has been delivered and revisions have been requested. In any event, after one (1) year from the date of purchase, no refunds will be provided.
12. Modifications and Quotes. The prices and modifications agreed to in any SOW are unique to you. Any SOW prepared for you is valid for thirty (30) days from the date it is provided to you and will become void thereafter. If any change or alteration is made to the SOW, Optuno.com may issue to you a revised SOW and may require you to purchase additional Custom Website Services, which may be billed to you at an hourly rate.
OPTUNO RESERVES THE RIGHT TO AMEND ANY PORTION OF THE INCORPORATED AGREEMENTS WITH OR WITHOUT NOTICE. IT IS THE CUSTOMER'S RESPONSIBILITY TO REVIEW ALL OPTUNO POLICIES FREQUENTLY TO ENSURE COMPLIANCE.