This Services Contract or
Service
Agreement ("Agreement") is a valid legal agreement between
Nechtan Design (“Nechtan”, “The
Comanpy”) and
you, the individual or single entity ordering Nechtan Design's
services ("Services"). This Agreement governs your purchase
and any use of Nechtan Design's Services ordered by you including Web
design services.
Nechtan Design reserves the right to reject
this Agreement for any reason prior to acceptance. Activation of the
Services or a valid Nechtan representative signature on a Scope
document will indicate Nechtan Design's acceptance of this Agreement.
This agreement shall become effective as of the date of (1) your
acceptance of this agreement, (2) the activation of your account or
(3) your receipt of an e-mail from Nechtan Design confirming your
order, (4)your signature on a Scope document, whichever happens
first.
MODIFICATIONS
Nechtan Design may amend or
otherwise modify this Agreement at any time and from time to time
without notice to you. You will be bound by the amended Agreement
upon your continued use of the Services after the revised Agreement
is posted at this web site. You may determine the date of posting at
the Effective Date section at the end of this page.
PRIVACY
Nechtan Design does not sell, rent or
otherwise disclose its mailing lists to third parties.
Any Web design work that is completed by Nechtan Design may be posted on our portfolio page. If you would like your identifiable information to be blurred please send a letter stating such to Nechtan Privacy Dept P.O. Box 191 Sewickley PA 15143.
Nechtan Design does collect information from its Web site when the information is volunteered by the individual. This includes, but is not limited to, email addresses, USPS addresses, names and phone numbers. We may use this information at any time to contact you regarding goods or services that we believe may be of interest to you. If you would like to stop receiving this information from Nechtan Design please send a letter stating such to Nechtan Privacy Dept P.O. Box 191 Sewickley PA 15143. You will be removed from our list within 15 days of receipt of this request.
INDEMNIFICATION
Customer agrees that it shall defend,
indemnify, save and hold harmless from any and all demands,
liabilities, losses, costs, claims, including reasonable attorney's
fees, ('Liabilities') against Nechtan Design, its agents, its
customers, servants, officers, employees, that may arise or result
from any services provided, performed or agreed to be performed or
any product sold by Customer, its agents, employees or assigns.
Customer agrees to defend, indemnify and hold harmless Nechtan Design
against Liabilities arising out of any injury to person or property
caused by any products sold or distributed in connection with Nechtan
Design's server; and material supplied by Customer infringing or
allegedly infringing on the proprietary rights of a third party;
copyright infringement and any defective product which Customer sold
on Nechtan Design's Server. As a result of this, Customer agrees that
Nechtan Design shall not be liable to Customer for any claims of
actual, compensatory and/or consequential damages which may be
suffered by Customer, including, but not limited to, losses or
damages due to the loss data resulting from delays, non deliveries,
or service interruptions caused by the fault or negligence of Nechtan
Design. Notwithstanding the above mentioned, Customer's exclusive
remedies, damages, losses and causes of actions shall not exceed the
aggregate dollar amount which Customer paid during the last 12 months
of this Agreement.
NO WARRANTIES
Nechtan Design
will do its best to keep all services up and running efficiently.
However, Nechtan Design provides the services "as is"
without warranty of any kind. In the event that Nechtan Design
provides you with products in conjunction with other services,
Nechtan Design also provides those products "as is" without
warranty of any kind, whether express or implied. Nechtan Design
disclaims all implied warranties, including the implied warranties of
merchantability or fitness for a particular purpose. For programming
services, unless otherwise specified in your contract, you are
granted the non-exclusive right to run those programs on the Nechtan
Design servers. You are not permitted to transfer the code to any
other hosting provider; all code remains the sole and exclusive
property of Nechtan Design. Nechtan Design cannot guarantee
continuous service, service at any particular time, or integrity of
data stored or transmitted via its system or via the Internet.
Nechtan Design will not be liable for the inadvertent disclosure of,
or corruption or erasure of, date transmitted or received or stored
on its system. In no event shall Nechtan Design be liable for any
direct, consequential, loss of profit, special, exemplary or punitive
damages, even if Nechtan Design has been advised of the possibility
of such damages, that you incur from the usage of information
obtained over the internet. Nechtan Design will not be responsible
for any damages your business may suffer. Nechtan Design assumes no
liabilities for publishing information provided by clients as part of
its Web design services. CLIENTS ARE SOLELY RESPONSIBLE FOR ALL
INFORMATION PUBLISHED ON THEIR WEB SITES! Nechtan Design makes no
warranties of any kind, expressed or implied, for services we
provide. Nechtan Design disclaims any warranty or merchantability or
fitness for a particular purpose. This includes loss of data
resulting from delays, non-deliveries, wrong delivery, and any and
all service interruptions whether or not caused by the fualt or
negligence of Nechtan Design and its employees, contractors, vendors,
or assignees. Nechtan Design reserves the right to revise its
policies at any time. Nechtan Design specifically limits its
liabilities to the amount that you paid Nechtan Design in the past 12
months.
REFUSAL OR
DISCONTINUANCE OF
SERVICE
You hereby agree that any termination or refusal shall
not constitute a breach of contract, or be used as the basis for any
other claims, financial or otherwise against Nechtan Design by you,
and you agree to indemnify and hold Nechtan Design harmless from any
claims by third parties resulting from your use of our web hosting
services. Nechtan Design may elect at its sole discretion to monitor
some, all or none of your web activities for adherence to this
agreement. At all times, Nechtan Design reserves the right to
terminate this agreement, and refuse providing further service to
anyone it determines is in violation or may violate any law.
DATA ENCRYPTION
Although
Nechtan Design provides encrypted data through its secure servers via
industry standard methods, Nechtan Design assumes no responsibility
for the effectiveness of any encrypted data, nor will Nechtan Design
guarantee that an encryption algorithm will be indecipherable, and
data visibly transmitted. Nechtan Design makes no claims or
warranties regarding the viability, integrity or invincibility of the
encryption used, nor will Nechtan Design accept responsibility for
the success or failure of the secure server to properly encrypt data.
Therefore by using Nechtan Design's secure server and being charged
for its use, you assume any risks that the encryption may be
decipherable.
NOT TRANSFERRABLE
You agree that the
Nechtan Design service is not transferrable. Whoever activates and
pays for the account is responsible for that account.
ECPA
NOTICE
Nechtan Design reserves the right to monitor any and
all communications through the system. You agree that Nechtan Design
is not considered a "secure communications medium" for the
purposes of the ECPA, and that no expectation of privacy is
afforded.
IDENTIFICATION INFORMATION
You agree that
you as the person legally responsible for use of this account, are at
least 18 years of age. You agree to supply Nechtan Design with
correct information for our records, and you have a continued
obligation to keep this information current.
CONFIDENTIALITY OF
PASSWORD
You
are responsible for maintaining the confidentiality of your password
and are liable for any harm from disclosing or allowing disclosure of
any password or from use by any person of your password to gain
access to your account.
BACKUP OF DATA
You are
responsible for backing-up your data, files, e-mail and other
information stores in your account. However, Nechtan Design will take
reasonable measures to protect such information. Nechtan Design
reserves the right to delete all of your data, files, e-mail and
other information that Nechtan Design holds in computer storage once
your account has been terminated, for any reason, by either party.
There is a minimum charge of $80.00 for any request to restore data
from our backup.
BILLING PROCEDURES
Subject to
the acceptance of this Service Agreement, Nechtan Design will
activate the service upon completion of the registration process,
payment and account validation/approval is completed. Once your
account is opened, you will receive your password, account
information and instructions via email. You are responsible for
maintaining the confidentiality of both your password and your
account and are fully responsible for all activities that occur under
your password and your account. You agree to immediately notify
Nechtan Design of any unauthorized uses of the account or any other
breaches of security. Nechtan Design cannot and will not be liable
for any loss or damage from your failure to comply with this security
obligation. You acknowledge and agree that under no circumstances
will Nechtan Design be liable, in any way, for any acts or omissions
by you, including any damages of any kind incurred as a result of
such acts or omissions.
Billing Cycles (Terms)
Nechtan Design billing cycle begins when you receive an e-mail
confirming that your website has become available for access over the
Internet. The first month is due in advance, including any set up or
extra fee. Up to 12 months of service may be paid for in advance. All
payments are due on the Account Statement Date. The Account Statement
Date is the monthly anniversary of the date the account was activated.
Accounts that are fifteen (15) days past due will be automatically
suspended and the Web site will be taken down until payment or other
arrangements are made. All past due and unpaid balances are subject to
collection. In the event of collection, you will be liable for costs of
collection including attorney's fees, court costs, and collection
agency fees.
Account Renewals
An email announcing your next payment date will be sent to the contact
email address you provide to Nechtan Design. In order to insure
uninterrupted service to your website, all plans will automatically
renew at the end of the plan's Billing Cycle. Plan renewal charges are
based on the prevailing rate on the date of renewal according to the
service selected. The expiration of your domain name does not
automatically terminate your hosting account. Your hosting account
billing term automatically renews upon its completion. If you wish to
cancel your plan before plan renewal, please refer to the Cancellation
section below.
Statements
Nechtan Design will send a paper statement and receipt when it is requested. Nechtan Design reserves the right to charge an administration fee of $1 per paper statement or receipt sent.
If a paper statement is not requested, statements will be sent to your account's primary email contact.
One
original
statement and receipt for Web design and programming services will be
sent vis USPS for no additional charge.
Payment Methods
All charges are shown in US Dollars. Payments are to be made in US
dollars. Nechtan Design accepts the following types of payment:
All
payments may
be sent to:
Nechtan
Design
P.O.
Box 191
Sewickley,
PA
15143
Fees
Returned (NSF) Checks
Nechtan Design charges a $25.00 fee for
returned (NSF) checks and services will be terminated immediately
until payment is provided. Customers that issue an NSF check will be
required to submit future payments with a certified check or money
order.
Reactivation
Customers that wish to reactivate a closed account
canceled due to lack of payment will be assessed a $45.00
reactivation fee.
Domain/Account Transfer
Customer's who wish to transfer a domain name or account that is not in good standing may only do so after paying a $60.00 transfer fee. Accounts that are in good standing may transfer a domain or account at any time.
Billing/Price Changes
Nechtan Design's policies and prices are subject to change without
notice. Any price changes become effective in the next billing cycle.
Refund Policy
Any refund made via check or credit card will incur in a 10%
administration fee or a $3.00 fee, whichever is higher, which will be
subtracted from the total amount of the refund. Refunds will be
processed during the next billing cycle.
REFUNDS AND OUR
30-DAY MONEY BACK
GUARANTEE
Nechtan Design offers a
30-day money back guarantee which consists of a full refund of the
current month of hosting during the first 30 days of service (excluding
setup fees), plus a refund of any months of service you have prepaid,
with certain restrictions mentioned below:
CANCELLATION
Hosting
plans will automatically renew until a plan is canceled. In order to
cancel service, you must submit the cancellation by email to
cancellations@nechtandesign.com
or in writing to Nechtan Cancellation Department P.O. Box 191
Sewickley PA 15143. Due to the possible inconsistencies with email,
if you are canceling via email, the cancellation is not considered
effective until you have received a confirmation email from our
Cancellations department! Cancellation requests must be received by
Nechtan Design a minimum of five (5) days prior to the end of your
Billing Cycle and will be effective on the Statement Due Date. If you
send in a cancellation request after your account became due and was
paid, and you do not qualify for our 30 day money back guarantee, the
payment will not be refunded. Nechtan Design will confirm the
cancellation request when it is processed. If you do not receive a
confirmation, please contact Nechtan Design as soon as possible.
Nechtan Design reserves the right to cancel service at any time if a violation of any policy occurs. All fees paid in advance of cancellation will be pro-rated and refunded in accordance with our refund policy. Any violation of policies which results in extra costs will be billed to the customer.
DELIQUENT ACCOUNTS
If the account is not paid
within 15
days after payment is due, access to the account will be blocked and
the web site will be taken offline. Any such termination or
interruption does not relieve you from paying the overdue amount plus
any interest, and in the event of collection enforcement, you shall
be liable for any costs associated with such collection, including
legal costs, attorney fees, court costs, or collection agency fees.
Nechtan Design will not automatically cancel plans for problems
related to domain name transfers, non-usage, Internic, your ISP, or
any other secondary issues not directly related to Nechtan Design's
services. Cancellation of services does not relieve the customer from
paying any outstanding balance owed on the account. Nechtan Design
reserves the right to cancel any account, at any time, without
notice, for any reason Nechtan Design considers appropriate. If you
have a delinquent account and would like to transfer a domain name
this may be done so after paying a $60.00 domain transfer fee.
DATA LOSS POLICY
Nechtan
Design is not responsible for any data loss and/or damages. This
includes data loss caused by the user, lack of caution by the user,
hardware/software/human error, or a server security breach. Nechtan
Design is not responsible for any losses caused by the termination of
an account.
DATA TRANSFER
Nechtan Design
has the right to charge you at up to $20 per gigabyte for each
gigabyte you are over on your data tranfer. If you cancel your
account and are unwilling to pay for the extra data transfer, Nechtan
Design has the right to not refund future prepaid months and/or to
charge you for the extra data transfer.
SERVICE LEVEL
AGREEMENT
To Customers in good
financial standing
with Nechtan Design we guarantee that our network is available 99.5%
and their host server is available 99.0% of the time in a given
month, excluding scheduled maintenance. All maintenance will be
schedule at least 24 hours in advance.
The network is defined as core network infrastructure excluding the hardware, services and software running on your server. The server is defined as the host hardware that houses the account. Downtime is measured from the moment the Customer notifies a Nechtan Design support representative of a failure to the time the Network or Server responds to an external "ping" request. Notification of network failure must occur at the time of the outage and not after the fact. Notification should be made via a phone call or our ticketing system. Email is unreliable during a network/server outage.
For purposes of this guarantee, Service Outages shall be defined as 20 consecutive minutes of web site (HTTP) inaccessibility or an unbroken sequence of 30 minutes of network outage. This guarantee does NOT include:
Nechtan Design will not be held responsible for Service Outages resulting from non Nechtan Design operated equipment including, but not limited to, Internet NAP failures or congestion (MAE East, MAE West, etc.) and non Nechtan Design backbone failures, telephone circuits between a POP and the customer location any networks or network equipment not owned or controlled by Nechtan Design. Additionally, Service Outages will not include downtime due to OS (denial of service) attacks on customer web sites, Acts of God, nor for outside security breaches, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services, including DNS propagation, domain name registration/transfer/expiration, failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of your web site, or a client breaking any or terms and conditions in Nechtan Design "policies" causing a machine to fail as a result. Furthermore, Nechtan Design will not be held responsible for delays in the registration or transfer of a domain due to InterNIC related issues, including DNS propagation, for outages resulting from malfunctioning customer scripts or applications that are installed by the customer, nor for unusual traffic spikes or DOS (denial of service) attacks on customer web sites. Finally, Nechtan Design will not be held liable for Service Outage damages resulting in the loss of prospective profits or anticipated sales or as a result of expenditures, investments, or commitments in connection with the business.
If network downtime exceeds .2% in a given month, the Customer will be credited 5% of their monthly hosting fee and an additional 5% for each additional 2 hours of downtime up to 50% of the Customer 's monthly hosting fee.
If server downtime exceeds 1% in a given month, the Customer will be credited 5% of their monthly hosting fee and an additional 5% for each additional 2 hours of downtime up to 50% of the Customer 's monthly hosting fee.
Credits shall not be provided to the Customer if network or server downtime is the result of: a) scheduled maintenance b) circumstances beyond Nechtan Design's reasonable control, including, but not limited to: dDOS or other network attacks, upstream or 3rd party network outages, war, fire, flood, sabotage, labor disturbance, acts of government, acts of god or c) breaking this Agreement.
DOMAIN NAME
REGISTRATION
Should
you choose to register a domain name through Nechtan Design, Nechtan
Design will register a second level domain name on your behalf,
provided such domain name is available for registration. Nechtan
Design acts only as an intermediary between you and the organization
providing the domain name, and has no influence over the assignment
of domain names. The registration of your domain name is subject to
the terms and conditions of those third-party registrars, and is also
subject to the terms of the Uniform Domain Name Dispute Resolution
Policy ("UDRP"). Nechtan Design assumes no liability in the
event the domain name is unavailable or otherwise not assigned to
you, and does not warrant or guarantee that assigned domain names do
not infringe the rights of third parties, or that you will retain the
rights to that domain name for any period of time. You agree that you
are responsible for any and all fees and costs related to the
registration of your domain name, and you authorize Nechtan Design to
bill you for any such fees and costs. Nechtan Design will
automatically renew your domain registration on a yearly basis or
other term requested by you and bill you accordingly.
In the event of non-payment on a
domain name the customer agrees and acknowledges that the domain name
registration shall be transferred to Nechtan Design. In addition, we
reserve all rights regarding such domain name including, without
limitation, the right to make the domain name available to other
parties for purchase. In any of such case Nechtan Design reserve the
right to change the domain's information. Nechtan Design will
reinstate Customer's domain name registration solely at Nechtan
Design's discretion, and subject to our receipt of the initial
registration or renewal fee. We will transfer said domain name within
30 days if contacted by the appropriate parties after receipt of a
$60.00 domain transfer fee.
OVERALL CONDUCT
The Nechtan Design server
may be used
only for lawful purposes. Users may not use the Nechtan Design server
in order to transmit, distribute or store material (a) in violation
of any applicable law, (b) in a manner that will infringe the
copyright, trademark, trade secret or other intellectual property
rights of others or the privacy, publicity or other personal rights
of others, or (c) that is obscene, threatening, abusive or hateful,
including the advocating of terrorism and/or the killing of any
individual or group.
COPYRIGHT
Users are responsible for
complying
with all applicable federal and state laws applicable to their Web
site content, including copyright laws. Unauthorized copying,
distribution, modification, public display, or public performance of
copyrighted works is an infringement of the copyright holders'
rights. As a condition to your account with Nechtan Design, you agree
that you will not use the Nechtan Design service to infringe the
intellectual property rights of others in any way. Nechtan Design
reserves the right to terminate the account of a user upon any single
infringement of the rights of others in conjunction with use of their
services.
E-MAIL
Users may not send
unsolicited e-mail
messages, including, without limitation, bulk commercial advertising
or informational announcements ('spam') in a way that could be
reasonably expected to adversely impact the Nechtan Design servers,
including, without limitation, using an e-mail account on Nechtan
Design's server to send spam or bulk e-mail, or using the service of
another provider to send spam or to promote a site hosted on or
connected to the Nechtan Design server. In addition, Users may not
use the Nechtan Design server in order to (a) send e-mail messages
which are excessive and/ or intended to harass or annoy others, (b)
continue to send e-mail messages to a recipient that has indicated
that he/she does not wish to receive them, (c) send e-mail with
forged TCP/IP packet header information, (d) send malicious e-mail,
including, without limitation, 'mailbombing', (e) send or receive
e-mail messages in a manner that violates the use policies of any
other internet service provider, or (f) use an e-mail box exclusively
as a storage space for data (g) Offering for sale or soliciting
e-mail lists for the purposes of bulk e-mail.
DAMAGE OR LOSS OF
INCOME OR
PROFITS
Nechtan Design will not be held liable for any damages
or loss of income or profits resulting from:
CONTENT
RESPONSIBILITY
Nechtan
Design is not responsible for the content, accuracy or quality of
information obtained through its service, or information hosted on
its web servers. EACH CLIENT IS RESPONSIBLE FOR THE CONTENT ON THEIR
OWN WEB SITE REGARDLESS OF DESIGN SERVICES RENDERED.
OFF HOURS SUPPORT
In an effort to keep our fees to a minimum for our small business clients, Nechtan Design provides free technical support during regular business hours only unless specifically written into your contract. Our regular business hours are Monday through Friday 8:00 AM to 5:00 PM, excluding Nechtan Design holidays.
Off hours support prices are in effect any time that is not listed as regular business hours. Off hours support is charged at a rate of two and a half times your normal billing rate. To open a ticket off hours, all clients must use the ticketing system so that a support technician is properly notified of an incident.
Any situation where the client who opened the ticket is determined to not be at fault for the incident (i.e. a server crash) will result in NO CHARGES to that client.
NECHTAN DESIGN HOLIDAYS
Nechtan Design will be closed in observance of the following holidays:
PRIOR
AGREEMENTS
This Agreement supersedes all previous representations,
understanding or agreements and shall prevail notwithstanding any
variance with terms and conditions of any order submitted.
APPLICABLE
LAW, JURISDICTION, AND SERVICE
This agreement shall be governed by
the laws of Allegheny County Pennsylvania and the United States of
America. If any part of this Agreement is held to be invalid, illegal
or unenforceable, the validity, legality or enforceability of the
remainder of the Agreement will not be affected or impaired in any
way. Regardless of the place of signing this agreement, the client
agrees that for purposes of venue this contract was entered in
Allegheny County Pennsylvania, and any dispute will be litigated or
arbitrated the courts of Allegheny County Pennsylvania, USA.
Furthermore, defendants waive all objections to venue and acknowledge
that venue in any such litigation will be held in Allegheny County
Pennsylvania's courts. IN NO EVENT SHALL NECHTAN DESIGN'S MAXIMUM LIABILITY
EXCEED FIVE HUNDRED ($500.00) DOLLARS. FAILURE TO FOLLOW ANY TERM OR
CONDITION WILL BE GROUNDS FOR IMMEDIATE ACCOUNT DEACTIVATION.
Effective
Date
This Service Contract or Service Agreement was last updated
on June 23, 2008 and will be effective on June 23, 2008.
