Hypno Design, Inc.

Terms and Conditions for All Projects

Hypno Design, Inc., referred to in this document as ‘the Designer’. All work is carried out by the Designer is done so on the understanding that the Client has agreed to the Designer’s Terms and Conditions as set out below.

Client Project Acceptance

At the time of providing a project quote, the Designer will provide the client with a written project estimate or project quotation. This project estimate or project quotation is also (often) a Job Order that the client can sign to indicate they wish to proceed with the Designer to create the Work. By accepting the estimate or quotation, and by signing a Job Order, the client is agreeing to the Terms & Conditions set out herein.

Materials the Client is Responsible for Providing to The Designer for All Projects

You, the Client agree to provide the Designer with the specific text for the project (copy), all images and all information that is required in order to complete the work, or to advise us as to where we can locate such materials. Additional expenses for photography, illustration, copy writing, music, video, or any other content creation or procurement is not included, and will be charged in addition to the project costs, if the Designer needs to purchase these on your behalf. The Designer does not accept responsibility for your work not being completed by a specific date if we are unable to secure necessary and/or suitable information and/or materials from you. Having all your materials ready, means that we have all of your materials, and can complete our work. This includes, data, and user information for data driven websites, that require pre-populating with this data to be functional.

If Client cannot supply the materials, information, data and substance for your project that you wish to feature in the work we are creating for you, we will do what we can to obtain it for you, and assist, but in no way do we accept any responsibility for errors, omissions, discrepancies, deletions, or inclusions of corrupt data, and materials, which may be present on the final project. All time taken for us to gather, organize, input, store, and collect the data, and materials as well as any time required to correct errors, omissions, discrepancies or bad data, which have arisen through the Client’s not being able to provide us with the proper materials and information, will be charged at our hourly rate. The Designer accepts no responsibility for any delay caused in providing you with the final work as a result of your supplying us with insufficient or unsuitable materials, data, photography, music, video, or other media that is pertinent to your project.

We make every effort, and strive to create your project with the best end results, and professional results in mind, but we do not accept any responsibility for imperfection in the work caused by defects in or unsuitability of materials that the Client has provided for the project.

PRINTING SERVICES (External Printers Vendors)

Printers Proofing Agreement

If the Designer has provided you with a print proof, your signing of this agreement confirms that you agree to the design, color, typography, photography, illustration, text content, and all the contents of the printed document as depicted on the proof. By signing this agreement, you release the Designer of all liability for any errors, omissions or discrepancies which may be indicated, and shown on the proof. Once you have signed this agreement and proof if supplied, any further changes required to the final product, may incur additional fees. Signing this printers proof also makes you unable to hold the Designer responsible for anything you are not happy with in the final product. This agreement holds the Designer harmless for any aspect of the work, which you later claim to be dissatisfied with. Your agreement with this contract means that, as long as the finished product is consistent with the proof that was supplied to you, you must pay in full for the work we have produced for you, and you are fully responsible for the costs of any printing acquired on your behalf, or for the costs of the printing if you are handling the management and payment of your own printer. These terms are final and non-negotiable.

Making Changes After Proof Stage (for Print Projects Only)

If any change is requested, the Designer will attempt to make to make the correction before the printing begins, but there is no guarantee of this. We do not accept responsibility, under any circumstances, for any mistakes present on the completed work, as the signing-off of a proof releases us of all liability (see “Printers Proofing Agreement” above). Once the printers proof is signed off or agreed to (this may also be a verbal agreement indicating approval), or via email, any charge we incur for producing your project will be the Client’s responsibility, and this charge is passed on to you as part of the total charge for the project.

Printing Quality (for Print Projects Only)

Every effort will be made to obtain the best possible color reproduction on client’s work but because of the nature of the different types of printing processes, and the different types of printers doing the printing work involved, the Designer doe not ever guarantee an exact match in color or texture between any materials that you may have supplied us, and the final printed product.

Printing Press Checks

Unless otherwise agreed to, Printing Press Checks are billed at our hourly rate, and the Client is responsible for any travel fees related for our travel to the Printer, to be there for the Press CHeck, and to review and approve the quality of the Printing.

Payment Terms (for Print Projects Only)

The client agrees to pay a deposit of 50% for the Design Work upon signing a Job Order/Estimate from us, and to pay the outstanding balance due on completion of the Design Work. All printing deposits must be received for 100% of the estimated printing costs. If there are any overages (usually up to 10% possible) the Client is responsible for this additional costs for printing. The client agrees to adhere to the terms stated on the invoice. All payments are non-refundable.

ONLINE & INTERACTIVE SERVICES

Website Updates, Support & Maintenance

The Designer offers various levels of ongoing website support, maintenance and updates, and may offer you a Quote or Estimate/Job Order for a plan for your website. This agreement is usually for a one-year period, and is payable either monthly, quarterly, or yearly as indicated in the agreement. If you wish to introduce new material in the form of additional website pages, additional functionality not already contained in your website or interactive project, or changes in structure requiring programming, information architecture, and meetings and planning, this will require a separate, new Estimate/Job Order be completed or that hours may be removed from your updates support and maintenance package if you have this type of ongoing plan with the Designer.

 
Website Hosting

Website Hosting for websites is charged at agreed rates as stipulated in our Quote, Estimate/Job Order. Clients nor any third parties will be granted FTP (File Transfer Protocol) access to our servers or to any of our partners or providers servers. Where a CMS (Content Management System) license and functionality is purchased, hosting is charged at the agreed rates as stipulated in our Quote, Estimate/Job Order. One POP email account is provided, all additional email addresses will be forwarded to this or another email address which must be provided by the client. Additional email setups, and assistance may incur additional fees.

The Designer is not responsible, and you agree to not hold liable, for any loss of business through interruption or loss of emails, bounced or undeliverable messages or any unforeseen errors or service interruptions of the electronic mail. The Designer is also not responsible for the content of emails including attachments and viruses, content, or any content that may be determined as illegal, fraudulent, or misleading.

Canceling your website will result in the shutting down of the hosting package after 48 hours. All hosting packages are non-refundable, and non-transferrable.

Website hosting will be automatically renewed as part of the annual Website Hosting agreement we have in place with you, if you have a agreement for hosting with us. A notice period of not less than 14 days will be given at the time invoicing. Clients wanting to cancel their renewal must do so in writing within this time period, otherwise the Website Hosting charges will become payable and then cancellation will NOT be accepted, as the Designer will have paid for hosting charges on the Client’s behalf.

Domain Name(s)

Domain name(s) of the client’s choosing (are subject to availability, and pricing) may also be provided as part of the hosting package we provide. This cannot be a domain name already registered with another provider, but must be an additional one or a new one. Delay in websites going live because of administrative issues will not result in a delay in the site going live on the domain name that we have purchased on your behalf.  Once the website we have created for you is Live on the final domain name, all remaining payment, and reimbursement for expenses incurred on your behalf (if applicable) is due. Payments are due on receipt, of invoices that we send you, unless other terms are indicated. It is not the Designer’s responsibility if there is a delay in the transfer of a domain name held with another provider, and this will not be accepted as a reason to delay payment in full of all outstanding payment due to Designer.

Administration Systems, Core eCommerce Components, Custom Web Applications and Custom Websites Systems (Systems)

Any and all systems, including eCommerce, Custom Developed Website Applications, and Custom Website Systems and Content Management Systems (CMS), provided to the client remain the intellectual property of the Designer and as such no access is given to the source code or database, and no transfer of copyright is granted at all. Ownership of the core code, HTML, PHP, and database programming remain the property of the Designer. Systems we design and develop, and produce for the Client project cannot be transferred away from our provided hosting solution. Our websites and eCommerce, Custom Developed Website Applications, and Custom Website Systems and Content Management Systems (CMS) are built on the Linux PHP, MySQL based platforms and may not work on Windows servers or other non-Linux systems. No warranty is given or implied. As a Client and/or as an Administrator the Terms of Use for our Systems are clearly stated, and require you to agree to them the first time you log in to them. These Terms of Use Agreements may change from time to time, and if so will be reflected in the Login area of the Website, and eCommerce, Custom Developed Website Applications, and Custom Website Systems and Content Management Systems (CMS). The System  operates  under  a  non­exclusive,  limited  use  license in  which  we  retain  the  intellectual  property  rights  to  this  system  which  we  have  created  for  your  licensed  use. The  terms  of  this  license  are  as  follows  and  you  are  bound  to  this  agreement  whenever  you  use  our  Custom Web  Application  system:

1.  You  cannot  use  this  same  Custom  Web  Application  system  under  a  domain  name  other  than  the  one  for which  it  was  originally  installed  [Your Domain].  If  you  need  to  transfer  this  system  to  a different  domain  name,  please  contact  us.

2.  You  cannot  resell  this  Custom  Web  Application  system  since  the  ownership  rights  for  the  core  web application  code  are  retained  by  us,  the  creator of  this  system.  You  can  however  transfer  this  website  to  a  new  owner,  for  example  in  the  event  of  the sale  of  your  company  to  a  new  owner,  but  the  core  web  application  code  copyright  for  this  backend system  and  it’s  design  for  the  Custom  Web  Application  system  we  have  developed  is  still  retained  by  us.

3.  You  cannot  modify  this  Custom  Web  Application  system  and  sell  it  as  your  own  system.  If  you  wish  to fully  own  this  system  so  you  may  modify  and  sell  it  at  will,  please  contact  us  to  discuss  the  purchase  of an  exclusive  licensing  agreement.

4.  You  may  modify  any  of  the  code  of  this  Custom  Web  Application  system,  but  doing  so  voids  any warranty  and  no  longer  entitles  you  to  system  updates.  Modified  code  cannot  be  used  on  another  site  or resold,  as  per  the  terms  above.

5.  This  system  that  we  develop  and  license  to  you,  including  any  custom  modules  we  create,  remains  our property  which  we  may  resell  at  will.  Exclusive  licenses  are  available  at  additional  cost.  This  is  not  a work  for  hire.

6.  Any  patented,  copyrighted  or  proprietary  algorithms  or  intellectual  property  (including  digital  content) that  you  provide  which  is  incorporated  into  the  system  we  build,  along  with  any  data  generated  by  the system,  is  owned  by  you  and  is  not  subject  to  the  above  restrictions.  All  text,  photos,  and  video  content that  you  provide  as  data  is  owned  by  you  and  is  not  subject  to  the  above  restrictions.

7.  We  reserve  the  right  to  deactivate  your  license  as  well  as  suspend  your  access  to  this  Custom  Web Application  system  for  failure  to  meet  any  of  the  above  Terms  of  Use.  In  addition,  your  license  may  be deactivated  for  failure  to  pay  any  outstanding  balances  or  for  any  actions  that  you  take  which  render our  systems  insecure.  Unlicensed  systems  are  not  entitled  to  warranty  benefits.

Any  website  that  operates  without  an  authorized  license  is  subject  to  having  their  Administration  and  system  update access  denied  as  well  as  prosecution  to  the  fullest  extent  of  the  law.

E-commerce/CMS

E-commerce/CMS systems will be provided as an empty shop/site, and training will be given to the client(s) on using the system. A delay in the client populating the e-shop/site will not be accepted as a reason for delayed payment as, once it is ready to be populated and training has been given, the DesignerDesigner’s job is done. The Designer offers a service to populate the client’s shop site/CMS on their behalf, and prices are available on request for this service. Additional training and support packages are available, and again the prices for these services are available on request.

Warranty

Our websites and eCommerce, Custom Developed Website Applications, and Custom Website Systems and Content Management Systems (CMS) are  warranted  against  code  defects  (bugs)  for  one  (1)  month  from  the assigned  warranty  start  date  or  starting  from  the  initial  administrator  user  agreement  date  under  the  current server  environment  and  database  setup.  The Designer  will  promptly  remedy  software  bugs  directly  related  to the  work  we  have  produced  at  no  charge,  within  this  one  (1)  month  period.  We require any communication regarding bugs be submitted in writing. In  addition,  The Designer  may provide  updates  to  improve  the  security  and  functionality  of  your  system  at  no  additional  charge  for  as  long  as you  are  under  warranty.  These  updates  are  available  in  the  Status  /  Links  area  of  your  Admin  Home  page. Please  report  any  bugs  as  well  as  suggestions  for  improvements  to  the Designer.  Please  note  that  any  fixes to  the  system  required  because  of  a  voided  warranty  will  be  charged  at  our  current  hourly  rate.

Website Testing and Final Approval by Client

The Client acknowledges that it is the Client’s responsibility to ensure that the design, programming, and all functionality of the Licensed Materials meet the Client’s project’s requirements. This means that it is the Client’s responsibility to test all functionality of the website, and it is also the Client’s responsibility to provide a written approval of the website prior to website launch Live to the Public. Client’s failure to provide written approval of the website, causing delay in launch of the project or causing any postponement of implementation of features or preventing any additional functionality rolling out are the full responsibility of the Client. You agree that the Designer will not be held responsible for any delays in launching the website, or releasing functionality due to your inability to provide testing, and approvals.

If a problem is found upon investigation not to be the Designer’s responsibility, we may charge the Client immediately for all reasonable costs and expenses which we incur by investigating, troubleshooting, and any time spent in consequence of such investigations and troubleshooting.

After a client has signed off approval for the look and feel stage of the website and has instructed the Designer to proceed to program, develop and build the website project, any changes requested to the layouts, the overall style or design of any approved features, layouts, or components of the project, requested by the client will be charged additionally at our hourly rate. Once a complete website, has been made live on the final website server, meaning that it is open and available for the public to see and use, on the clients instruction, it is deemed that the website and/or the website content have been approved and the work is therefore completed.

Payment Terms (Websites, Custom Development, and Interactive Projects)

When we have completed designing, programming and building your site, we will put it live on our own server under a temporary name which we will give you. After we have informed you of the development server’s location, you must review the website and ask for any amendments to be made within two weeks. The site can only be kept live for a longer period of time, if you specifically request, and provide a reasonable explanation for this request. We will place, and test the site live on its own domain name, and you are not permitted to point your own domain name to the test site on the Designer’s servers. If this is found to be the case, we will remove the site from our server.

GENERAL

Copyright

Unless negotiated and agreed in writing, all copyrights of general artwork, commissioned artwork, illustrations, logo design, website design and website programming, and any and all systems, including eCommerce, Custom Developed Website Applications, and Custom Website Systems and Content Management Systems (CMS), and any copy provided by the Designer belong to the Designer.

If you supply us with material, it is your responsibility to obtain all necessary copyrights for its use, and model releases (if any persons are visible in photography) and we assume that you possess these, and by providing materials to us have obtained all the necessary licenses and releases. In such cases where the copyright belongs to you, these materials are yours, and you fully retain the copyrights to these materials and content. By your use of our website, and entering into a Job Order agreement with us to produce a project for you, you agree to indemnify the Designer from any claim which arises regarding the use of material with which you supply us, and agree to pay any attorney fees, or liability judgements, that result from your supplying us with materials for which you do not have the legal rights to use, or copyright, or model releases. We reserve the right to use any artwork or printing we produce for the purposes of promoting our services unless you request otherwise in writing, and we agree to this in writing.

Estimates/Job Orders, Quotes

All estimates for our creative work are valid for thirty (30) days, after which time all proposed work need to be requotes. We take no responsibility for a re-quoted price differing from an original Estimate/Job Order, and cannot guarantee that the price will remain the same.

Illegal Material, Infringement, and Limitation of Liability

The Designer reserves the right not to print, post or include in final project materials any and all matter deemed illegal, libelous or offensive, or which may be an infringement of the proprietary systems, materials or other rights of any third party. This agreement indemnifies the Designer in respect of any claims, costs and expenses arising out of any libelous matter or any infringement of copyright, or for patent violation, design theft, or of any other proprietary and/or any other personal rights contained in any of the material printed, posted, or included in online electronic presentation, or inclusion in any content produced for the client. The indemnity shall extend to any and all amounts paid on a seeking an attorney’s assistance and advice in the settlement of all and any claim(s).

Consequential Loss

The Designer accepts no liability, and will not be held responsible, whatsoever for consequential or third party losses, resulting from a delay in delivery of the project, whether that is a print project, or an online website project, or eCommerce System, nor does the Designer accept any liability for loss in service provided by the Designer howsoever caused.

Financial Loss

The Designer accepts no liability whatsoever for financial loss or for the loss of earnings arising from products or services provided by the Designer. The Designer accepts no liability, and will not be held responsible, whatsoever for any losses, resulting from a delay in delivery of the project, whether that is a print project, or an online website project, or eCommerce System

Force Majeure

The Designer accepts no responsibility if we are unable to carry out any provision of the contract for any reason beyond our control including (without limiting the foregoing) Act of God, war, legislation, flood, fire, plague, drought, failure of power supply, lock-out, strike, civil strife, or any other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the contract. During the continuance of such a contingency you may, by written notice to ourselves, elect to terminate the contract and pay for work done and materials used, but subject thereto shall otherwise accept delivery when available.

Indemnification and Liability

The Designer shall not be liable for any loss to the client arising from delay in transit caused by circumstances beyond the Designer’s control.

By Client. Client agrees to indemnify, save and hold harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Designer shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Designer provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Designer in providing such assistance.

By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Designer in writing of the claim; (b) Designer shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Designer with the assistance, information and authority necessary to perform Designer’s obligations under this section. Notwithstanding the foregoing, Designer shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Designer.

Settlement Approval. The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.

Limitation of Liability. The services and the work product of Designer are sold “as is.” In all circumstances, the maximum liability of Designer, its directors, officers, employees, design agents and affiliates (“designer parties”), to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of Designer. In no event shall Designer be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Designer, even if Designer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy

Jobs Killed or Postponed by the Client

Jobs killed or postponed by the client during production will be invoiced at our full hourly rate based on the number of hours worked and our outlay on materials. The invoice we issue must be paid in full together with any taxes that are due accordingly. A job that is killed by the client may incur an additional kill fee of up to 75% of the value of the proposed work, and be applied to the remaining balance. All Work done to date for the project is due payable on receipt of invoice, and no other payment terms will be granted.

Client acknowledges and agrees that Designer has reserved availability of Designer and/or Designer’s employees and/or sub contractors (collectively “Designer’s personnel”) to work on each Proposal for the projected time required for the Services, and that by reserving such availability, Designer’s personnel necessarily forgo opportunities to work on other projects for other clients. Accordingly, Client agrees that, in the event a Project is canceled for any reason other than a material breach by Designer, Client agrees that it would be impracticable and extremely difficult to calculate the actual damages resulting from such lost opportunities, and Client agrees to pay to Designer a kill fee in the amount of up to 75% which Client agrees represents reasonable compensation for such lost opportunities.

ACCREDITATION/PROMOTIONS

All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Designer’s name in the form, size and location as incorporated by Designer in the Deliverables, or as otherwise directed by Designer. Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.

Credit Terms

Any invoices not settled within the agreed credit terms (if we have so granted payment terms to the Client) of 30 days from invoice date, will be charged and overdue rate at 2% above the current prime base rate at the time and an administration fee to cover the debt recovery costs. If a credit card is used for payment a 3% (three percent) surcharge for credit will be applied to the cost of the project, billed to the client.

Governing Law and Dispute Resolution.

The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of New Jersey without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of New Jersey. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Designer shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.

Updating This Agreement

Hypno  Design  reserves  the  right  to  modify,  update  or  change  these  Terms  of  Use  at  any  time  and  for any  reason.  If  such  changes  occur,  you  will  be  held  to  agree  to  these  new  terms.  In  addition,  we  reserve the  right  to  void  your  license  if  you  break  any  of  the  above  terms  or  do  anything  to  interfere  with  the security  and  integrity  of  our  Systems.

First Issued with effect November 26, 2011
Updated:  January 2, 2016