Terms & Conditions
This Development Agreement ("Agreement") is made and effective upon the execution of a development contract by and between Pearse Street Consulting ("Developer") and you ("Client"). NOW, THEREFORE, in consideration of the mutual promises set forth herein, Developer and Client agree as follows:
1. Authorization. If the client is engaging Pearse Street Consulting ("Pearse Street"), a Massachusetts corporation, as an independent contractor for the specific project of developing and/or improving a website to be installed on the client's host server, then the client hereby authorizes Pearse Street to access this account, and authorizes the web hosting service to provide Pearse Street with "write permission" for the client's website directory, cgi-bin directory and any other directories or programs which need to be accessed for this project for the duration of this agreement.
2. Copyrights and Trademarks. The client unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Pearse Street for inclusion in web pages are owned by the client, or that the client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Pearse Street and its subcontractors from any claim or suit arising from the use of such elements furnished by the client. Pearse Street is not responsible for any content uploaded to the website by the client or its website users.
3. Initial Payment & Refund Policy. In some circumstances, it may be necessary for Pearse Street to schedule a commencement date for your project. If so, the Client agrees to deliver an Initial Deposit of ten percent (10%) of the Project Quote to Pearse Street upon execution of this Agreement. This Initial Deposit may be credited against the Project Quote, but is otherwise non-refundable, except where Pearse Street is unable to commence the project.
If an Initial Deposit is required, the Client must deliver a payment equal to thirty percent (30%) of the Project Quote prior to the Scheduled Commencement Date. If the Client fails to make such payment it shall forfeit the Initial Deposit and, at the sole and complete discretion of Pearse Street, either (i) this Agreement shall be declared null and void, or (ii) Pearse Street may postpone the Scheduled Commencement Date for up to an additional two weeks.
If an Initial Deposit is not required, and the project can be commenced forthwith, the Client must deliver a payment equal to forty percent (40%) of the Project Quote upon execution of this Agreement.
In addition to the terms related to the Initial Deposit, above, the Client acknowledges that twenty percent (20%) of the Payment due upon commencement (whether such payment equals thirty percent or forty percent of the Project Quote, as described elsewhere) shall be non-refundable and shall be in consideration of the initial administrative actions taken by the Developer.
If, at any time, the Client shall request that the Developer cease work, the Developer shall prepare and deliver an accounting of the work completed as of the date of the request. Work completed shall be billed at the current hourly rate, the total shall be deducted from payments previously made by the Client (such payments previously made shall exclude the Initial Deposit, if made, and twenty percent of the payment due upon commencement, as set forth above, which shall already have been deemed non-refundable and forfeited), and the balance of said payments returned to the Client.
If, at the time of the Client's request, the prepared accounting shows that work has been completed which is greater in value than the Client's previous payments, the Client shall be liable for the difference.
4. Acceptable Payment. Pearse Street accepts company check, wire transfer, money order, or major credit cards. Payments made by international clients must be made by wire transfer or credit card. Credit card authorization submitted authorizes Pearse Street to process deposit payments, progress payments and/or balance payments of agreed-upon services with the card information on file. Client may request to pay with an alternative method prior to project completion. Services requested by the client by phone or email beyond those detailed in an order form are subject to these terms. Payment options can be agreed upon in writing, including email correspondence, to include processing a credit card on file if requested. Payments made to Pearse Street shall operate as approval of any services or products, which may have been provided to the Client as of the date of the payment. Unless otherwise noted, the website investment reflects a flat quote for the features listed in this agreement. Additional fees and feature development require a mutually agreed upon change order.
Accounts overdue for more than thirty (30) days will accrue interest at the rate of 1.5% per month and may be subject to collection. Where Pearse Street delivers an account to collection, the Client will be responsible for all costs of said collection.
5. Unprofessional Conduct. Pearse Street reserves the right to refuse service to, or communication with, the client should the client engage in unprofessional conduct with Pearse Street or its subcontractors. Unprofessional behaviors may include but are not limited to profanity, discrimination, harassment, threats of slander, libel or blackmail, direct solicitation of its employees, or unethical practice. If a client engages in any of these or other unprofessional practices, Pearse Street will halt work immediately and resolve unfinished work per the Refund Policy.
6. Host Servers and Browser Compatibility. The website will be operational on a Cent OS based dedicated server with a LAMP (Linux, Apache, MySQL, PHP) stack. Pearse Street recommends, at minimum, a 2GB Media Temple dedicated virtual server. Pearse Street may recommend additional servers or server features based on the client's specific needs and server intensive features such as the use of third-party APIs, uploading or downloading high volumes of media (photos, videos, mp3s), Flash-based features and heavy user traffic. If the client opts for a non-Media Temple server with comparable specifications, the client acknowledges that additional development and server support may be required to ensure full functionality of the Finished Client Work on the client's host of choice. Any such additional support and development will be billed at the then applicable hourly rate.
7. Ownership of Finished Work. The finished work shall consist of the complete and assembled collection of web pages and applications produced by the Developer pursuant to the specific direction and requests of the Client ("Finished Client Work"). Upon final payment of the contract, the Finished Client Work shall be wholly owned by the Client. The Developer retains the right to display graphics and other Web design elements as examples of work completed in its portfolios and marketing materials.
8. Limitations. Client may alter, modify, or extend the Finished Client Work for its own use, or commission a third-party to perform modifications, though any such alteration, modification, or extension may void the warranty pursuant to ¶ 9.
9. Warranty of Functionality. For a period of three (3) months following launch of the "beta" version of the development project, (the "Warranty Period"), Developer warrants that the website shall perform in all material respects according to this signed contract when used with the appropriate host server and browsers noted in ¶6. The initial Warranty Periods shall be voided if the Client or an employee, subcontractor, agent, or other third party known by the Client, alters or modifies the website in any way. Consulting, technical and design support will be available during the Developer's regular business hours to address bug repairs, cross-browser compatibility support, graphic updates and advanced feature integration consulting. Integration of new features or functions beyond the original scope of work will be quoted on an individual basis or billed per the Developer's hourly rate. Notwithstanding anything to the contrary contained herein, neither the Developer, nor its employees or agents, warrants that the development project will be uninterrupted or error-free.
11. Warranty Disclaimer. DEVELOPER'S WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation of Liability. Developer shall not be responsible for, and shall not pay, any amount of incidental, consequential or other indirect damages, whether based on lost revenue or otherwise, regardless of whether Developer was advised of the possibility of such losses in advance. In no event shall Developer's liability hereunder exceed the amount of development fees paid by Client, regardless of whether Client's claim is based on contract, tort, strict liability, product liability or otherwise. The Client agrees to hold harmless, protect, and defend the Developer, its employees, agents, and subcontractors from any claim, suit, penalty, tax, fine, or tariff arising from the Client's use of the website in a manner which fails to comply with any laws, taxes, and tariffs which specifically apply to electronic commerce, or the sale of goods and services by electronic means.
13. No Assignment. Neither this Agreement nor any interest in this Agreement may be assigned by Client without the prior express written approval of Developer. If the Client attempts to assign this Agreement without the prior express written approval of Developer, either the Developer (if the Developer is the sole owner of the licensed product), or a third-party who is the sole owner of the licensed product (if the Developer has received a license for use of the product from said third-party), may seek redress and damages in a court of competent jurisdiction. A bona fide sale of the Client's assets to a third party shall not be considered an assignment under this provision.
14. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the state of Massachusetts. It is the express intention of the Developer and Client that the exclusive venue of all legal actions and procedures of any nature whatsoever which relate in any way to this Agreement shall be either the District Court Department of the Trial Court of the Commonwealth of Massachusetts, sitting in Lynn, Massachusetts, or the Superior Court Department of the Trial Court of the Commonwealth of Massachusetts, sitting in Salem, Massachusetts, or the United States District Court sitting in Boston, Massachusetts. The parties agree to waive their right to a trial by jury. The Client consents to said courts having personal jurisdiction over the Client in any action based on this Agreement. Client agrees that in the event of any breach or threatened breach by Client, Developer may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect Developer against any such breach or threatened breach.
15. Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
16. Headings. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
17. Entire Agreement; Amendment. The Developer and Client state that this Agreement (which is to be read and interpreted along with the development project agreement executed by the parties) is the final executed agreement between the parties, and that it fully memorializes the terms which the parties have reached as of the date set forth below. The parties may only amend this Agreement in writing.