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Congratulations on choosing Innovative Media Arts
Website Design and Development!
Please review
these policies carefully as they are the terms of sale that govern your
purchases at the Innovative Media Arts (IMA) Store. They set out your rights
and obligations with respect to your purchases, including important limitations
and exclusions, such as those in IMA product warranties. Your placement of an
order at the IMA Store constitutes your agreement that these policies apply
to the order, so be certain you understand them before you place your order.
Please note there
may be limitations on your right to return and obtain a refund for products/
services.
Please
note that IMA may not permit the return of or offer refunds for products and
or services that are custom designed to your specifications, including
personalized products.
1. Acceptance of Terms
By accepting Innovative Media Arts™
Web Solutions’ (IMAWS) Terms of Service (TOS) electronically or in writing,
and/or by using IMA’ services, including but not limited to, submission of
content to IMA’ design department, payment or authorization of payment, you
(Client) agree to be bound by the following terms and conditions. Client also
agrees that Client’s electronic acceptance of this TOS shall have the same
force and effect as if Client had agreed to this TOS in writing.
IMA provides its services to Client
subject to the following TOS, which may be updated from time to time without
notice. Client may review the most current version of the TOS at http://www.innovativemediaarts.com/tos.html.
Failure to comply with the TOS may result in account termination. By
using IMA’ services Client agrees to (and hereby signs) the most current
version of the TOS. If Client does not expressly reject the TOS and cancel
Client’s account within 24 hours from the date of initial sale or upon
receipt of products or services, whichever comes first, Client agrees to (and
hereby signs) the TOS and IMA is instructed to commence work on the Client’s
website as if Client had expressly accepted the TOS.
Client’s acceptance of the TOS
is binding upon all IMA services including the purchase of additional
services or additional websites or accounts at a later date.
2. Description of Service
IMA designs and hosts websites and
provides other website-related services, including, but not limited to,
support and modification of websites, e-commerce, flash, web-traffic
reporting, database development, easy interface for updating the website,
email accounts and additional website-related services. Client understands
that IMA’ services may include certain communications from IMA such as
advertisements, notices, service announcements and newsletters. Client is
responsible for obtaining access to IMA’ services that may involve 3rd
party fees (including but not limited to, ISP, merchant accounts and
gateways). Client is also responsible for all equipment and software
necessary to access IMA’ services.
3. Sales to End Users Only
The
IMA Store sells and delivers products/services to end user customers only.
You may not purchase for resale. IMA reserves the right to refuse or cancel
your order if IMA suspects you are purchasing for resale.
4. Custom-Configured/ Designed
Products/ Services
IMA
offers certain products that may be custom-configured and or designed to your
specifications, and IMA encourages you to review your order carefully. Since
a custom-configured/ designed product is crafted to your specifications, the
order cannot be changed, modified, or canceled once your order is in
production. Please review IMA’s refund policy carefully before ordering.
5. Payment Methods
IMA
allows you to make your purchases using any of the payment methods described
below. Please read carefully our policies with respect to payment methods
before you place your order.
Credit, Debit, and
Check Cards
Whether you order online or phone in
your order to IMA, you may pay by credit, debit, or check card. When you
provide IMA with your card information, IMA will obtain a pre-approval from
the card company for the amount of the order, which may result in a
corresponding block on your available credit while the pre-approval remains
in place. IMA will not bill your credit card or process a transaction under
your debit or check card for products requiring physical shipment until your
order ships.
The IMA Store accepts PalPal
payments, Visa, MasterCard, American Express, and Discover cards. IMA is
unable to accept credit, debit, or check cards associated with a billing
address outside of the United States.
Debit cards and check cards may have
daily spending limits that could delay the processing of your order
substantially.
The IMA Store requires the credit,
debit, or check card security code for your card for any online purchase to
protect against the unauthorized use of your credit card by other persons.
The security code is an individual three- or four-digit number specific to
your card that may be printed on the face of your card above the embossed
account number (if American Express), or on the back of your card, on the
signature panel (if Visa, MasterCard or Discover).
7. Sales Tax
In
addition to the price of your purchases, IMA will charge you sales tax on
applicable items based on your shipping address and the sales tax rate in
effect at the time your order is billed. If the sales tax rate for the state
to which your order is being shipped changes before the product is shipped,
the rate in effect at the time your order is invoiced will apply.
8.
Order Processing
The
estimated delivery date on your order is based on product/service
availability, payment processing time, and consolidation content processing
time and does not include transit time on products requiring shipment. IMA
will begin data processing for orders placed on weekends or holidays within
the first 12- 24 hours following placement of the order but not later than
the next business day. Business days are Monday through Friday, excluding
federal holidays.
Your Turn-Around-Time (TAT) on items
that are offered with scheduled delivery and or quick completion based on the
specific TAT product or service must be received before 2:00 p.m. (PST),
pending payment processing, for there to be adequate remaining time in the
day for your order to be dispatched. Overnight shipping is not available on all
products. No shipments can be made to United States territories, or addresses
outside the United States. Please review the Product Availability section
below for more information regarding order processing and product/ service
availability.
9. Product/
Services Availability
IMA makes every effort to deliver
your product/ service according to the estimated lead times provided by the
IMA Store at checkout. The estimated lead times are in business days (Monday
through Friday, excluding federal holidays). If you have requested a complete
shipment or delivery, please add three to four additional days for applicable
transportation and or order consolidation processing.
Although IMA makes every effort to
deliver your order according to the lead-time provided, delivery dates may
change due to changes in supplied content. If the lead-time changes, IMA will
contact you via email and provide a revised delivery estimate.
Given the popularity of some products/
services, IMA may restrict the number of such items that you may purchase.
IMA will post limitations on quantity on the IMA Store web site or will
inform you of product/ service purchase limits at the time it processes your
order. IMA reserves the right to change quantities available for purchase at
any time.
IMA makes every effort to supply you
with the products and services you order, but there may be occasions when IMA
confirms orders but learns that it cannot supply the ordered products/
services, either at all or in the quantities ordered. These occasions can
include when IMA when IMA cannot source content for the customization you
ordered, or when there was a pricing error at the IMA Store when you ordered.
In those circumstances, IMA will contact you to inform you and, if you are
interested, IMA may suggest alternative products/services that might meet
your needs. If you do not wish to order alternative products/ services, IMA
will cancel your order for products/ services IMA cannot supply and for any
other products/ services that you no longer wish to order as a result, and
will refund your purchase price for those products/ services.
10. Prices
The
IMA Store endeavors to offer you competitive prices on current IMA products/
services. Your total order price will include the price of the product/
service on the day of order placement plus any applicable sales tax and
shipping charges. IMA reserves the right to change prices for products
displayed at the IMA Store at any time and particularly to correct pricing
errors that appear on the Store.
Should IMA reduce its price on any
shipped product within 5 calendar days of shipment, you may contact IMA Sales
Support at Support@innovativemediaarts.com to request a credit of the
difference between the price you were charged and the current selling price.
To receive the credit you must contact IMA within 5 calendar days of the
price change.
11. Other Terms and Conditions
IMA is not responsible for
typographical errors. IMA reserves the right to cancel any order you have
placed if there was a typographical error on the IMA Store concerning the
pricing or availability of any item you ordered when you placed the order.
IMA reserves the right to change the
terms and conditions of sale at the IMA Store at any time.
IMA may make changes to any products
or services offered at the IMA Store, or to the applicable prices for any
such products or services, at any time, without notice. The information
provided at the IMA Store with respect to products and services may be out of
date, and IMA makes no commitment to update the information provided at the
IMA Store with respect to such products and services.
IMA reserves the right to do any of
the following, at any time, without notice: (1) to modify, suspend or
terminate operation of or access to the IMA Store, or to any portion of the
IMA Store, for any reason; (2) to modify or change the IMA Store, or any
portion of the IMA Store, and any applicable policies or terms; and (3) to
interrupt the operation of the IMA Store, or any portion of the IMA Store, as
necessary to perform routine or non-routine maintenance, error correction, or
other changes.
To the extent permitted by law, all
sales at the IMA Store are governed by California law, without giving effect
to its conflict of law provisions.
If any of the aforementioned policies
are held by a court or other tribunal of competent jurisdiction to be void or
unenforceable, such policy shall be limited or eliminated to the minimum
extent necessary and replaced with a valid provision that best embodies the
intent of the policy, so that the policies shall remain in full force and
effect.
IMA’s failure to insist on or enforce
strict performance of these policies shall not be construed as a waiver by
IMA of any provision or any right it has to enforce these policies, nor shall
any course of conduct between IMA and you or any other party be deemed to
modify any provision of these policies.
These policies shall not be
interpreted or construed to confer any rights or remedies on any third
parties.
12. Electronic Delivery Policy
IMA
is a website-related business and communicates with its Clients
electronically. When Client accepts this TOS Client consents to receive
electronically from IMA any notices, agreements, disclosures, or other
communications (Notices). Client agrees that IMA may send electronic
Notices in either of the following ways. 1) To the email address
provided to IMA at the time of sale or 2) to the new email address
account Client set up through IMA. Client agrees to check the
designated email addresses regularly for Notices. Notice from IMA is
effective when sent by IMA, regardless of whether the Notice is read or
received by Client.
13. Privacy Policy
Personal data and certain other
information about the Client are subject to IMA’ Privacy Policy. For more
information see the privacy policy at http://www.innovativemediaarts.com/privacy.html.
By using IMA’ services Client also agrees to the most current version of IMA’
Privacy Policy.
14. Call Monitoring and Recording
Privacy Statement
As part of IMA’ commitment to providing
the best possible service IMA may monitor and record phone calls answered by
IMA and made by IMA. IMA may also archive recorded voice mail messages. IMA
records calls for training purposes, to improve customer service, and to ensure
an accurate record of Client calls, which may be needed to support
transactions that take place over the phone. This allows IMA to identify how
IMA can better serve its customers.
15. Unacceptable Practices
As IMA strives to offer the very best
service, there are certain guidelines and policies that must govern IMA’
efforts and relationships with its clients. Practices that are in violation
of these guidelines and policies are strictly forbidden and will result in the
immediate termination of IMA’ services. Such decisions are at the sole
discretion of Innovative Media Arts. Unacceptable practices include, but are
not limited to:
- Adult or pornographic
material including, but not limited to, sexually explicit or suggestive
material
- Sexually oriented
products or material
- Nudity, including
airbrushing (exceptions granted on a case-by-case basis if for medical
or artistic purposes)
- Lingerie websites
- Offensive or
otherwise distasteful material
- Content or language
that is harmful to minors in any way
- Content or language
that may be interpreted as harmful to animal welfare and or the
protection of wildlife in anyway
- Bulk emailing tools
- Distribution of
internet viruses or other harmful or destructive activities
- Hacking and cracking
- Scams or phishing for
personal information
- Solicitation of funds
other than for legal charitable organization
- Gambling, gaming,
lotteries, and like activities
- Harmful, threatening,
violent, abusive, harassing, tortuous, defamatory, vulgar, obscene,
libelous, invasive of another’s privacy, hateful, racial, chauvinistic,
ethnically offensive or otherwise objectionable content or language
- Defamatory, hateful
or revenge content or language.
- Aids to pass drug
tests or aids to pass lie detector tests.
- Content or language
that is harmful to minors in any way
- Illegal activities
such as ponzi schemes, pyramid schemes, fraudulent charging of credit
cards, copyright violations, plagiarism, software piracy, and all
unauthorized use of materials or content that infringes on third
parties’ intellectual properties
- MLM without a
legitimate product or service or with a front product or service
- Illegal drugs or drug
paraphernalia
- Prescription drugs
and related content
- Miracle cures
- Fake documents
- Fireworks,
pyrotechnics or weapons.
- Intentional or
unintentional violations of any applicable local, state, national or
international law.
- Reselling email
accounts or hosting accounts to third parties
- Reselling of any IMA
services including, but not limited to, design services, updates, and other
IMA products or services to third parties without a written re-seller
agreement.
- Spamming and all
other forms of unsolicited messages including, but not limited to, spam,
chain letters, and junk email
- Links to other sites
that are in violation of IMA’ policies and guidelines
- Other activities,
whether lawful or unlawful, that IMA deems to be in poor taste or that
reflect adversely on IMA or IMA’ other clients
- IMA reserves the
right to refuse to design or host an account at its sole discretion at
anytime.
As an IMA’ Client, you agree to
conduct your business in a legal and professional manner. Client understands
that all information, data, text, software, music, sound, photographs, video,
messages and other material (Content) on Client’s website is the sole
responsibility of the Client. Client is fully responsible for all website
content and agrees to hold IMA harmless in the event of third parties’ legal
issues brought against Client for Client’s business practices. IMA retains
the right to terminate any accounts that are in violation with the letter or
spirit of this TOS. IMA may also at its sole discretion and at any time,
discontinue providing services, or any part thereof, with or without notice.
If an account is terminated by IMA for a TOS violation the Client is not
eligible for a full refund and any refund is subject to the Cancellation Fee
and Refund Policy. (See Termination)
As an IMA’ Client you may have access
to editing tools for your website. Client may edit, add or delete content to
the website at anytime. With this understanding IMA may or may not pre-screen
content. IMA shall have the right (but not the obligation) to pre-screen and
refuse or remove any content at its sole discretion. Client agrees that
Client bears all risks associated with the use of all content, whether edited
or written by IMA or not, including any reliance upon accuracy, usefulness or
completeness.
Client acknowledges that IMA may
access, preserve, and disclose Client’s account information and content if
required to do so by law or in a good-faith belief that such access,
preservation, or disclosure is reasonably necessary to comply with legal
processes, enforce the TOS, provide customer service or protect the rights,
property, or safety of IMA and the public.
16. Intellectual Property Policy
IMA respects copyright laws and the
intellectual property of others. IMA may terminate accounts for copyright
infringement. If you believe your work has been copied and is accessible on
an IMA’ website please see IMA’ Intellectual Property Policy
http://www.innovativemediaarts.com/IPR.html
IMA will not use copyrighted or
trademarked materials on any Client’s website without the express written
consent of the copyright or trademark owner. It is Client’s responsibility to
ensure that all content submitted to IMA is original content and free from
third-party copyright or trademark protection, or to obtain permission to use
from the copyright or trademark owner. Client assumes full liability for any
copyright or trademark infringement of Client’s website on any third-party
copyright or trademark, including, but not limited to, any infringement due
to website content, website design or the look and feel of Client’s website.
(See Unacceptable Practices)
Customer content that is sent to IMA
will remain the intellectual property of the Client. IMA does not return
original content to the Client. Unless a request to return the original
content to the Client is made in writing upon submission of the content, the
content will be destroyed. IMA will attempt to honor requests to return
original content; however, HWS has no liability and does not guarantee the
return of any content to Client.
17.
International Use
Recognizing the global nature of the internet, Client agrees to comply
with all local rules regarding online conduct and acceptable content.
Specifically, Client agrees to comply with a) all laws and regulations
regarding the transmission of technical data exported from the United States,
or the country in which Client resides and/or transacts business, and b) all
laws and regulations regarding the collection and processing of personal
data, including those relating to the transborder transfer of personal data.
18. Interstate Communications
Client acknowledges that by using IMA’
services Client will be causing communications to be sent through IMA’
computer networks, which may be located throughout the United States. Due to
the nature of electronic communications, even communications that seem to be
intrastate can result in the transmission of interstate communications. Client
acknowledges that use of IMA’ services results in interstate data
transmissions and may result in transborder transfer of personal data. Client
hereby consents to the collection; processing and transborder transfer of
such personal information as Client may provide or make available to IMA.
19. Website Construction Procedure
With help and input from the Client,
IMA will prepare the appropriate custom design and work with the content
provided by the Client for development of the site. Client must submit
content to the design department before site construction begins on the
custom website. Client must submit content through the Custom Date Form (CDF).
Client must electronically accept the TOS before access is granted to the CDF.
After content is submitted by the Client the website is developed. Prior to
the website being taken live the client will receive a missing information
notification if content is incomplete. Client will then have a specific time
period relative to Turn-Around-Time (TAT) of specific product or service in
process to submit complete content. If complete content is not received the
website will then be taken live “as-is”. If the website is taken live without
all of the pages completed due to incomplete content those pages may be
banked and developed in the future using Client’s design time.
In submitting content through the CDF, links to sample sites the Client likes
are for general information purposes only and assist IMA with the design of
the Client’s custom website. The functionality and detail of the sample sites
will not be duplicated unless such functionality and detail are specifically
included and itemized in IMA’ invoice.
The design and content layout are completed by the designer and presented to
the Client for approval. After the Client approves the website, the website
will go live. IMA may review the text before site goes live to correct any
possible errors. IMA will not be held liable for accuracy of information,
typos, or spelling errors in any of the content approved by the Client and
published on the website. Client will be notified by email that the website
is now live.
Client understands, agrees and acknowledges that IMA does not guarantee a
time frame for completion of ANY custom website. A custom website cannot be
completed without submission of complete content, design approvals and
participation from the Client. If Client continues submitting additional content
throughout the design process, the design time frame is increased. If Client
does not submit complete content and IMA is not able to start or complete the
custom website design, Client is still responsible for all fees incurred
including, but not limited to, set-up, enhancement and monthly update and or
hosting charges that begin accruing from date of sale. If Client’s website
requires custom programming, functionality, flash, e-commerce or the use of a
database, the overall development time will be extended.
Client is provided with a space holder immediately after sale of combined web design/hosting package. Upon request,
client is also provided with an optional welcome website shortly after the
initial sale. The welcome website is a temporary website Client may send
customers to while the custom website is being built. Client may choose not
to have a welcome website if so desired
20. Client Approval
Client is responsible for testing the
functionality of the website upon IMA’ request for approval, and notification
that the website has been completed. This includes, but is not limited to,
functionality of all website pages, database, e-commerce store, payment
functions, galleries, forums etc. Upon Client approval of the website to go
live Client agrees services have been rendered and functionality of website
has been tested and approved by Client.
The Client understands and agrees
that if the Client does not respond within a timely manner relative to TAT
product/service to IMA’ request for approval, and notification that the
website has been completed, the website along with the functionality of the
website and services rendered, will be deemed to be approved by the Client,
and the website will be taken live “as-is”.
The Client understands and agrees
that if the Client does not respond to requests for missing information a
final notification will be sent to the Client. If the Client does not respond
within 1-5 business days relative to the TAT for product/ service to IMA’
notification or requests for missing information, the website, along with the
functionality of the website and the services rendered, will be deemed to be
approved by the Client, and the website will be taken live with the missing
information “as-is” or “under construction”.
In the event that IMA completes all
of the work per the original sale and database write ups IMA reserves the
right to move the site live and deem the work to be completed without the
customer’s permission if the customer will not give approval of the work.
21. Website Change Requests Before
and After Website Goes Live
IMA agrees to build a website or
database to specifications quoted per the original sale and original invoice.
Any additions or changes requested outside of the scope of the original sale,
either prior to the custom website going live or after the site has gone live
will be billed at IMA’ standard hourly rate. IMA is not obligated to complete
Client requests or changes outside of the scope of work on the original
invoice. If IMA does not agree to Client requests or changes, Client is still
obligated to pay all fees incurred and due.
22. Database/Programming
IMA does not guarantee a time frame
for completion of ANY custom database or custom programming. A “custom
Database Specifications Summary” may be presented to the Client. IMA agrees
to complete the database design according to the specifications outlined. If
the Client does not object or respond to the Database Specifications Summary
in writing within 1-5 business days relative to TAT of product/ service it
will be deemed to be accepted by the Client and IMA will proceed with
development of the custom database as outlined. A Database Specifications
Summary may not be presented to the Client for purchase of pre-built database
modules and e-commerce store modules.
If Client requests changes to a pre-packaged database, pre-built database
module, or e-commerce store module, changes are to be billed to Client at IMA’
standard hourly rate. There is no guarantee that changes made by IMA to a
pre-packaged database, pre-built database module, or e-commerce store module
will work. Client agrees charges are valid and agrees to pay for all fees
incurred for Client’s requested changes to pre-packaged databases, pre-built
databases modules, or e-commerce store modules. Once work has begun on a
database or custom programming there is No Refund if cancelled.
Client is responsible for testing the functionality of the website upon IMA’
request for approval and notification that the website has been completed.
This includes, but is not limited to, testing the functionality of the custom
database or programming. Upon Client approval of the website to go live,
Client agrees services have been rendered and functionality of website has
been tested and approved by Client.
IMA will instruct Client as to the
use of the custom database and the inputting of data related to such
database. However, data entry is the sole responsibility of the Client.
If the Client requests IMA to enter data into the database, the Client will
be charged, and agrees to pay, for such data entry at IMA’ standard data
entry rates.
23. E-commerce/Stores
Client is required to submit store
content via IMA’ content spreadsheet. IMA will input up to 20 products free
of charge. The Client will be provided with instructions to input any
additional products into the store. If the Client requests IMA to enter
additional products exceeding the original 20, the Client will be charged,
and agrees to pay, for each product added to the store at IMA’ standard
product-entry rates. The e-commerce store module is pre-built and any changes
to the look or functionality of the pre-built store require custom
programming. The Client will be billed at IMA’ standard hourly rate for
requested changes. (See Database/Programming)
Client is responsible for testing the
functionality of the e-commerce store upon IMA’ request for approval and
notification that the website has been completed. This includes but is not
limited to testing the payment functionality. IMA is not responsible for
functionality of third-party services such as, but not limited to, merchant
account, or gateway. Upon Client approval of the website to go live, Client
agrees services have been rendered and functionality of website has been
tested and approved by Client.
24. Enhancements to Website
Client may purchase enhancements to
the website at the time of initial sale or anytime thereafter. Enhancements
to the website may include, but are not limited to, custom programming,
database, flash, e-commerce, logos, galleries, rollovers, etc. Client’s requests
for enhancements to the original sale will be due and billed separately and
at the time of request. The monthly hosting fee may be adjusted according to
the enhancements requested or the hosting package selected by Client.
Some enhancements such as, but not limited to, flash, custom programming,
functionality, etc may require that a specifications summary be presented to
the Client. If the Client does not object to the specifications summary
within 3-5 business days relative to TAT for product/ service, the summary
will be deemed to be accepted, and IMA will proceed with the development as
outlined. Once work has begun on enhancements purchased by the client there
is No Refund if cancelled. Enhancements or additional services purchased
after the initial sale are separate purchases and are in addition to and
separate from the original sale. If a client cancels an enhancement the
original sale is not cancelled.
25. Additional Services
Client may purchase at an additional
monthly cost additional services offered by IMA. Additional monthly
services may include, but are not limited to, the Web Traffic Director
program (WTD), spam filters, and back-up software. Additional monthly
services include a monthly fee that is incurred and billed every month
beginning from the date of purchase of the additional service. IMA will Not
Refund any fees incurred for additional services or paid by the Client prior
to the cancellation effective date for the additional service. Any fees
invoiced and incurred are valid and Client agrees to pay. Additional services
purchased may be cancelled with 30 days written notice.
26. Email Accounts
Based on the hosting support package purchased, email accounts may also be provided.
Email accounts may be set up and used immediately upon Client’s purchase of
website. Client does not need to wait until custom website is live to use
email accounts. To begin using email accounts Client should contact Technical
Support at support@innovativemediaarts.com.
27. Technical Support
IMA’ technical support department
should be contacted at support@innovativemediaarts.com
for any concerns with Client email accounts or any problems with hosting or functionality
of the website after the website is live.
If Client uses IMA’ technical support
services, including but not limited to screen share sessions, Client acknowledges
and understands that IMA does not warranty that technical support services
will meet Client’s requirements or be error free. (See Disclaimer of
Warranties and Limitation of Liabilities.)
28. Customer Service
Innovative Media Arts strives to
offer the best service available. Customer service complaints or concerns
should be emailed to service@innovativemediaarts.com
29. Use and Storage
Client acknowledges that IMA may establish general guidelines and limits
concerning use of IMA’ services and may modify these guidelines at any time.
Limits may include but are not restricted to, the maximum number of days that
email messages or other content will be retained, maximum number of email
messages that may be sent from or received by an account, the maximum size of
any email messages sent and the maximum disk space that will be allotted on
IMA’ servers on Client’s behalf. IMA periodically backs up the websites it
hosts. However, Client acknowledges that IMA is not responsible for backing
up Client’s website and data. Client should seek appropriate backup
solutions. Changes made by Client using the editing tool or by IMA may be
lost if data loss occurs after a scheduled backup by IMA.
30. Updates to Live Website/Design
Time
Based on Client’s hosting package,
IMA may provide 4 to 12 hours annually of free updates and changes or “design
hours” that are available to Client to use after the website is live. After
the website is live, Client may wish to make changes or updates to the
website from time to time. Most changes can be made using IMA’ online
editors. The online editors may not be available for all websites, or all
pages of a website. Availability of the online editors is dependent upon the
functionality and specifications required for the Client’s website. For
changes that cannot be made with the editors, Client may use available IMA
design hours. These changes must be requested by logging into Client’s
account in the Web Center and selecting “Request Update”. Design hours can be
used for modifying the design or layout of the website. Design hours cannot
be used toward the completion or modification of databases, custom
programming, e-commerce or flash or other enhancements that must be
purchased. Changes or updates that exceed the Client’s available “design
hours” will be billed to the Client at the standard hourly rate.
IMA is not responsible for any
changes Client makes to website, or if Client breaks the website. Time
required by IMA to repair changes made by Client will be billed to Client at
IMA’ standard hourly rate if it exceeds available “design hours”.
31. Domain Names Purchased/Hosting
Agreement
Monthly hosting is billed every 30 days beginning from the date of sale.
Monthly hosting is billed from the date of sale, regardless of the date the
website goes live, because hosting costs are incurred immediately. Server
space is secured for the developing website and/or for existing Client domain
names. In addition, email accounts and support are available from the date of
sale and are paid for with monthly hosting fees. Client agrees to a one year
hosting commitment with IMA.
Package Domain names purchased by IMA with website designs, databases, stores, or
programs created by IMA are the property of IMA until Client has paid all
fees including one full year of monthly hosting. At that time ownership of
the site and it’s functionality, and domain name may be transferred to the
Client’s control upon receipt of the Client’s written request. Sham purchases
of sites may not be transacted with the intent and/or result of having a site
built, then transferring the site to another hosting provider. Clients may
buy-out their hosting by paying 12 months of hosting in advance if they wish
to transfer the domain name and content to Client’s control prior to one year
of paid monthly hosting.
Upon transfer of domain and/or website to Client or another service provider,
at anytime, Client agrees that IMA has met in full its obligation to Client,
and IMA is released of all past and future obligations to the client.
Additional work and/or hosting done for Client must be agreed to in writing
and paid for by Client.
Domain names are purchased through a separate invoice and shopping cart
service. IMA cannot guarantee the availability of domain names and has no
liability for a domain name not being available for purchase after the
initial sale. If a domain name is not available for purchase IMA may provide
assistance through the online IMA domain name registration service in order
to assist the Client in selecting and purchasing an alternate domain name.
Domain names already owned by the Client remain the property of the Client
and renewal of the domain name is the Client’s responsibility. The renewal of
any domain names transferred to the Client is the responsibility of the
Client.
32. Marketing Representations
IMA makes no representations as to
the marketing of Client’s products, services or sales. Client’s obligation to
pay fees due to IMA are due at time of sale of website design and hosting
services and are not contingent upon Client’s marketing of said website.
Client is responsible for all marketing of Client’s website. IMA is not
responsible for marketing of Client’s site including search engine
rankings.
33. 30-Day Satisfaction Guarantee
Innovative Media Arts provides a 30-day satisfaction guarantee. IMA will
continue to change and modify the Client’s website to Client’s liking, within
30 days from the date of sale or until the website is taken live, whichever
comes first, at no additional cost. Changes to the website made after 30 days
from the date of the initial sale, or after the website is taken live, will
first be billed to the Client’s design time hours available based upon the
monthly hosting package purchased by the Client. Changes to the website that
exceed the design time hours will be billed to the Client at IMA’ standard
hourly rate over and above the initial design fee paid. IMA does not
guarantee that the website designed will be exactly what the client has
envisioned. IMA’ best effort will be given for the 30-day satisfaction
guarantee but IMA is not obligated to complete multiple redesigns or
modifications. While IMA may agree to make requested changes and to bill the
Client’s design time or bill the Client directly, IMA is not obligated to
complete Client requests or changes outside of the 30-day satisfaction
period. If IMA does not agree to Client requests or changes, Client agrees
and is still obligated to pay all fees incurred and due.
34. Billing Policy
The initial design set-up fee is due
and billed in full at the time of the original sale. (Installment payments
may be accepted for the set-up fee only if agreed to in writing per the
original invoice.) Monthly Hosting Plans are billed and due every month
beginning 30 days from the date of the original sale wherein Client hereby
requests that IMA renew and bill monthly hosting fees every 30 days, unless
the Client cancels in writing after 12 months of monthly hosting fees have
been paid.
Monthly hosting and additional
services fees may be billed on the 1st or 15th of each
month to coincide with IMA’ billing cycles. The amount of the initial design
set-up fee and monthly hosting fees are detailed on the original invoice
confirming amounts of sale. Monthly hosting amounts may vary depending upon
the hosting package selected by Client.
IM reserves the right to change
prices at any time including monthly hosting amounts and hourly design fees.
IMA accepts payment via credit card
and EFT debit from Client’s bank account. Upon Client’s authorization of
payment to IMA via credit card, or EFT debit payment, Client thereby
authorizes all recurring monthly hosting and/or additional services fees to
be charged to the same method of payment, credit card or EFT account for
future charges until such authorization is withdrawn by Client in writing.
The Client may change payment methods
including credit card and EFT debit payments with 30 days notice. To change
payment methods Client should contact IMA’ billing department. Client should
not email new billing information for security purposes.
35. Billing Disputes
IMA charges a $200.00 fee to handle
unauthorized credit card disputes. If IMA does not receive payment in
full when due, IMA may, to the extent permitted by the law of the state of
the billing address on file for Client at the time, charge a late fee of up
to 1.5% per month (18% per annum), or a flat fee of $5 per month, whichever
is greater, on any unpaid balance. IMA may, to the extent permitted by the
law of the state of the billing address on file for Client at the time
account is sent to a collection agency, also charge Client for any collection
agency fees and/or attorney’s fees billed to IMA for collecting from Client.
If Client wishes to dispute a charge
Client must first contact IMA’ billing department and must allow 10 business
days for a response. To avoid any dispute about Client’s attempt to contact
IMA, Client must send the request in writing to:
Attn: Billing Department, Innovative Media Arts, 12400 Ventura Blvd, Ste 706,
Studio City, CA 91604. Requests may be emailed to billing@innovativemedia arts.com. If Client chooses
to send request by email, a copy of the request must also be sent by mail as
confirmation.
If Client initiates a credit card
dispute the decision of the credit card company is made through an
arbitration process and the decision of the credit card company shall be
binding upon Client.
36. Termination/Cancellation of
Services
IMA, at its sole discretion, may
terminate its service and remove and discard any content, for any reason,
including and without limitation, for lack of use, or if IMA believes Client
has violated the TOS. IMA may also at its sole discretion and at any time,
discontinue providing services, or any part thereof, with or without notice.
Client agrees that any termination of access to IMA’ services under any
provision of this TOS may be effected without prior notice and that IMA may
deactivate or delete Client’s account and all related information files.
Client agrees that IMA shall not be liable to Client or any third-party for
any termination of services. Paid accounts that are terminated will not be
refunded. In addition, accounts that become 30 days delinquent will be
terminated. IMA also reserves the right to discontinue the designing of Client’s
website at any time, at IMA’ sole discretion, with an appropriate refund to
the Client. Under no circumstances is the refunded amount to exceed the
amount collected by IMA.
If the Client cancels an account
before the work is completed or site is live, a cancellation fee is retained
per the Cancellation Fee and Refund Policy. Client agrees that all fees
incurred and billed prior to cancellation effective date are valid and Client
agrees to pay. Upon request for termination of services the website will be
removed. A back-up copy of the website is not maintained by IMA.
Client agrees to pay all hosting fees
and additional services fees owed from the time of sale until the
cancellation effective date, and at a minimum for hosting fees for one year.
Transferring a domain name to another provider or non-use of Client’s hosting
account does not constitute termination of the account. Client must notify
IMA in writing or via email to terminate the account services and avoid
further monthly hosting charges. It is Client’s responsibility to secure
confirmation from IMA that the request for termination has been received and
no further hosting fees will be billed.
Requests for cancellation of website
hosting services or additional services should be sent to the following
address:
Attn: Billing Department, Innovative Media Arts, 12400 Ventura Blvd, Ste 706,
Studio City, CA 91604
Requests may be emailed to billing@innovativemediaarts.com. If
Client chooses to send request by email, a copy of the request must also be
sent by mail as confirmation.
37. Cancellation Effective Date
Client may terminate Annual Hosting Plan services
with 30 days written notice, after one full year of paid hosting.. The
effective date of cancellation is to be 30 days from the date of IMA’
receipt of written notice to cancel. Any monthly fees scheduled to bill after
receipt of written notice to cancel but before the effective date of
cancellation are valid and client agrees to pay.
If Client has not paid all design,
enhancement, hosting and additional services fees due, such fees are due in
full at the time of cancellation and Client authorizes IMA to collect any
outstanding fees due, subject to the Cancellation Fee and Refund Policy.
Client understands any pending billing for design fee installments previously
agreed to will not be cancelled.
38. Cancellation Fee and Refund
Policy
WEBSITE DESIGN/DEVELOPMENT - Refunds of the fees paid for development of the
website may be issued on accounts cancelled within 30 days of the initial
sale and prior to the completion of the website according to the following
schedule:
A) A minimum of a 25% cancellation fee may be
retained by IMA on cancelled accounts even if no work has been started and no
content yet submitted by the Client.
B) A minimum of a 50% cancellation fee will
be retained by IMA on cancelled accounts once work has been started; based on
any content submitted by the Client.
C)
A minimum of a 75% cancellation fee
will be retained by IMA on cancelled accounts if work has been presented to
the Client; or IMA has made multiple attempts to work with the Client, and
Client has not responded to those attempts.
D)
A 100% cancellation fee will be
retained by IMA and NO REFUND issued if any changes and/or modifications
requested by the Client have been completed by IMA. No Refund will be issued
on any website cancelled after services have been rendered, including but not
limited to, the design work having been completed and/or the website taken
live.
MINIMUM CANCELLATION FEE – Client
agrees that a minimum cancellation fee of 25% will be retained by IMA on all
cancelled accounts even if no work has been started. The cancellation fee is
charged to compensate IMA for up-front expenses and services rendered,
including but not limited to, costs incurred for the transfer or purchase of
domain name(s) for developing the website, securing server space, creating
the temporary website or space saver, data consolidation time, marketing, and
overhead costs.
ENHANCEMENT SALES - A 100% cancellation fee will be retained by IMA and NO
REFUND will be issued once work has begun on any enhancements purchased,
including, but not limited to, databases, programming, logos, flash,
galleries, rollovers, e-commerce stores etc. Client agrees that a minimum
cancellation fee of 50% will be retained by IMA on all cancelled enhancement
purchases if cancelled within 30 days of the enhancement sale and if work has
not yet begun. NO REFUND will be issued by IMA if client cancels after 30
days from the enhancement sale. Enhancements or additional services purchased
after the initial sale are separate purchases and are in addition to and separate
from the original sale. If a client cancels an enhancement the original sale
is not cancelled.
MONTHLY HOSTING – Client agrees that
there is NO REFUND of monthly hosting fees or monthly additional services
fees incurred or paid by the Client prior to cancellation date.
Client agrees that all fees incurred and billed prior to cancellation date
are valid and Client agrees to pay. (See Termination).
39. Account Transfer
Requests for transferring the ownership of a website or hosting account from
Client to a new owner must be completed in writing by both the current
account owner and the new designated owner. The transfer is not valid
until a signed request is received by IMA in writing which is to include
payment authorization and new billing account information from the new owner,
documentation of the ownership transfer (purchase agreement, DBA etc),
documentation of copyright transfer, and acceptance of IMA’ TOS by the
new Owner.
40. Innovative Media Arts Proprietary
Rights
Client acknowledges and agrees that
IMA’ services may contain proprietary and confidential information that is
protected by intellectual- and proprietary-rights laws. Client agrees to not
reproduce, duplicate, copy, sell, resell or exploit any portion of IMA’
services.
41. Use of Client Information
Client hereby agrees that any information
or ideas submitted to IMA by any means may be used by IMA without
compensation or liability to Client for any purpose whatsoever, including but
not limited to, developing websites, databases, e-commerce and developing,
manufacturing and marketing other products. This provision does not apply to
Client content or to personal information that is subject to IMA’ Privacy
Policy.
Client herby gives permission to IMA
to use samples or links to Client’s custom website designed or developed by
IMA for marketing and advertising purposes, including but not limited to, use
in IMA’ online portfolio.
42. Third-Party Services
From time to time third parties may
offer service to IMA’ clients. Use of such third-party services will be at
Client’s own risk and subject to the terms and conditions of those third
parties. IMA does not represent nor warrant that use or access to any
third-party services will be compatible, uninterrupted, error free, without
defects or that Client will be able to access IMA’ services. Client also
agrees that IMA is under no obligation to provide Client with any
enhancements, updates, or fixes to make IMA’ services accessible through any
third-party applications.
43. Contract Service Providers
IMA may contract with Contract
Service Providers to complete a portion, or all of the Client’s custom
website. The Client agrees not to do business directly with the Contract
Service Provider, nor to remit payment to the Contract Service Provider or
any IMA employee directly for services. All payments for services rendered
must be made directly to IMA. Contract Service Providers are required to
enter into employment contracts and to follow company policies and
procedures. Contract Service providers are provided with only the information
needed to complete the design or development portion of the Client’s website
and do not have access to Client’s personal information including payment
information.
44. Disclaimer of Warranties
CLIENT’S USE OF IMA’ SERVICES IS AT
CLIENT’S OWN RISK. IMA’ SERVICES ARE PROVIDED “AS IS”. IMA DISCLAIMS TO THE
FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF
PROPRIETARY RIGHTS. IMA DISCLAIMS ANY WARRANTIES REGARDING IMA’ SERVICES
INCLUDING THAT THEY WILL MEET CLIENT’S REQUIREMENTS, THAT THEY WILL BE
UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. HWS DISCLAIMS ANY WARRANTIES
REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF IMA’ SERVICES,
INCLUDING RESULTING SALES AND WEB TRAFFIC. HWS DISCLAIMS ANY WARRANTIES
REGARDING THE MARKETING OF CLIENT’S PRODUCTS, SERVICES, SALES, OR WEBSITE.
IMA DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES,
INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH IMA’
SERVICES, OR LINKS PROVIDED BY IMA’ SERVICES, AS WELL AS FOR ANY INFORMATION
OR ADVICE PROVIDED BY IMA OR OBTAINED THROUGH LINKS PROVIDED THROUGH IMA’
SERVICES.
CLIENT UNDERSTANDS AND AGREES THAT
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF IMA’
SERVICES ARE DONE AT CLIENT’S OWN RISK AND THAT CLIENT WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGES TO CLIENT’S COMPUTER SYSTEM OR LOSS OF DATA OR
OTHER LIABILITY THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.
SOME STATES OR JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. THE ABOVE EXCLUSIONS MAY NOT APPLY
TO CLIENT.
45. Limitation of Liability
CLIENT UNDERSTANDS AND AGREES THAT
IMA, IT’S SUBSIDIARIES, AFFILIATES, OFFICERS, AND EMPLOYEES SHALL NOT BE
LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS
OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, (EVEN IF IMA HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF
LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OF OR INABILITY
TO USE IMA’ SERVICES, RELIANCE ON IMA’ SERVICES, OR FROM THE INTERRUPTION, SUSPENSION,
OR TERMINATION OF IMA’ SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD
PARTIES.) THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM PRODUCTS
OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS
ENTERED THROUGH IMA’ SERVICES OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF
CLIENT’S DATA OR TRANSMISSIONS AND ANY STATEMENTS OR CONDUCT OF A THIRD PARTY
OR ANY OTHER MATTERS RELATING TO IMA’ SERVICES. SUCH LIMITATION SHALL FURTHER
APPLY, WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR ANY
INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED IN ANY WAY TO IMA’
SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES,
SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CLIENT.
Without limiting the foregoing, under
no circumstance shall IMA be liable for any delay or failure in performance
resulting directly or indirectly from acts of nature, forces or causes beyond
its reasonable control, including without limitation, internet failures,
computer equipment failures, telecommunication equipment failures, other
equipment failures, electrical power failures, strikes, labor disputes,
riots, insurrections, civil disturbances, shortages of labor or materials,
fires, floods, storms, explosions, or other casualties, illness, accidents,
acts of God, war, governmental actions, orders of domestic or foreign courts
or tribunals, non performance of third parties, or loss of or fluctuations in
heat, light or air conditioning. IMA’ full and complete liability, for any
reason whatsoever, shall be limited to the full refund of all monies paid to
IMA.
46. Tort Claims
Client waives all tort claims against
IMA, its subsidiaries, affiliates, officers, employees and agents. The
relationship between the parties is contractual in nature only. Client waives
any tort claims that arise by act, or omission.
47. Indemnification
Client agrees to defend, indemnify
and hold harmless IMA, its directors, officers, employees and agents from and
against all claims and expenses, including attorneys’ fees that may arise or
result from any content Client submits, posts, transmits or makes available
through IMA’ services, from any product sold by Client, its agents or
employees or assigns, from any service provided or performed or agreed to be
performed by IMA or from Client’s breach or violation of the TOS, including
any obligation, representation, or warranty made herein , or Client’s
violation of any rights of another. Client further agrees to defend,
indemnify and hold harmless IMA, its directors, officers, employees and
agents from and against all claims and expenses, including attorneys’ fees,
arising from or related to contracts, representations, agreements, promises,
etc, made between Client and third parties, or arising from or related to
Client’s negligence toward third parties.
48. Notice
Unless otherwise specifically
provided, all notices required or permitted by this Agreement shall be in
writing and in English and may be delivered personally, or may be sent by
email, or certified mail, return receipt requested, to the address set forth
below. If Client chooses to send request by email, a copy of the request must
also be sent by mail (to the address below) as confirmation of the request.
Innovative
Media Arts
12400 Ventura Blvd, Ste 706
Studio City, CA 91605
Attn: President
49. Contact Innovative Media Arts
Client may contact IMA at
323.600.2007 M-F from 9:30 –5:00 PST. Client may visit our website at www.innovativemediaarts.com at any time. Client may
also email IMA at the following department email addresses:
50.
Negative Comments/Slander
Client specifically agrees not to
engage in negative comments or slander regarding IMA, including but not
limited to publishing, or causing to be published, complaints or derogatory
comments regarding IMA in any format, including but not limited to, print,
newspaper, television, radio or on internet complaint sites, blogs or other
public internet forums. Should there be a breach of this condition IMA will
be entitled to liquidated damages in the amount of $2,500.00 for each
publishing or posting. If said breach occurs on an internet complaint site
each hit to that website will be considered an individual breach of this
condition, and subject to additional liquidated damages of $100 per
occurrence. Further, IMA shall be entitled to litigate this matter, and
obtain the money damages together with injunctive relief. The prevailing
party to that litigation shall be entitled to an award of attorney’s fees.
51. Severability; Waiver
In the event that any provision
hereof is found invalid or unenforceable pursuant to judicial decree or
decision the remainder of this Agreement shall remain valid and enforceable
according to its terms. The failure by IMA to avail itself of any right or
enforce any obligation of this agreement shall not be deemed to be an ongoing
waiver of such right or obligation or of any other right or obligation .
52. Jurisdiction
This agreement shall be governed exclusively by the laws of the State of
California, USA, without regard to any conflicts of laws provisions thereof,
as a contract entered into and performed entirely within the State of California.
The parties herby expressly disclaim the application of the United Nations
Convention on the International Sale of Goods. Any disputes between the
parties relating to the subject of this agreement shall be submitted
exclusively to the jurisdiction of the state or federal courts located in the
State of California, Counties of California, and the parties expressly
consent to personal jurisdiction and venue therein and waive any objection
based on forum non conveniens or otherwise.
53. Arbitration
Notwithstanding the foregoing, in
lieu of litigation, arbitration may be used as a means of resolving disputes.
Arbitration would be through a neutral third-party arbitrator to be approved
by both Client and IMA. If any court sitting outside the United States
determines that the litigation forum or arbitration provisions of this
agreement are invalid, then and only then, the parties agree to settle any
dispute through binding arbitration by three arbitrators, in the English
language, under the commercial arbitration rules of the International Chamber
of Commerce, with the location of the arbitration to be in a neutral
jurisdiction (not the country of residence of the Client or of IMA) as
selected by IMA.
54. Governance
IMA may investigate any reported violations of this agreement, its policies or
any other complaints and take any action it deems appropriate to protect its
systems, facilities, Clients, and/or third parties.
55. Electronic Signatures
Selecting and submitting “accept” on
the electronic copy of the TOS, submitting content through the CDF, making
payment, or submitting information or documents to IMA so that IMA may
perform services for the client, the same shall constitute an electronic
signature as defined by California’s Uniform Electronic Transactions Act.
56. General Information
This Agreement constitutes the entire
understanding and contract between the parties and supersedes any and all
prior oral or written agreements (including, but not limited to, any prior
versions of the TOS). Any modifications to this agreement must be in writing
and signed by an authorized officer of IMA. All representations not in
writing are null and void. Written agreements may include, but are not
limited to, emails and electronic acceptance of this Terms of Service.
Client agrees that regardless of any
statute or law to the contrary, any claim or cause of action arising out of
or related to the use of Innovative Media Arts services or the Terms of
Service must be filed within one (1) year after such claim or cause of action
arose or be forever barred. The section titles in the TOS are for convenience
only and have no legal or contractual effect.
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