Website Design Terms of Service
updated 7/5/2011
Section 1 – Definition of Terms
CLIENT: The business or organization as defined in the signed, paper “Website Design Contract”
DESIGNER: Pink Skunk Web Design, a sole proprietorship, PO Box 598, Londonderry, NH 03053
HOST: Pink Skunk Web Design, acting as an authorized reseller of a third party website hosting company
CONTRACT: This electronic agreement and the signed, paper “Website Design Contract”
Section 2 – Authorization
CLIENT is engaging DESIGNER as an independent contractor for the specific project of developing and/or improving a World Wide
website to be installed on CLIENT’s web space located on HOST’s computer. CLIENT hereby authorizes DESIGNER to access this
HOST account, and authorizes HOST to provide DESIGNER with any necessary “write permission” for CLIENT’s web page directory
and any other directories or programs that need to be accessed for this service. CLIENT also authorizes DESIGNER to publicize its
completed website to web search engines as well as other web directories and indexes.
Section 3 – Warranties
DESIGNER represents and warrants to CLIENT that it has the experience and ability to perform the services required by this
CONTRACT; that it will perform said services in a professional, competent, and timely manner; that it has the power to enter into
and perform this CONTRACT; and that its performance of this CONTRACT shall not infringe upon or violate the rights of any third
party or violate any federal, state, or municipal laws. However, CLIENT will not determine or exercise control as to general
procedures or formats necessary to have these services meet CLIENT’s satisfaction. CLIENT represents and warrants to DESIGNER
that it has the power to enter into this agreement; and that its performance of this CONTRACT shall not infringe upon or violate the
rights of any third party or violate any federal, state, and municipal laws.
Section 4 – Domain Names
CLIENT must own at least one registered domain name for its website. At CLIENT’s request, DESIGNER can assist with the selection,
registration, or transfer of a domain name (EX: www.MyBusiness.com).
DESIGNER can suggest appropriate names and do a search to ascertain the availability of those names. Although DESIGNER will
register a requested domain name in a timely fashion, DESIGNER does not guarantee the availability of any domain name. If CLIENT
chooses to register its own domain name, CLIENT will be responsible for paying the registration fee and arranging for the name to
point to CLIENT’s HOST directory.
DESIGNER does not guarantee that CLIENT’s domain name will be able to be successfully transferred from another company. This
depends heavily on how the initial registration was set up with the previous company.
If CLIENT’s domain name is registered by DESIGNER, the annual renewal fee per domain name (normally under $25) will be
automatically billed to CLIENT. If CLIENT does not choose to renew a web domain name, CLIENT must notify DESIGNER in writing at
least 30 days before the domain name expires. If CLIENT registered its own domain name, CLIENT is responsible for renewal
payments and arrangements.
Section 5 – Assignment of Project
DESIGNER reserves the right to assign subcontractors as needed. DESIGNER will be responsible for the final results of all services. All
work done on CLIENT’s website will be completed in the United States by legal American citizens.
Section 6 – Third Party Software
If CLIENT uses an add-on service or software from an outside company, DESIGNER is not responsible for maintenance, technical
support, or backup of any data that is stored, created, or otherwise used by that software.
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Section 7 – Limited Liability
CLIENT hereby agrees that any material submitted for publication will not contain or link to anything leading to an abusive or
unethical use of HOST’s service or server. Abusive and unethical materials and uses include, but are not limited to: pornography,
obscenity, nudity, violations of privacy, computer viruses, any harassing and harmful material or uses, any illegal activity or material
advocating illegal activity, and any infringement of privacy, slander, or defamation.
CLIENT hereby agrees to indemnify and hold harmless DESIGNER from any claim resulting from CLIENT’s publication of material or
use of those materials. CLIENT hereby agrees to indemnify and hold harmless DESIGNER in any claim resulting from the submission
of illegal materials. If CLIENT provides text, images, photographs, or other materials to DESIGNER that infringe on copyright or usage
rights, CLIENT will be responsible for any resulting legal fees.
If DESIGNER registers or transfers a domain name on behalf of CLIENT, CLIENT hereby waives any and all claims which it may have
against DESIGNER for any loss, damage, claim, or expense arising out of or in relation to the registration of such domain name in any
online or off-line network directories, membership lists, or registration lists, or the release of the domain name from such directories
or lists following the termination of this service by DESIGNER for any reason.
Under no circumstances, including negligence, shall DESIGNER, its offices, agents, or anyone else involved in creating, producing, or
distributing its services, be liable for any direct, indirect, incidental, special, or consequential damages that result from the use of or
inability to use DESIGNER’s services; or that result from mistakes, omissions, interruptions, deletion, or loss of files or data, errors,
defects, delays in operation, or of performance, whether or not limited to acts of God, communication failure, theft, destruction, or
unauthorized access to DESIGNER’s or HOST’s records, programs, or services.
DESIGNER is not liable for website or email outages that may occur as a result of website hosting maintenance, HOST power
outages, HOST discontinuation of business, or natural disasters. Under normal circumstances, CLIENT’s website and email should be
active and functional more than 99.9% of the time. DESIGNER maintains sole responsibility for website file data backups and
restoration of CLIENT’s website. In the event that a website restoration project is necessary, DESIGNER will restore CLIENT’s files in
as timely a manner as possible at no additional cost to CLIENT.
Notwithstanding the above, CLIENT’s exclusive remedies for all damages, losses, and causes of actions whether in CONTRACT, tort
including negligence, or otherwise, shall not exceed the aggregate dollar amount that CLIENT paid during the term of this CONTRACT
and any reasonable attorney’s fees and court costs.
Section 8 – Indemnification
CLIENT agrees that it shall defend, indemnify, save, and hold harmless DESIGNER from any and all demands, liabilities, losses, costs,
and claims, including reasonable attorney’s fees asserted against DESIGNER, its agents, clients, servants, officers, and employees,
that may arise or result from any service provided or performed or agreed to be performed or any product sold by CLIENT, its
agents, employees, or assigns. CLIENT agrees to defend, indemnify, and hold harmless DESIGNER against liabilities arising out of any
injury to person or property caused by any products or services sold or otherwise distributed in connection with DESIGNER’s service,
any material supplied by CLIENT infringing on the proprietary rights of a third party, copyright infringement, and any defective
product which CLIENT sells from the website DESIGNER designs.
Section 9 – Laws Affecting Electronic Commerce
CLIENT agrees that it is solely responsible for complying with applicable laws, taxes, and tariffs, and will hold harmless, protect, and
defend DESIGNER and its subcontractors from any claim, suit, penalty, tax, or tariff arising from CLIENT’s use of internet electronic
commerce.
Section 10 – Venue
Regardless of the place this CONTRACT is signed, CLIENT agrees that for purposes of venue, this CONTRACT was entered into in
Rockingham County, New Hampshire.
Section 11 – Arbitration
Any disputes in excess of $1,000 (or the maximum limit for small claims court) arising out of this CONTRACT shall be submitted to
binding arbitration before the Joint Ethics Committee or a mutually agreed-upon Arbitrator pursuant to the rules of the American
Arbitration Association. The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof.
CLIENT shall pay all arbitration and court costs, reasonable attorney’s fees, and legal interest on any award or judgment in favor of
DESIGNER.
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Section 12 – Nondisclosure
DESIGNER, its employees, and subcontractors agree that, except as directed by CLIENT or required by law, they will not at any time
during or after the term of this CONTRACT disclose any confidential information to any person whatsoever.
Section 13 – Website Hosting and Email Details
The monthly hosting service is provided by HOST who utilizes a shared server computer that is integrated into the Internet. This
server computer will send and receive information as related to the World Wide Web. CLIENT will be connected to and utilize the
hardware and software facilities of DESIGNER and HOST to establish a website.
Hosting services are available for purchase and use only in the United States of America. All services provided by HOST may only be
used for lawful purposes. The laws of the State of Florida, the State of Texas, the State of New Hampshire, and the United States of
America apply.
In any case in which a court order indicates material is defamatory, libelous, or slanderous in nature, HOST will disable access to the
material. Similarly, in any case in which a United States Court has placed an injunction against specified content or material, HOST
will comply and remove or disable access to the material in question.
DESIGNER and HOST reserve the right to refuse service to anyone. Any material that, in HOST’s judgment, is offensive, obscene,
threatening, illegal, or violates the terms of this CONTRACT may be removed (or otherwise disabled), with or without notice.
A. Content
HOST will suspend and/or terminate CLIENT’s website and email accounts if they contain or promote:
AutoSurf/PTC/PTS/PPC sites Banking, investment, mortgage, or escrow related offers,
Banner-ad services promotions, or programs
Mailer Pro Image hosting scripts
File backup or storage Mail bombers/spam scripts
Lottery/gambling Commercial audio or video streaming
MLM businesses Hacker focused sites/archives/programs
IRC scripts/bots Sales of any controlled substances
File dump/mirror scripts Sales of counterfeit merchandise of a trademark holder
B. Monitoring
HOST systems may be monitored for all lawful purposes, including: to ensure that use is authorized, to manage the system, to
facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During
monitoring, information may be examined, recorded, copied and used for authorized purposes. Use of HOST’s services constitutes
consent to monitoring for these purposes. Any account found connecting to a third party network or system without authorization
from the third party is subject to suspension. Access to networks or systems outside of CLIENT’s direct control must be with
expressed written consent from the third party. HOST may, at its discretion, request and require documentation to prove access to a
third party network or system is authorized.
C. Resource Usage
CLIENT's website and email accounts may not:
Use 25% or more of HOST's system resources for longer than 90 seconds
Run any type of web spider or indexer (including Google Cash/AdSpy) *Every file (HTML, CSS, image, email, etc)
Run any software that interfaces with an IRC (Internet Relay Chat) network on CLIENT’s account uses up 1 inode.
Run any bit torrent application, tracker, or client CLIENT must periodically purge
Participate in any file-sharing/peer-to-peer activities unneeded email messages sent and
Share or sell hosting or email space with another person or business received to free up space.
Send more than 500 emails per hour per domain
Use more than 250,000 inodes*
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D. Mailing Lists Rules
CLIENT mailing lists must contain less than 5,000 total addresses and cannot all be emailed at the same time (with a mass email).
This 5,000 limit applies even if CLIENT breaks the larger list up into several smaller mailing lists. If CLIENT wants to send an email
message to a mailing list, CLIENT must throttle it to send 1 email every 8 seconds. CLIENT must use mailing list software that has this
type of functionality, such as PHPList. If CLIENT does not throttle and tries to send 500 emails, the server will try to send all 500
emails in 1 second which will cause HOST’s server to become sluggish or crash. CLIENT's website may be suspended immediately if
this happens.
If CLIENT's mailing list contains over 900 email addresses, it is only allowed to be sent to during weekends or weekdays from 1am-
8am Eastern Time to prevent high server loads. No direct SMTP mailers or mailing done directly by scripts are allowed.
CLIENT's mailing list must be a Double Opt-In list. This means a user must subscribe to a newsletter or other email marketing
messages by explicitly requesting them and must confirm the email address to be his/her own. CLIENT’s mailing list must also
comply with all guidelines set forth by the United States Government, which can be found online at this address:
http://www.ftc.gov/bcp/edu/pubs/business/ecommerce/bus61.shtm.
E. Spam
HOST does not allow the sending of unsolicited e-mail, bulk email or spam. "Safe lists", purchased lists, and lists that have been
"given" will be treated as spam. If CLIENT sends out spam, its account will terminated with or without notice. CLIENT may not
advertise its website via spam sent by fax, phone, email, instant messaging, or usenet/newsgroups. No organization or entity listed
in the Register of Known Spam Operations (ROKSO) database may be hosted on HOST's servers.
Any account which results in HOST's Internet Protocol (IP) space being blacklisted will be immediately suspended and/or terminated.
HOST reserves the right to require changes or disable as necessary any website, account, database, or other component that does
not comply with its established policies, or to make any such modifications in an emergency at its sole discretion. HOST reserves
the right to charge CLIENT a clean-up fee or any charges incurred for blacklist removal if CLIENT’s account was used to send any
unsolicited email. This cost of the clean-up fee is entirely at the discretion of HOST.
F. Hosting Related Arbitration
By using HOST’s services, CLIENT agrees to submit to binding arbitration. If any disputes or claims arise against HOST or its
subsidiaries, such disputes will be handled by an arbitrator of HOST's choice. All decisions rendered by the arbitrator will be
binding and final. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this Hosting Related
Arbitration Clause. CLIENT is responsible for any and all costs related to such arbitration.
Section 14 – Updates
These Website Design Terms of Service may be updated at any time, and will be available for CLIENT’s review online at
http://www.PinkSkunkWebDesign.com/order/terms-of-service.pdf. The most recent version will apply to this
CONTRACT. CLIENT will be notified whenever these Website Terms of Service are updated, and will have 30 days to review
the updated terms before they take effect.
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