TERMS & CONDITIONS
1 Work Orders. DK Web Development-furnished Services specified on a work order are purchased by The Client in accordance with the terms of that work order and this Agreement.
2 Entire Agreement. This Agreement and each executed or otherwise mutually agreed upon Work Order sets forth the entire understanding between The Client and DK Web Development and supersedes all prior and contemporaneous agreements, arrangements and communications, whether oral or written, with respect to the subject matter hereof. This Agreement, once executed, and each Work Order transmitted by e-mail or other electronic means, shall be treated in all manner and respects as an original document. This Agreement and each Work Order may be signed in separate counterparts each of which will be deemed an original and all of which together will be deemed to be one original. Any conflicting terms and conditions set forth on a Work Order take precedence over this Agreement, in relation to that Work Order.
3 Acceptance. Without limiting other methods by which DK Web Development may agree to a Work Order, a Work Order will be deemed accepted by DK Web Development if DK Web Development starts to provide the Services.
4 Description of Rates.
4.1 “Scheduled Work” – Normal hourly rates ($100 per hour) apply Monday through Friday, between 8am and 5pm PST. Minimum 1 hour. Work will begin within 3 business days from the approved work request.
4.2 “Off hours” Off Hour rates ($150 per hour) apply to anything that needs to be done between 5pm and 7am PST & weekends. Minimum 1 hour. This is emergency/unscheduled work (takes priority and starts right away).
5 Invoicing and Payment. DK Web Development may invoice for Services at the beginning of each calendar month unless otherwise agreed. Invoices will be sent at the beginning of each calendar month for work done in the previous month and payment is due upon receipt of the undisputed invoice, unless otherwise specified on an Invoice. In the event that no charges are accrued in a given month, no invoice will be sent and no charges will be made to the card on file. Please note that declined credit cards will result in a 5% fee. A 2% monthly service charge is payable on all overdue balances. DK Web Development reserves the right to implement a work stoppage on accounts with an overdue balance.
6 Delivery and Cancellation. DK Web Development will commence provision of Services within 3 business days of the approved work request. If the work is considered urgent and has to be completed immediately, the Services are considered “off-hours” and off-hours rates will apply (see Section 4 for rates). DK Web Development will notify The Client promptly of potential delays if the DK Web Development cannot begin the requested work within 3 business days at which time The Client reserves the right to cancel such Services without charge. If DK Web Development fails to make complete delivery as provided herein, The Client reserves the right to cancel a work request in whole or in part, and to charge DK Web Development for any additional costs or expenses incurred in the replacement of such Services. Effective upon DK Web Development’s receipt of written notice from The Client, The Client may, without charge, issue a cancellation or an alteration to a Work Order, in whole or in part, at any time (to the extent delivery or performance has not occurred). Unless otherwise agreed to in writing by the parties, DK Web Development agrees to provide electronic delivery of software Products.
7 Warranties. DK Web Development warrants that it has good title to the Services, free from any lien or encumbrance, and that the Services conform to the requirements of each Work Order, including any published specifications, usage capabilities for the Services, or any samples furnished by The Client or DK Web Development. DK Web Development warrants to The Client that if any Service fails to meet DK Web Development’s specifications and usage capabilities, then DK Web Development will, at its own cost and expense and within 30 days of its receipt of written notification of such failure, either correct such deficiency or provide The Client with an acceptable plan for correcting such deficiency. If the deficiency is not corrected within the aforementioned 30-day period, or if an acceptable plan for correcting such deficiency is not established during such period, The Client may request a refund or reperformance of such Service. EXCEPT FOR THE WARRANTIES SET FORTH OR REFERENCED IN THIS AGREEMENT, DK Web Development MAKES NO ADDITIONAL WARRANTIES TO The Client WITH RESPECT TO THE PRODUCTS OR SERVICES, WHETHER EXPRESS OR IMPLIED, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.
8 Indemnification. DK Web Development will defend, indemnify, and hold The Client, its affiliates, and their employees, directors, officers, contractors and agents harmless from and against any third party claims, demands, loss, damages or expenses (including but not limited to reasonable attorneys’ fees) (a) based on the performance of Services by DK Web Development, or the use of the Products or Services by The Client; (b) based on personal injury, death, or tangible property damage caused by DK Web Development’s employees, contractors or agents; (c) based on any breach or default by DK Web Development in the performance of DK Web Development’s obligations to Clients or DK Web Development’s breach of its representations or warranties; or (d) to the extent based on a claim that the Services constitute an infringement of a third party copyright, trademark, trade secret, patent or other third party intellectual property right.
9 Limitation of Liability. THE LIMIT OF THE CLIENT LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) IN ANY MANNER RELATED TO A WORK ORDER, FOR ANY AND ALL CLAIMS, REGARDLESS OF THE FORM OF ACTION, WILL NOT IN THE AGGREGATE EXCEED THE PURCHASE PRICE PAID FOR THE SERVICES GIVING RISE TO THE CAUSE OF ACTION. FURTHERMORE, THE CLIENT SHALL HAVE NO LIABILITY FOR ANY AMOUNTS REPRESENTING LOSS OF BUSINESS OR SAVINGS OR INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED OF THEIR POSSIBLE EXISTENCE.
10 Use of Names and Marks. All trademarks and trade names of each party are and will remain the exclusive property of such party. Neither party will acquire any right to the trademarks or trade name of the other party. The Client will have the limited right to use DK Web Development’s trade name and trademarks in connection with the activities described in a Work Order. DK Web Development may not, without the prior written consent of The Client: (a) publicize this Agreement, any Work Order, or their subject matter; (b) state that any Service has been approved or endorsed by The Client or its affiliates; or (c) use the name, trade name, trademark or symbol of The Client or its affiliates on any list of DK Web Development’s customers.
11 Confidential Information. Neither party shall use or disclose to any other person or entity (other than its consultants, agents and affiliates) confidential information relating to this Agreement or a Work Order, including but not limited to information relating to pricing, The Client’ end user client information, and technical specifications furnished by the other party, either orally or in writing or any other information that would reasonably considered confidential given its nature and the context in which it was furnished (collectively, “Confidential Information”), except as required by law or by governmental regulations, requirement or order, or as may be necessary to fulfill its obligations hereunder. Each party further agrees to take reasonable care to ensure that no unauthorized person shall have access to such information. Any information or other property furnished to a party by the other party shall be returned to the disclosing party upon request at the termination of this Agreement. Nothing in this Agreement or a Work Order prohibits or limits a party’s use of information (including but not limited to ideas, concepts, know-how, techniques, and methodologies) (a) previously known to it, (b) independently developed by it, (c) acquired by it from a third party which is not, to its knowledge, under an obligation not to disclose such information, or (d) which is or becomes publicly available through no breach of this Agreement or a Work Order.
12 Independent Contractors. In connection with this Agreement or a Work Order, DK Web Development is an independent contractor in relation to The Client. Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between the parties for any purpose. Neither party will have any right or authority to act on behalf of, or to obligate or bind the other party, and neither party will represent to any third party that it has such right or authority.
13 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of Pierce County, WA without giving effect to its conflict of law provisions. Each party agrees to submit to the non-exclusive jurisdiction of the courts of the city of Pierce County, WA in relation to any claim arising under or in connection with this Agreement and each Work Order.