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TERMS OF USE
1. Acceptance of Terms: By accepting The ORBIS1MEDIA Web Design' (O1M) Terms of Service (TOS) electronically or in writing, and/or by using O1M' services, including but not limited to, submission of content to O1M' 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.
O1M 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.orbis1media.com/terms.html. Failure to comply with the TOS may result in account termination. By using O1M' 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 5 days from the date of initial sale, Client agrees to (and hereby signs) the TOS and O1M 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 O1M services including the purchase of additional services or additional websites or accounts at a later date.
2. Description of Service: O1M 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 O1M' services may include certain communications from O1M such as advertisements, notices, service announcements and newsletters. Client is responsible for obtaining access to O1M' 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 O1M' services.
3. Electronic Delivery Policy: O1M is a website-related business and communicates with its Clients electronically. When Client accepts this TOS Client consents to receive electronically from O1M any notices, agreements, disclosures, or other communications (Notices). Client agrees that O1M may send electronic Notices in either of the following ways 1) To the email address provided to O1M at the time of sale or 2) to the new email address account Client set up through O1M. Client agrees to check the designated email addresses regularly for Notices. Notice from O1M is effective when sent by O1M, regardless of whether the Notice is read or received by Client.
4. Privacy Policy: Personal data and certain other information about the Client are subject to O1M' Privacy Policy. For more information see the privacy policy at http://www.orbis1media.com/privacy.html. By using O1M' services Client also agrees to the most current version of O1M' Privacy Policy.
5. Call Monitoring and Recording Privacy Statement: As part of O1M' commitment to providing the best possible service O1M may monitor and record phone calls answered by O1M and made by O1M. O1M may also archive recorded voice mail messages. O1M 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 O1M to identify how O1M can better serve its customers.
6. Unacceptable Practices: As O1M strives to offer the very best service, there are certain guidelines and policies that must govern O1M' 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 O1M' services. Such decisions are at the sole discretion of O1M. Unacceptable practices include, but are not limited to:
As an O1M 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 O1M harmless in the event of third parties' legal issues brought against Client for Client's business practices. O1M retains the right to terminate any accounts that are in violation with the letter or spirit of this TOS. O1M 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 O1M 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 O1M 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 O1M may or may not pre-screen content. O1M 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 O1M or not, including any reliance upon accuracy, usefulness or completeness.
Client acknowledges that O1M 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 O1M and the public.
7. Intellectual Property Policy: O1M respects intellectual property laws, including those applicable to copyright and trademark, and the intellectual property of others. O1M may terminate accounts for copyright or trademark infringement, or for any other reason O1M deems appropriate as it may relate to Client's use of another's intellectual property. If you believe your work has been copied and is accessible on an O1M' website please see O1M's Intellectual Property Policy at http://www.orbis1media.com/ipp.html.
O1M 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 O1M 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).
Client content that is sent to O1M will remain the intellectual property of the Client. O1M 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. O1M will attempt to honor requests to return original content; however, O1M has no liability and does not guarantee the return of any content to Client.
Domain names purchased by O1M and website designs, databases, stores, or programs created by O1M are the property of O1M until Client has paid all fees including one full year of monthly hosting. (See Domain Names Purchase/Hosting Agreement)
8. 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.
9. Interstate Communications: Client acknowledges that by using O1M's services Client will be causing communications to be sent through O1M's 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 O1M's 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 O1M.
10. Website Construction Procedure: With help and input from the Client, O1M 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 Online Design Packet (ODP). Client must electronically accept the TOS before access is granted to the ODP. 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 two weeks 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 ODP, links to sample sites the Client likes are for general information purposes only and assist O1M 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 O1M' invoice and do not infringe upon the intellectual property rights of others.
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. The O1M QC team may review the text before site goes live to correct any possible errors. O1M 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 O1M 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 O1M 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 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. Upon request, Client is also provided with an optional welcome website shortly after the initial sale. The welcome website is a temporary website Client can modify and send customers to while the custom website is being built. Client may choose not to have a welcome website if so desired
11. Client Approval : Client is responsible for testing the functionality of the website upon O1M's 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 5 business days to O1M's 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 5 business days to O1M's 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 O1M completes all of the work per the original sale and database write ups, O1M reserves the right to move the site live and deem the work to be completed without Client's permission if Client will not give approval of the work.
12. Website Change Requests Before and After Website Goes Live: O1M agrees to build a website and/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 O1M's standard hourly rate. O1M is not obligated to complete Client requests or changes outside of the scope of work on the original invoice. If O1M does not agree to Client requests or changes, Client is still obligated to pay all fees incurred and due.
13. Database/Programming: O1M 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. O1M 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 5 business days it will be deemed to be accepted by the Client and O1M may 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 O1M's standard hourly rate. There is no guarantee that changes made by O1M 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 O1M's 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.
O1M 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 O1M to enter data into the database, the Client will be charged, and agrees to pay, for such data entry at O1M' standard data entry rates.
14. E-commerce/Stores: Client is required to submit store content via O1M' content spreadsheet. O1M 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 O1M 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 O1M' 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 O1M' standard hourly rate for requested changes. (See Database/Programming)
Client is responsible for testing the functionality of the e-commerce store upon O1M' request for approval and notification that the website has been completed. This includes but is not limited to testing the payment functionality. O1M 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.
15. 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 will 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 5 business days, the summary will be deemed to be accepted, and O1M 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.
16. Expedited Services: While O1M does not guarantee a time frame for the completion of any custom website, it may offer an optional expedited service to Client for a fee. Expedited service is not available for all accounts and all requests for expedited service must be approved by O1M at its sole discretion. Client understands and agrees that Client's use of expedited service does not guarantee that Client's website including its corresponding design, enhancements, databases, e-commerce stores, flash, etc, will be completed more quickly than they would be without the use of the expedited service. The expedited service fee only ensures that O1M will make reasonable efforts to more quickly assign designers and programmers to the account in an effort to facilitate development than would be the case under the ordinary developmental process.
The successful use of expedited service is contingent upon Client's timely acceptance of the Terms of Service, payment of any and all fees due, completion of the Online Design Packet (ODP), acceptance of any project specification documents prepared by O1M and Client's timely cooperation with O1M in any solicitation for information related to the website's development.
If expedited service is offered to Client by O1M, Client may be presented with an estimated date of completion. Client understands and agrees that such estimated dates of completion are estimates only and may apply only to one particular element of the website, i.e. database, flash, e-commerce, design, and not necessarily to multiple elements of the website or to the website collectively. Under no circumstances will O1M guarantee the respective portion or portions of the website subject to the estimated date of completion to be completed sooner than the estimated date of completion. Should circumstances arise that make it impossible to complete the portion or portions of the website that are subject to the estimated date of completion by the estimated date of completion, including but not limited to Client failure to provide O1M with requested information in a timely manner, O1M reserves the right to change the estimated date of completion accordingly or to cancel the expedited services and refund a portion of the expedited service fee to Client. In no case shall the portion of the expedited service fee to be refunded be greater than fifty percent (50%) of the expedited service fee. Regardless of whether work is completed by the estimated date of completion, Client remains liable to O1M for any and all other charges related to the website's development.
17. Additional Services: Client may purchase at an additional monthly cost additional services offered by O1M. 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. O1M 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.
18. Email Accounts: Based on the hosting support package
purchased, email accounts are also 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:
19. Technical Support: O1M' technical support department should be contacted at help@orbis1media.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 O1M' technical support services, including but not limited to screen share sessions, Client acknowledges and understands that O1M does not warranty that technical support services will meet Client's requirements or be error free. (See Disclaimer of Warranties and Limitation of Liabilities.)
20. Customer Service: The Thomas Group Web Design strives to offer the
best service available. Customer service complaints or
concerns should be emailed to:
21. Use and Storage: Client acknowledges that O1M may establish general guidelines and limits concerning use of O1M' 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 O1M' servers on Client's behalf. O1M periodically backs up the websites it hosts. However, Client acknowledges that O1M 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 O1M may be lost if data loss occurs after a scheduled backup by O1M.
22. Server Security Practices: O1M utilizes security practices that comply with standards set by the Payment Card Industry (PCI) in maintaining its servers. O1M will not modify its shared-hosting server settings and configurations to Client's individual preferences. O1M routinely scans its servers to ensure compliance with good security practices. Unauthorized security scanning and penetration testing of shared-hosting servers by the Client is strictly prohibited.
O1M at its sole discretion may allow or perform server administration and or customization to client accounts that are hosted on a virtual private server (VPS) or a private server. Such server customization and administration is subject to O1M standard hourly rates and Client agrees to pay for any and all such customizations requested.
23. Updates to Live Website/Design Time: Based on Client's hosting package, O1M 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 O1M' 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 O1M 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
O1M is not responsible for any changes Client makes to website, or if Client breaks the website. Time required by O1M to repair changes made by Client will be billed to Client at O1M' standard hourly rate if it exceeds available "design hours".
24. 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 O1M.
Domain names purchased by O1M and website designs, databases, stores, or programs created by O1M are the property of O1M 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. O1M expressly reserves the right to retain one copy of any website designs, databases, stores, flash, programs, writings, or any other work created for Client for evidentiary purposes.
Upon transfer of domain and/or website to Client or another service provider, at anytime, Client agrees that O1M has met in full its obligation to Client, and O1M 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 third party service. O1M 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 O1M will 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. Upon cancellation or termination of Client's account, O1M will no longer renew any domain names associated with the account and Client assumes sole responsibility for their renewal thereafter.
25. Marketing Representations: O1M makes no representations as to the marketing of Client's products, services or sales. Client's obligation to pay fees due to O1M 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. O1M is not responsible for marketing of Client's website including search engine rankings.
26. 90-Day Satisfaction Guarantee: ORBIS1MEDIA Web Design provides a 90-day satisfaction guarantee. O1M will continue to change and modify the Client's website to Client's liking, within 90 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 90 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 O1M' standard hourly rate over and above the initial design fee paid. O1M does not guarantee that the website designed will be exactly what the client has envisioned. O1M' best effort will be given for the 90-day satisfaction guarantee but O1M is not obligated to complete multiple redesigns or modifications. While O1M may agree to make requested changes and to bill the Client's design time or bill the Client directly, O1M is not obligated to complete Client requests or changes outside of the 90-day satisfaction period. If O1M does not agree to Client requests or changes, Client agrees and is still obligated to pay all fees incurred and due.
27. 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 is billed and due every month beginning 60 days from the date of the original sale. The Client hereby requests that O1M renew and bill monthly hosting fees every 30 days thereafter, 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 O1M' 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.
O1M reserves the right to change prices at any time including monthly hosting amounts and hourly design fees.
O1M accepts payment via wire transfer, check, credit card and EFT debit from Client's bank account. Upon Client's authorization of payment to O1M 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 O1M' billing department. Client should not email new billing information for security purposes.
O1M reserves the right to hold Client, its principals and authorized representative(s) jointly and severally liable for any and all amounts owed.
28. Billing Disputes: O1M charges up to a $25.00 fee for returned checks and a $200.00 fee to handle unauthorized credit card disputes. If O1M does not receive payment in full when due, O1M 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. O1M 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 O1M for collecting from Client. O1M does not agree to, and will not honor, any limiting notations made by a Client on a check.
If Client wishes to dispute a charge Client must first contact O1M's billing department and must allow 10 business days for a response. To avoid any dispute about Client's attempt to contact O1M, Client must send the request in writing to:
Attn: Billing Department: ORBIS1MEDIA Web Designs 1221 Stone Ln, Suite 100 Celina, Tx 75009.
Requests may be emailed to
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.
29. Termination/Cancellation of Services: O1M, 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 O1M believes Client has violated the TOS. O1M 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 O1M' services under any provision of this TOS may be effected without prior notice and that O1M may deactivate or delete Client's account and all related information files. Client agrees that O1M shall not be liable to Client or any third-party for any termination of services. Paid accounts that are terminated will not be refunded. O1M may suspend or terminate accounts, and shut down website for accounts, that become delinquent for more than 30 days, in which case Client remains responsible for any unpaid balance owed to O1M. Charges for monthly hosting will continue to incur for delinquent accounts until Client's one year hosting obligation has been met even if account has been suspended or terminated. O1M also reserves the right to discontinue the designing of Client's website at any time, at O1M' sole discretion, with an appropriate refund to the Client. Under no circumstances is the refunded amount to exceed the amount collected by O1M.
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 O1M.
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 O1M 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 O1M 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: ORBIS1MEDIA Web Designs 1221 Stone Ln, Suite 100 Celina, Tx, 75009
Requests may be emailed to help@orbis1media.com. If Client chooses to send request by email, a copy of the request must also be sent by mail as confirmation.
30. Cancellation Effective Date: Client may terminate hosting 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 O1M' 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 O1M 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.
31. 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 90 days of the initial sale and prior to the completion of the website according to the following schedule: A) A minimum of a 50% cancellation fee will be retained by O1M on cancelled accounts even if no work has been started and no content yet submitted by the Client. B) A minimum of a 75% cancellation fee will be retained by O1M on cancelled accounts if work has been presented to the Client; or O1M has made multiple attempts to work with the Client, and Client has not responded to those attempts C) A 100% cancellation fee will be retained by O1M and NO REFUND issued if any changes and/or modifications requested by the Client have been completed by O1M. 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. D) 100% cancellation fee will be retained and NO REFUND will be issued by O1M if Client cancels after 90 days from the initial sale.
MINIMUM CANCELLATION FEE - Client agrees that a minimum cancellation fee of 50% will be retained by O1M on all cancelled accounts even if no work has been started. The cancellation fee is charged to compensate O1M for up-front expenses and services rendered, including but not limited to, costs incurred for the purchase of domain name(s) for developing the website, securing server space, creating the temporary website or space saver, employee expenses, marketing, and overhead costs.
ENHANCEMENT SALES - A 100% cancellation fee will be retained by O1M 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, security certificates, design time, domain names, search engine marketing, etc. A minimum cancellation fee of 50% will be retained on cancelled expedited services. Client agrees that a minimum cancellation fee of 50% will be retained by O1M on all cancelled enhancement purchases if cancelled within 90 days of the enhancement sale and if work has not yet begun. NO REFUND will be issued by O1M if client cancels after 90 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).
By accepting a refund in full or refund less cancellation fee, Client agrees that the matter is settled in full and releases O1M, its officers, owners, members, agents and employees of any and all contractual obligations and waives all claims of any nature, including legal action, against O1M' its officers, owners, members, agents and employees.
32. 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 O1M in writing which is to include payment authorization and new billing account information from the new owner, documentation of the ownership transfer (purchase agreement etc), documentation of copyright transfer, and acceptance of O1M's TOS by the new owner.
33. ORBIS1MEDIA Web Designs Proprietary Rights: Client acknowledges and agrees that O1M' 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 O1M' services.
34. Use of Client Information: Client hereby agrees that any information or ideas submitted to O1M by any means may be used by O1M 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 O1M' Privacy Policy.
Client herby gives permission to O1M to use samples or links to Client's custom website designed by O1M for marketing and advertising purposes, including but not limited to, use in O1M' online portfolio.
35. Third-Party Services: From time to time third parties may offer services or software to O1M' clients, clients may request the use of third-party services or software, or O1M may suggest the use of third-party services or software to its 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. It is Client's sole responsibility to ensure that the use of third-party services or software complies with third-party terms of use and licenses, these Terms of Service, and any and all applicable laws. Client assumes full responsibility for, and releases O1M from, any and all liability associated with the use of third-party services or software. O1M 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 O1M' services. Client also agrees that O1M is under no obligation to provide Client with any enhancements, updates, or fixes to make O1M' services accessible through any third-party applications.
36. Contract Service Providers: O1M 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 O1M employee directly for services. All payments for services rendered must be made directly to O1M. Contract Service Providers are independent contractors and are required 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.
37. Disclaimer of Warranties: CLIENT'S USE OF O1M' SERVICES IS AT CLIENT'S OWN RISK. O1M' SERVICES ARE PROVIDED "AS IS". O1M 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. O1M DISCLAIMS ANY WARRANTIES REGARDING O1M' SERVICES INCLUDING THAT THEY WILL MEET CLIENT'S REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. O1M DISCLAIMS ANY WARRANTIES REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF O1M' SERVICES, INCLUDING RESULTING SALES AND WEB TRAFFIC. O1M DISCLAIMS ANY WARRANTIES REGARDING THE MARKETING OF CLIENT'S PRODUCTS, SERVICES, SALES, OR WEBSITE. O1M DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH O1M' SERVICES, OR LINKS PROVIDED BY O1M' SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE PROVIDED BY O1M OR OBTAINED THROUGH LINKS PROVIDED THROUGH O1M' SERVICES.
CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF O1M' 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.
38. Limitation of Liability: CLIENT UNDERSTANDS AND AGREES THAT O1M, ITS 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 O1M 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 O1M' SERVICES, RELIANCE ON O1M' SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF O1M' 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 O1M' 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 O1M' 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 O1M' 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 O1M 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. O1M' full and complete liability, for any reason whatsoever, shall be limited to the full refund of all monies paid to O1M.
39. Tort Claims and Other Claims: Client waives all tort claims, strict liability claims and any and all other legal and equitable claims to the extent permitted by law against O1M, 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. Client further agrees that it may only bring claims against O1M in Client's individual capacity and not as a member of a class.
40. Indemnification: Client agrees to defend, indemnify and hold harmless O1M, 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 O1M' 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 O1M 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 O1M, 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.
41. 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, facsimile or certified mail, return receipt requested, to the address set forth below. If Client chooses to send request by email or facsimile, a copy of the request must also be sent by mail (to the address below) as confirmation of the request.
ORBIS1MEDIA Web Designs 1221 Stone Ln, Suite 100 Celina, Tx 75009 Attn: President
42. Contact ORBIS1MEDIA Web Designs Client may contact O1M at 214-457-5535 M-F from 8:30 -5:00 CST. Client may visit our website at www.orbis1media.com at any time. Client may also email O1M at the following department email addresses:
43. Negative Comments/Slander: Client specifically agrees not to engage in negative comments or slander regarding O1M, including but not limited to publishing, or causing to be published, complaints or derogatory comments regarding O1M 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 O1M 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, O1M 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.
44. 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 O1M 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.
45. Jurisdiction: This agreement shall be governed exclusively by the laws of the State of Texas, USA, without regard to any conflicts of law provisions thereof, as a contract entered into and performed entirely within the State of Texas. 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 Texas, County of Dallas, and the parties expressly consent to personal jurisdiction and venue therein and waive any objection based on forum non conveniens or otherwise.
46. 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 O1M. 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 O1M) as selected by O1M.
47. Governance: O1M 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.
48. Electronic Signatures: Selecting and submitting "accept" on the electronic copy of the TOS, submitting content through the ODP, making payment, or submitting information or documents to O1M so that O1M may perform services for the client, the same shall constitute an electronic signature as defined by Chapter 43 of the Texas Business & Commerce Code, also known as the UNIFORM ELECTRONIC TRANSACTIONS ACT.
49. 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 O1M. 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 ORBIS1MEDIA Web Design 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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