Terms of Service & Legal Disclaimer
SmartWebby.com Services Legal Agreement - Terms of Service (TOS)
NOTICE TO CLIENT: THIS SERVICE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND JANDUS TECHNOLOGIES. PLEASE READ THIS AGREEMENT CAREFULLY. BY AVAILING ANY SMARTWEBBY SERVICE(S) YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. THIS MEANS THAT, BY ORDERING, PURCHASING OR USING ALL OR ANY OF OUR DESIGN & PROGRAMMING SERVICES YOU AND ANY LEGAL ENTITY YOU REPRESENT ACCEPTS ALL TERMS AND CONDITIONS OF THIS AGREEMENT UNCONDITIONALLY. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. YOU ALSO AGREE THAT THIS AGREEMENT IS ENFORCEBLE AGAINST YOU AND/OR ANY LEGAL ENTITY THAT ORDERED OUR SERVICES AND ON WHOSE BEHALF YOU ORDERED OUR SERVICES. THIS AGREEMENT ALSO CONTAINS LIABILITY DISCLAIMERS AND IMPORTANT REFUSAL, CANCELLATION & REFUND TERMS REGARDING OUR SERVICES.
(a) "Smart Webby", "SmartWebby", "we", "us" and "our" refers to SMARTWEBBY.COM, JANDUS TECHNOLOGIES, and its suppliers and licensers, if any.
(b) "Client", "You" and "Your" refers to the individual client (direct or outsourced client or customer) and any legal entity that ordered SmartWebby services and/or on whose behalf it is/was ordered. The individual & all legal entities involved are legally bound by this Service Agreement.
(c) "project", "work", "work order", "service", and "services" refers to the Smart Webby design and/or programming service(s) ordered by Client, irrespective of its present status (yet to start, in process, partially or fully completed), the resulting product, all its copies (modified or unmodified) and all its derivatives.
SERVICES TERMS & CONDITIONS
At Smart Webby we aspire to provide the best possible design and programming services to our clients worldwide. To do so, we have to set forth some guidelines for everyone to follow. These terms and conditions override any phone conversation, email, chat session, or contact of any kind with any Smart Webby personnel. This Legal Agreement ("Service Agreement") also sets forth the terms and conditions of Your use of Smart Webby Design and Development services.
All services provided by Smart Webby may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any International, Indian/United States/Canadian, State/Provincial or City law is prohibited. This includes, but is not limited to: copyrighted material, trademark, intellectual property, material we judge to be threatening or obscene, or material protected by trade secret and other statute without proper authorization. Client agrees to indemnify and hold harmless Smart Webby from any claims resulting from the use of the provided service which damages a user or any other third party. SmartWebby disclaims any responsibility for the content of any client or third party materials provided to create/develop the service or through the service and client agrees to be solely responsible for all materials related to the service provided.
The Client is engaging SmartWebby for the specific service requested on a non-exclusive basis. This service on completion might entail uploading the resultant product to the Client's web space on an Internet Service Provider's computer. The Client hereby authorizes SmartWebby to access this account, and authorizes the Internet Service Provider to provide SmartWebby with "write permission" for the client's hosting account directory, and any other directories or programs which need to be accessed or made available for the successful completion of the project.
Payment of Fees and Project Scope
If you have been sent a project proposal it will contain the Fees Payment Schedule and the Project Scope. In all other cases the email communications between Client and SmartWebby shall serve as the basis for the agreement on this point. Thus unless SmartWebby instructs you otherwise by email, the general understanding for Payment of Fees to SmartWebby for the service ordered are due and payable on the following schedule: 50% as down payment, 50% when the project is above 95% complete, in accordance with the project scope, and ready to be uploaded or delivered within seven (7) days. All fees charged will be in US Dollars. If payment is being made by credit card please note that SmartWebby set or inter bank conversion rates might result in up to 5% variance in cost to Client for the payment. In general payment via PayPal doesn't entail any variance in cost to Client.
Payments must be made promptly on request. If a payment due remains delinquent 30 days after the Client is notified, an additional 5% penalty will be added for each month of delinquency.
Third-Party Copyrights and Trademarks
The Client represents to Smart Webby an unconditional guarantee that all elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Smart Webby for inclusion in the project are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Smart Webby from any claim or suit arising from the use of such elements furnished by the Client.
Client agrees to provide all related data (information requested by SmartWebby, preferences and mandatory requirements, content copy and high quality images) for use during design/development and/or inclusion in ordered service before commencement of the project schedule. You represent and warrant that You will not violate any law, third party rights, or publish any false, inaccurate, misleading, defamatory or libelous content or statements. Failure to comply or if non-compliance is detected will result in the automatic non-refundable cancellation of Your work order. All materials provided should be digital copies and not original material. SmartWebby may require You to re-submit images should the images be determined to not be of high enough quality. SmartWebby will not begin work until all requested materials and assurances of rights have been received from Client. Smart Webby reserves the right to reschedule a project at any time and at its sole discretion. All schedules are tentative and You agree to not hold SmartWebby liable under any circumstances for any delays or rescheduling whatsoever on its part. Client agrees to make all payments requested by SmartWebby before, during and after commencement of the project as and when invoiced or notified. Failure to send requested data and/or payment(s) within thirty (30) days from request will result in the cancellation of Your work order. You also agree to respond to any requests for feedback within seven (7) days. Failure to respond within thirty (30) days will result in the cancellation of Your work order. No credits or refunds will be given for such cancellations and Client agrees to these conditions.
SmartWebby will strive toward Your satisfaction, but does not guarantee that all of Your requests will be satisfied if they are unreasonable or unable to be accomplished within the scope of the service provided. SmartWebby does not warrant that the service provided will meet the client's requirements or that the operation of the resultant product will be uninterrupted or error-free. Client agrees that the entire risk as to the quality and performance of the resultant product is with Client. Your use or publication of any work delivered or completed is acknowledgement of Your satisfaction with the service and releases SmartWebby from any obligation for further revisions or alterations. No credits or refunds shall be given of the advance paid on the project or parts/phases of the project for any reason including dissatisfaction with the service(s) provided, unless as set forth in this service agreement.
Cancellation & Refund Policy
Smart Webby reserves the right to cancel a project at any time. Client may cancel a project any time before commencement of work for a 100% refund - minus the cost of any time spent by SmartWebby on client communication, analysis, research or support. In case of custom web design projects, on commencement of work, the 50% advance payment made is NON-REFUNDABLE and goes towards the time spent on designing Your website layout(s). In case You have paid 100% upfront but are not satisfied with the design(s) then You can request a refund of the balance 50% paid but within 60 days of commencement of the project. No refund is given after 60 days of project start date. Refund requests may only be made PRIOR to a design being approved for conversion to web pages. If the design has been approved for conversion, no refund shall be given, irrespective of whether Smart Webby has agreed to a redraw of the project layout(s) or not. In case of web programming and development projects, on commencement of work, NO REFUNDS are given and the project will be executed as agreed between Smart Webby and the client. The client may request revisions within the original project scope, however revisions outside the original project scope which require additional hours, will require a request for cost estimate of the additional work and result in additional fees to be paid by the client, as and when requested. Disputes arising in the case of partially or fully completed work will result in the automatic cancellation of Your legal rights to use the services provided by SmartWebby, in part or in whole, of any service that has not been 100% paid for. Client agrees that SmartWebby shall be the sole arbiter of what is and is not the paid up portions of the service(s) ordered.
In case of: (A) Frequent revisions to project scope by Client; OR, (B) Client non-compliance to schedule in terms of providing timely Client feedback resulting in re-scheduling of the project more than once; OR, (C) Failure on the part of Client to send requested data, feedback, reply to communications and/or payment(s) within thirty (30) days from request/our last email; will be grounds for immediate cancellation of Your project/work order without credit or refund of any monies paid.
In event of any cancellations, only a first-time client is eligible for a refund. For example, if this is Your second or more project with us OR if You have worked on a project with us before that had been cancelled, You will not be eligible for a refund.
A project done for a Direct Client, who is the actual recipient of the service availed, is deemed a regular project. Projects carried out for Outsource Clients who have a client who is paying for the project indirectly thru them and/or where the Client is not the actual recipient of the service availed is deemed an outsourced project.
For Direct Clients: We require all web sites and applications designed and/or programmed by us to carry the Designed by SmartWebby.com or Powered by SmartWebby.com phrase with link or a small 22x11 SmartWebby Watermark logo linking to SmartWebby.com on all the web pages. In case client does not want SmartWebby to brand the service(s) provided there is a fixed additional cost of 15% on the total cost of the project which when paid will result in us removing our branding notice from the service(s) provided - Client agrees to not remove the branding in their own capacity or with the help of a third party. Client agrees to allow the branding of the services and agrees to not remove, obscure, or alter any branding notice which may be affixed to or contained within the services, and agrees to do so for as long as the service(s) provided by SmartWebby, in full or in part, unmodified or modified, original or as its derivative(s), is in use. Client agrees to a penalty of 10% of project cost in addition to branding removal costs in case the SmartWebby branding notice is removed without the prior written permission of SmartWebby on payment of the branding removal cost. Client also expressly agrees to allow SmartWebby to use any materials related to the service provided for any use SmartWebby sees fit, including but not limited to use and description of the service in SmartWebby's portfolio and marketing materials, irrespective of whether the branding cost has been paid or not.
Outsource Clients: Projects carried out for Outsource Clients automatically attract a mandatory fixed additional cost of 30% on the regular cost of the project. You get to brand the project developed by us as Your own subject to the Ownership terms stated below. If You prefer to co-brand the project along with us then there is only a 15% extra charge on the regular cost of the project. Client who agrees to co-brand the project expressly agrees to allow SmartWebby to use any materials related to the service provided for any use SmartWebby sees fit, including but not limited to use and description of the service in SmartWebby's portfolio and marketing materials.
The service provided, the resulting product, all its copies (modified or unmodified) and its derivatives of it belong to SmartWebby. The service provided, the resulting product, all its copies (modified or unmodified) and its derivatives are copyrighted and are protected by Indian copyright laws and international treaty provisions with all rights reserved.
Assignment of Rights
In case of Logo Design Projects, on receiving 100% payment for the project, SmartWebby shall assign full rights of the final logo to Client, including copyright, patent, trademark, trade dress, or other types of intellectual property rights. Client shall not receive or claim any rights for any and all other logos designed during the course of the project. In case of requests for owning multiple logos by the Client, each additional logo shall entail a $150 fee for receiving its source files and assignment of rights to it to the Client.
In case of Outsourced Custom Website Design Projects, on receiving 100% payment for the project (including 30% additional branding cost on cost of regular project), SmartWebby shall assign full rights of the final website design to Client, including copyright, patent, trademark, trade dress, or other types of intellectual property rights. Client shall not receive or claim any rights for any and all other layouts designed during the course of the project. In case of requests for owning multiple designs by the Client, each additional design shall entail a $1000 fee for receiving its source files and assignment of rights to it to the Client.
In case of Graphic Design, Regular Custom Website Design and Regular Programming Projects, on receiving 100% payment for the project, SmartWebby will grant You an unrestricted exclusive license to use the product resulting from the purchase of the service for the duration of its use, in full or in part, modified or unmodified.
In case of Flash Animation and Flash Programming Projects including both Regular and Outsourced projects, on receiving 100% payment for the project (in the case of outsource projects - including 30% additional branding cost on cost of regular project), SmartWebby will grant You a restricted exclusive license to use the product resulting from the purchase of the service for the duration of its use, in full or in part, modified or unmodified. The resulting product will be the SWF file and associated files that work together for the service provided. Client agrees that SmartWebby reserves the right to not include the FLA flash source file as part of the source files delivered on completion of the project, at its sole discretion. Furthermore Client understands and agrees that by withholding certain source files SmartWebby is only protecting its intellectual property rights to the service and/or product and agrees to not hold SmartWebby liable for any claims arising out of its decision to do so. The restriction here is that the Client will not be able to make some or any changes to the product, and will have to get them done thru SmartWebby.
In case of Outsourced Programming Projects, on receiving 100% payment for the project (including 30% additional branding cost on cost of regular project), SmartWebby will grant You an unrestricted exclusive license to use the product resulting from the purchase of the service for the duration of its use, in full or in part, modified or unmodified. Since programming modules between projects can very easily be in common we do not offer an option to own the project 100%. However in the case of sections of the projects that are unique and exclusive to the project the Client can request a quote for Assignment of Rights on a per project basis. SmartWebby explicitly reserves the right and sole discretion to turn down any request for Assignment of Rights, without giving any reason whatsoever. Client agrees to be solely responsible for checking with SmartWebby if Assignment of Rights is possible for the sections of the project in question before commencement of the project.
In projects corresponding to an Exclusive License being granted, SmartWebby does not grant any express or implied rights to You under SmartWebby patents, copyrights, trademarks, or trade secret information. The exclusive license granted in the above cases shall restrict SmartWebby from selling the exact same resultant product to another Client. The exclusive license corresponds to the whole resultant product and not parts of it. For example client shall not and agrees to not claim any liability in case any other project developed by SmartWebby has similar functionality, look and/or features to their project but is not on the whole a copy of their project. Client agrees that SmartWebby shall not be held liable and is free to sell any service that looks similar to and/or contains features also present in Client's project but is not an exact replica, as it deems fit. Client agrees to be solely responsible to safeguard all project files delivered and to prevent any unauthorized copying of the services or resulting products.
Violation of any term or condition set forth in this Service agreement automatically terminates Your license to use or rights to the SmartWebby service provided, the resulting product, all its copies (modified or unmodified) and its derivatives resulting from Your purchase of the service. In case of project usage license violations Client agrees to be held liable to pay SmartWebby a liquidation penalty fee towards unspecified damages in the range of of 3-10 times the cost of the project. Client also agrees that SmartWebby shall be the sole arbiter in such an event to decide the penalty due on a per project basis.
Rights, Termination & Breach of Contract
SmartWebby explicitly reserves the right and sole discretion to:
(i) Modify its pricing without notice to Client;
(ii) Establish limits and guidelines concerning the use of its services;
(iii) Display screen shots of the resulting product online, in marketing materials or in any other manner it deems fit;
(iv) Assign other Web designers or subcontractors to this project to insure the right fit for the job as well as on-time completion.
SmartWebby has no obligation to monitor or backup Your use of the service(s) it provides, but reserves the right in its sole discretion to do so.
SmartWebby shall have the right, upon written notice to Client, to terminate this Agreement, Your project and/or the right to use the service provided, sue and/or make client liable for breach, in case:
(i) Of any use of our services in: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties, OR, activities prohibited by law, activities designed to encourage unlawful behaviour by others, such as hate crimes, terrorism and child pornography, activities that are torturous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable in the sole opinion of SmartWebby, OR, activities designed to impersonate the identity of a third party, OR, activities designed to harm minors in any way, OR, any other activities whether lawful or unlawful that SmartWebby determines, in its sole discretion, to be harmful to its other customers, operations, or reputation;
(ii) The service provided results in, or is the subject of, legal action or threatened or proposed legal action, against SmartWebby, without consideration for whether such legal action or threatened or proposed legal action is eventually determined to be with or without merit;
(iii) Of frequent revisions to project scope by Client;
(iii) Of failure on the part of Client to send requested data, feedback, reply to communications and/or payment(s) within thirty (30) days from request/our last email.
Breach of contract also grants SmartWebby explicitly the right to automatically cancel or suspend Your project/work order, shut down Your website and/or delete content and files to protect our work, copyright or reputation - all without credit or refund of any monies paid.
Refusal of Service
Smart Webby shall be the sole arbiter of what is and is not a violation of these acceptable use policies. Smart Webby reserves the right to terminate any client account at any time and for any reason. Smart Webby reserves the right to delete all content and files upon termination.
Specifically, we do not accept website projects that contain content or links to content that include, but is not limited to:
(A) Sex, pornography, violence and other tasteless images or otherwise adult-oriented content. (OR)
(B) Content that exploits children or results in their exploitation in any manner whatsoever. (OR)
(C) Promotion of the excessive use of alcohol, tobacco or illegal substances. (OR)
(D) Violence, profanity, expletives or inappropriate language. (OR)
(E) Libelous and defamatory material, impersonations, advocating, promoting, or encouraging violence against any person, organization, or the government, and/or is contrary to public policy or otherwise unlawful. (OR)
(F) Promotion of illegal activity such as copyright infringement, software piracy, racism, hate, mail fraud, spam, pyramid schemes, or other advice not permitted under applicable law.
Smart Webby reserves the right to withhold any pre-paid funds of any client's project for violations of our terms, misuse or fraud. Smart Webby reserves the right to refuse, cancel, or suspend service at our sole discretion.
IN THE EVENT OF A DISPUTE, CLIENT AGREES THAT TOTAL LIABILITY OF SMARTWEBBY WILL NOT EXCEED THE PROJECT COST PAID BY CLIENT LESS THE COST OF ALL PARTS, MODULES, PHASES, SUB-PROJECTS AND ASSIGNMENTS ALREADY APPROVED, DELIVERED OR SET LIVE ONLINE. IN CASE OF DESIGN PROJECTS OR DESIGN COMPONENTS OR PHASES OF ANY OTHER PROJECT, CLIENT ADDITIONALLY AGREES THAT ALL NON-REFUNDABLE ADVANCE PAYMENTS, TERMS OF WHICH ARE SET OUT IN OUR REFUND POLICY, SHALL ALSO BE EXCLUDED FROM THE TOTAL LIABILITY OF SMARTWEBBY IN THE EVENT OF A DISPUTE.
CLIENT ALSO AGREES TO NOT HOLD SMARTWEBBY LIABLE TO REFUND OF ANY MONIES PAID IN CASE OF PROJECT CANCELLATION BY SMARTWEBBY DUE TO ANY OF THE FOLLOWING REASONS:
(A) UNLAWFUL OR FRADULENT USE OF ANY SMARTWEBBY SERVICE BY CLIENT (EVEN IF SMARTWEBBY WAS CONVINCED IT WAS OR BELIEVED IT TO BE LEGAL). (OR)
(B) FREQUENT CHANGE IN PROJECT SCOPE BY CLIENT. (OR)
(C) FAILURE ON THE PART OF CLIENT TO COMPLY WITH SMARTWEBBY'S SCHEDULE. (OR)
(D) FAILURE ON THE PART OF CLIENT TO RESPOND TO SMARTWEBBY COMMUNICATIONS, INVOICES OR REQUESTS FOR DATA/INFO. (OR)
(E) ANY CLIENT BEHAVIOUR OR ACTIVITY WHICH RESULTS OR CAN RESULT IN: (i) LOSS OF BUSINESS TO SMARTWEBBY, OR (ii) LOSS OF GOOD REPUTATION OF SMARTWEBBY, OR (iii) LOSS OF COPYRIGHT OR INTELLECTUAL PROPERTY RIGHTS OF SMARTWEBBY, OR (iv) ADVERSLY AFFECTING ANOTHER CLIENT, PROJECT OR PROJECT'S SCHEDULE.
Client agrees to keep the source files of the resultant product delivered as a result of availing SmartWebby services, very safe to deter any possibility of misuse. Client agrees to be solely liable for all users who have access to the project (example: an employee, Your client or anyone else) and accepts responsibility for their compliance to all terms and conditions of this agreement.
Payment of any fees or advance towards SmartWebby services, including but not limited to Online Payment or Payment by Bank Transfer, is an acceptance of the terms and conditions of this Service Agreement. The Client is responsible and agrees to be held responsible for being aware of the Terms of Service governing use of SmartWebby services. The Client not having read or not being aware of this agreement or the terms set forth in it does not constitute as grounds for non-acceptance of this Service Agreement. Any Client of SmartWebby, past and present, is bound by this Service Agreement.
Failure to follow any term or condition above will be grounds for immediate cancellation of the project and can lead to the shut down of Your website and/or deletion of Your content and files.
Tenure and Validity
Service Agreement Tenure: Client agrees to be bound by the Terms and Conditions set forth in this legal Agreement even after the completion of the project, website, assignment or work and for as long as the service(s) provided by SmartWebby, in full or in part, unmodified or modified, original or as its derivative(s), is in use.
In the event that any provision of this Agreement is deemed unenforceable or invalid, such unenforceability or invalidity shall not affect the validity of the remaining terms and provisions of this Agreement which shall remain valid, enforceable and in effect. Smart Webby may amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of Smart Webby as reflected in the original provision.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF SMARTWEBBY SERVICE(S) IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, THAT IS NOT EXPRESSLY STATED IN THIS SERVICE AGREEMENT. ADDITIONALLY NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SMARTWEBBY SHALL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS SERVICE AGREEMENT. IN NO EVENT SHALL SMART WEBBY BE HELD LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR OTHER LOSSES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION OR THE LIKE), ARISING FROM THE USE OF YOUR WEBSITE(S), CUSTOMER PRODUCTS OR EXTERNAL LINKS AND AFFILIATE WEB SITES. YOU, YOUR VISITORS AND ANY THIRD PARTIES, AGREE TO INDEMNIFY AND HOLD HARMLESS, SMART WEBBY FROM ANY DAMAGES CLAIMED AS A RESULT OF SERVICES, PRODUCTS, INFORMATION AND RESOURCES OBTAINTED FROM SMART WEBBY AND/OR IN ANY EVENT INCLUDING, BUT NOT LIMITED TO, SPAM, ACCOUNT HACKING, IDENTITY THEFT, VIRUS ATTACK, FRAUDULENT OR CRIMINAL ACTIVITIES (INCLUDING REAL, PERCEIVED, PROBABLE OR SUSPECTED FRAUD/CRIME).
SMART WEBBY SHALL NOT BE HELD LIABLE BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SMART WEBBY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH BY SMARTWEBBY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
This Legal Agreement shall be governed by the internal laws of India, without giving effect to principles of conflict of laws. Furthermore, client agrees to resolve any disputes under the Contract in Chennai and consents to Chennai (India) jurisdiction. This Legal Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals or understandings, whether oral or written. All questions concerning this Legal Agreement shall be directed to: Jandus Technologies, D-98, Doshi Gardens, 321 Arcot Road, Vadapalani, Chennai-600026, India. Attention: General Counsel.
SMARTWEBBY reserves the right to change these Terms and Conditions without prior notice or warning. Non-enforcement of any part of the Terms and Conditions does not constitute consent.
Smart Webby, SMARTWEBBY, SmartWebby.com and Jandus Technologies are trademarks or registered trademarks of Jandus Technologies in India and other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners.