These Terms of Service (hereafter referred to as the “Agreement”) are an agreement between Klovera LLC, (“Klovera,” “Company”, “Developer”, “we,” “us,” or “our”) and you (“User”, “client”, “customer”, “you” or “your”). This Agreement sets forth the general terms and conditions of Web Project packages made available by Klovera (collectively, the “Services”). By obtaining, using, and/or paying for the Services, you agree to be bound by this Agreement. If you do not agree to abide by the terms of this Agreement, you are not authorized to utilize or access the Services.
Purpose of Agreement
Client desires to retain Klovera as an independent contractor to perform various consulting, web design, web development, and/or marketing Services. Klovera is ready, willing and able to undertake the Services and agrees to do so under the terms and conditions set forth in this Agreement. Accordingly, the parties agree as follows:
Scope of Project Services
(a) Client wishes to retain Klovera to provide ongoing Project services. Klovera shall perform and complete the Services and the tasks that Klovera deems related and necessary. Klovera holds the sole discretion over what specific tasks fall within the scope of the Services. Such service may include but are not limited to:
- Project discovery
- Specification writing
- Mockups / wireframes
- Project management
- UI/UX design
- Website development
- Custom coding
- Code review
- Ecommerce development
- Copywriting / editing
- Vendor collaboration
- Software implementation
- API setup
- Content creation
- Competitive analysis
- Data visualization
- Ad management
(a) Compensation for Project Services: In consideration for the services provided by Company to Client as set forth in section 2(a)(i) above, Client agrees to pay Company a monthly project fee up to the Client’s chosen level of service. This budget will not be exceeded without Client’s written permission. The current prices for each level of service are listed below. This is an auto-recurring monthly plan.
- Tier-0: No budget – $150 per hour.
Availability for project work in the same month NOT guaranteed.
- Tier-1: $2500 project budget per month
Max 20 billable hours per month, overage rate: 125
- Tier-2: $6000+ project budget per month
Max billable hours per month = Budget/120 (e.g. 6000/120 = 50), overage rate: 120
(b) Client’s chosen budget represents pre-approval of work per month on projects up to the budget for the tier. The actual amount may be more (with additional written approval for that month) or less, detailed out each month and invoiced at the end of the month the work is performed. Klovera will notify the Client if we anticipate going over budget in any given month and will stop work in that month if approval is not given. Work will commence the 1st working day of the following month containing an active budget.
(c) At Klovera’s discretion, Client may be required to pay Klovera the monthly fee associated with the Client’s chosen level of service, prior to the commencement of work as a non-refundable deposit.
(d) Klovera’s obligation to render services hereunder is conditioned upon Client’s payment of said fee on a timely basis. Therefore, said fees will be invoiced at the end of each month and due on receipt.
(e) If extra expenses exceeding $1,000 are expected to complete the Client’s requested project or new phase of an existing project, Company reserves the right to require an additional non-refundable deposit.
(f) If Client initially signs up after the 1st of any given month the amount due for the current month will be charged on the signup date and subsequent payments will be charged on the last day of every following month. Klovera has sole discretion on whether to pro-rate the initial month of services.
(g) Any payments received by Klovera are non-refundable. Cancellation does not entitle Client to a refund, pro-rated or otherwise. Upon Client cancellation, Klovera will continue to provide services for the period that the final payment covers, and will halt future charges.
(h) Any billable hours accrued in excess of the Client’s service level maximum will be billed on the last day of the month incurred at the overage rate indicated in 4(a) in 15-minute increments and due on receipt. Klovera will notify the Client when the maximum is being approached. Client can choose to cease work until the Project plan’s renewal the following month to avoid overage charges.
(i) If said fees set forth in the paragraphs above are not in receipt on the due date, Company reserves the right to cease performance of services and withhold delivery of work product until payment has been made. If, on the 15th day following a payment due date, a payment remains unpaid, Company may assess a penalty fee in the amount of 10% of the amount due. Company reserves the right to withhold services and deliverables until all assessed penalties are paid in full. Payments shall be made via check or bank deposit.
(j) Tools to be provided by Client: Company will not begin work on projects until Client has provided all necessary files, tools, photographs, documentation and any other items, access, or materials necessary for the project and/ or requested by Company. Throughout the duration of the project, Client agrees to provide all tools, information and documentation that may be required by Company to effectively perform said responsibilities in connection with the performance of services.
(k) Expenses: Client agrees to reimburse Company for expenses incurred by Company solely on Client’s behalf, such as travel expenses, software license fees, code licenses, plugins, shipping, advertising costs, stock imagery, 3rd party vendor services, and the like; provided, however, that any single expense or related group of expenses greater than $100 must first be approved by Client in writing or via the pre-approved project budget set forth in paragraph (a) above, otherwise, Client will have no obligation to pay such expense. These charges will be in addition to the agreed upon budget in paragraph (a). Company agrees to provide Client with a monthly expense invoice, and Client agrees to make payment to Company within 30 days from date of delivery of said expense invoice to Client. Company reserves the right to cease performance of services and withhold work product if approved expenses are not reimbursed within 30 days. Company may include, at their discretion, some code license and plugin fees at no charge.
Changes in Project Scope
Changes in scope require the mutual agreement of both parties.
Term of Agreement
This Agreement commences on the date it is executed and shall continue until it is cancelled by one party under the terms of this Agreement.
(a) To cancel, send an email request to email@example.com. Cancellation requests must be received prior to the 1st of the month (Central Time) of the month you wish to no longer engage the Services.
(b) Any payments received by Klovera are non-refundable. Cancellation does not entitle Client to a refund, pro-rated or otherwise, of fees already paid, even for the month in which the cancellation occurred. Upon Client cancellation, Klovera will continue to provide services for the period that the last payment received covers, and will halt future charges.
(c) Client or Company may cancel this Agreement for any reason at any time by providing written notice. Client will remain obligated to pay the fees set forth in section 4 for any and all completed work. Client will also remain obligated to pay all expenses incurred by Company on Client’s behalf, in accordance with paragraph 4(k), through the last day of performance. Company will remain obligated to deliver the services as detailed in this Agreement through the last day of performance.
Company cannot guarantee the outcome of the Services and Company’s comments about the outcome are expressions of opinion only. Company makes no guarantees other than that the services described in Paragraph 3(a)(i) shall be provided to Client in accordance with the terms of this agreement. Client acknowledges that Company cannot guarantee any results for website project services as such outcomes are based on subjective factors that cannot be controlled by Company.
Mutual Confidentiality: Any and all information and data shared between parties in the fulfillment of this Agreement is of a confidential nature, including, but not limited to any design, creative, marketing, sales, operating, performance, know how, business and process information (hereinafter referred to as “Confidential Information”), shall be treated by the receiving party in the strictest confidence and not disclosed to third parties or used for any purpose other than those specified hereunder without the other party’s express written consent, other than to comply with law. Confidential Information shall not include any information which (a) becomes available to the public through no breach of confidentiality by party, (b) was in party’s possession prior to receipt from the disclosure, (c) is received by party independently from a third party free to disclose such information, or (d) is independently developed by party without use of the other party’s Confidential Information. Upon request, both parties hereto will promptly return or destroy all documents containing the other party’s Confidential Information and delete all electronic records of or containing the same.
(a) Independent Contractor Relationship: This Agreement shall not render Company an employee, partner, agent of, or joint venturer with the Client for any purpose. Company is and will remain an independent contractor in its relationship to the Client. Company is or remains open to conducting similar tasks or activities for entities other than the Client and holds itself out to the public to be a separate business entity. Company shall retain sole and absolute discretion in the manner and means of carrying out the activities and responsibilities under this Agreement. Company shall be responsible to the ownership and management of the Client, but Company will not be required to follow or establish a regular or daily work schedule. Company will not rely solely on the equipment or offices of Client for completion of tasks and duties set forth pursuant to this Agreement. Any advice given by Client to Company, regarding services performed for the Client, shall be considered a suggestion only, not an instruction. Client retains the right to inspect, stop, or alter the work of Company to assure its conformity with this Agreement and Client needs. Company and Client agree to conform to any and all government regulations necessary to establish and demonstrate the independent contractor relationship between Client and Company.
(b) Taxes & Benefits: Company will be responsible for filing its own tax returns and to pay taxes in accordance with all provisions of applicable national and local laws. Client shall not be responsible for withholding taxes with respect to Company’s compensation. Company shall have no claim against Client for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits or employee benefits of any kind.
(c) Insurance: Company shall, at the Company’s sole cost, maintain the following insurance: (i) General Liability (ii) Professional Errors & Omissions. Certificates of insurance will be provided to Client upon request. Company will also acquire and maintain Workers Compensation as required by law.
Transfer of Intellectual Property Rights
Provided Client has complied with the terms of this agreement, and upon final payment to Company for services, Company shall automatically thereby grant, transfer, assign and convey to Client, and its successors and assigns, all right, title, interest, ownership and all subsidiary rights, including all rights accruing to Company under the any applicable copyright legislation in and to all works of authorship and all copyrights, patents, trade secrets and any other intellectual property rights, business concepts, plans and ideas, reports, manuals, visual aids, documentation, inventions, processes, proposed products, services, techniques, marketing ideas, and commercial strategies, that have been or will be created by Company, for Client (“the Work”) for use throughout the world in perpetuity in any manner or media whether now known or hereafter invented. Company hereby further waives any moral rights it may have with regard to Client’s uses of the Work. Company agrees, at Client’s reasonable expense, to cooperate as may be necessary to assist Client in enforcing Client’s rights in the Work. Notwithstanding the foregoing, Company retains ownership in and to all engineering, including code and database frameworks and/or any and all process files, notes, documents, or other materials created by Company in connection with the services performed under this contract, and Company grants Client a world wide, nonexclusive, irrevocable license for the use of such engineering, code and database frameworks and/or any and all process files, notes, documents, or other materials. Client further grants Company a world wide, nonexclusive, irrevocable license to display the written or visual content developed by Company for Client only in association with Company’s portfolio and for other business development and marketing purposes.
Intellectual Property Infringement Claims
(a) Klovera represents BUT DOES NOT WARRANT, that to the best of its knowledge the project delivered to Customer under this Agreement will not infringe any valid and existing intellectual property right of any third party.
(b) The Customer agrees to indemnify and hold harmless Klovera against any and all claims, costs, and expenses, including attorney’s fees, due to materials included in the Website at the request of the Customer for which no copyright permission or previous release was requested or uses which exceed the uses allowed pursuant to permission or release.
(a) During the course of the engagement, we may recommend a purchase and installation of computer or technological hardware, software, communications, or services by your company. Warranties, to the extent they exist, are provided only by the manufacturer/vendor of those computer products.
(b) Company’s Warranties: Company represents, warrants and covenants that, Company has full authority to enter into this Agreement and all of the services, whether performed by Company or any of its subcontractors, will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable and qualified personnel. Company does NOT represent or warrant, expressly or impliedly, that their services will not be interrupted or error free; nor do they make any warranty as to the results of any information service or merchandise contained in or provided through their services, unless otherwise expressly stated in the Agreement.
(c) Client’s Warranties: Client represents, warrants and covenants that Client has full authority to enter into this Agreement and has or will obtain, during all times relevant hereunder, all of the necessary consents, rights, licenses, clearances, releases or other permissions to lawfully consummate the transactions and lawfully discharge, in all material respects, each and every of Client’s obligations or duties set forth hereunder, whether performance is due now or hereafter during the Term.
(d) EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED THROUGHOUT THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED.
Limitation of Liability
(a) IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO CLIENT FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND
(b) COMPANY SHALL NOT BE LIABLE FOR ANY CLAIM OR DEMAND MADE AGAINST CLIENT BY ANY THIRD PARTY; AND
(c) IN NO EVENT SHALL COMPANY’S LIABILITY TO CLIENT EXCEED THE FEES PAID UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY.
(d) THE FOREGOING LIMITATIONS IN THIS SECTION 13 SHALL NOT APPLY TO A BREACH OF CONFIDENTIALITY BY A PARTY HEREUNDER OR THE OBLIGATIONS UNDER PARAGRAPHS 8, 10 AND 22.
Additional Policies and Agreements
Use of the Services is also governed by the following policies. By using the Services, you also agree to the terms of the following policies.
Additional terms may also apply to certain Services and are incorporated by reference herein as applicable. For example, if we provide maintenance or support for your website, then the Website Management & Support Agreement will also apply to you and would be incorporated herein.
Entire Agreement; Modification; Waiver
Complete Agreement: This Agreement together with all exhibits, appendices or other attachments, which are incorporated herein by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. In the event of a conflict between the provisions of the main body of the Agreement and any attached exhibits, appendices or other materials, the Agreement shall take precedence.
Effect of Headings
The subject headings of the paragraphs and subparagraphs of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.
This Agreement was prepared by Company and/or Company’s legal counsel. It is expressly understood and agreed that this Agreement shall not be construed against Company merely because it was prepared by its counsel; rather, each provision of this Agreement shall be construed in a manner which is fair to both parties.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Assignment: The rights and obligations under this Agreement are freely assignable by either party. Customer shall retain the obligation to pay if the assignee fails to pay as required by this Agreement.
All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed as follows:
2800 E Enterprise Ave
Appleton, WI 54913
Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address in the manner set forth above.
Governing Law; Venue; Mediation
This Agreement shall be construed in accordance with, and governed by, the laws of the Wisconsin as applied to contracts that are executed and performed entirely in Wisconsin. The exclusive venue for any court proceeding based on or arising out of this Agreement shall be Wood County. The parties agree to attempt to resolve any dispute, claim or controversy arising out of or relating to this Agreement by mediation, which shall be conducted under the then current mediation procedures of The CPR Institute for Conflict Prevention & Resolution or any other procedure upon which the parties may agree. The parties further agree that their respective good faith participation in mediation is a condition precedent to pursuing any other available legal or equitable remedy, including litigation, arbitration or other dispute resolution procedures.
Recovery of Litigation Expenses
If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
Changes to Agreement
You can review the most current version of this agreement at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of this agreement by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
Client will be notified of any material changes to this agreement.
If any term, provision, covenant, or condition of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.