Design Additional Terms of Service Agreement

Last Updated: April 23, 2019.

All terms not otherwise defined herein shall have the definitions set forth in the Terms of Service and our Acceptable Use Policy (“AUP”).

Any terminology that are not specifically defined herein, particularly when capitalized, shall have the same meaning as that provided in Our Terms of Service. These Additional Terms apply to You if You purchase any of our website design and development services, including Our custom themes (“Our Development Services”).

Definitions

“Content” means all data, graphics, links, photos, music, sound, messages, videos and other data used in the Custom Work Product.

“Custom Work Product” means all HTML files, Java files, graphics files, animation files, data files, technology, scripts and programs, both in object code and subject code form, all documentation and any other deliverable prepared for You by Us in accordance with the Statement of Work (defined below).

“Customer Work Product” shall not include any Generic Modules, Third Party Content (as defined below) or any of Our Technology.

"Generic Modules" means discrete computer program subroutines that are not specific to the functions of the Custom Work Product but are useful generally in Our business and that are designated as "Generic Modules" in writing signed by both parties.

"Intellectual Property" means intellectual property or proprietary rights, including but not limited to copyright rights, trademarks, moral rights, patent rights (including patent applications and disclosures), rights of priority, mask work rights, and trade secret rights, recognized in any country or jurisdiction in the world.

"Our Technology" means any and all software, applications, tools, technology, Intellectual Property, know how, algorithms, procedures, techniques and solutions that We have already developed or that We license from a third party and that are incorporated into or used in the design, development, testing, hosting and distribution of the Custom Work Product, together with any improvements thereon.

Development Services

We agree to provide Our Development Services substantially in accordance with the information and specifications provided by You in responses to the Design Preferences Form and submitted to and accepted by Us (the "Statement of Work"). You understand that Our obligations are limited to those expressly set forth in the Statement of Work. Any changes or modifications outside of the scope of the specifications in the Statement of Work may require a change order and are subject to additional fees.

Additionally, by providing Our Development Services, We have not and do not undertake any obligation to comply with any laws, regulations, or rules that may or may not apply to you. You understand and agree that, regardless of the scope of Our Development Services, Your Sites and Your End Users are Your responsibility, and You are solely responsible for compliance with any and all applicable laws or regulations related to Your Sites and Your End Users including but not limited to privacy and data laws, accessibility laws and trademark/copyright laws. This includes, without limitation, Your Sites, the content thereon, and design thereof. You agree to comply with all applicable domestic and international laws and regulations regarding Your use of the Services. You agree to post a privacy policy on Your Sites that complies with the laws applicable to Your business. You also agree to obtain consent from Your customers for the use and access of their personal information by Us and other third parties. We are not liable for, and won’t provide You with any legal advice regarding, Your Sites, the content thereon, design thereof, or Your End Users.

Content

Unless otherwise specified in the Statement of Work, You are required to provide all Content for use in the Custom Work Product. If the Statement of Work or any other terms of Our Development Services purchased by You provide that We shall use Content owned by a third party (“Third Party Design Content”), You will be responsible for all fees and expenses associated with such Content and will only be entitled to a license to such Third Party Design Content as set forth in any agreement with such third party. In any such circumstance, You remain responsible for any violation of any Third Party Design Content, and any potential violations of Intellectual Property rights. We are not liable for, and won’t provide You with any legal advice regarding any such Intellectual Property rights.

Testing

We will provide You with a link to the work designed, created, and/or produced by Us in connection with this Agreement and as further set forth in the Statement of Work (the "Deliverables"). You shall have 14 days after We provide the link to inspect and test the Deliverables to determine if it substantially conforms to the Statement of Work. You may request revisions to the Deliverables, but unless otherwise stated in the Statement of Work, such revisions are limited to two rounds.

If the Deliverables fail to substantially conform to the specifications in the Statement of Work, You shall give Us written notice of the failure describing the defect in the Deliverable with sufficient specificity so as to allow Us to easily identify and rectify the failure. In order to be effective and binding, such notice shall be sent no later than 30 days from the date of conclusion of Our Development Services, and shall include specific page, file or URL references and detailed information about the nature of the defect.

Note that there may be some slight inconsistencies between any design proofs that We deliver to You and the Deliverables as a result of the actual coding of the Deliverables. In addition, We may after consultation with You utilize a content builder or other solution that would enable You to more easily edit and maintain Your Site, which may limit our ability to completely implement certain design features.

Time to Cure

After receipt of notice of a material non-conformity which complies with this Agreement, We will use commercially reasonable efforts to remedy such failure or defect within 30 days of the delivery of such notice, and shall redeliver such Deliverables to You. You shall have 14 days after such redelivery to inspect and test the Deliverables to determine if it conforms to the Statement of Work. If the Deliverables continue to fail to materially conform to the specifications in the Statement of Work, then: (i) either Party may terminate this Agreement; or (ii) if both Parties agree, We will be given an opportunity to cure any defects in accordance with this section.

Acceptance

The Deliverables shall be deemed to be accepted by You upon the earlier of (a) written notice by You to Us of such acceptance or (b) expiration of the time period for Your inspection without written notice in accordance with this Agreement to Us of material non-conformance. We shall not unreasonably withhold or delay acceptance.

Mirroring Design

The Deliverables are provided for use only on the domain designated in the Statement of Work. If You want to mirror the design on one or more different domains, You must submit an order identifying the new or additional domain. The initial mirroring may be completed without additional charge; however any future updates or modifications to the design will require additional fees on a per domain basis.

Grant of License

Upon full and final payment of all fees for Our Development Services, We will grant to You a limited, nonexclusive, license to use, reproduce, display, and perform, works based upon (1) the Deliverables, (2) any of Our Technology, the Generic Modules, and all Intellectual Property rights contained in the Custom Work Product on the designated domain. Unless otherwise provided by Us, this license shall only extend to the extent necessary for You to maintain a website while hosted with Us.

Our Intellectual Property

The Custom Work Product, Our Services, Our Technology, Our Content, the Generic Modules, and all Intellectual Property rights with respect to any of the foregoing are and will remain Our sole and exclusive property.

Your Content

You acknowledge and agree that (a) unless expressly stated elsewhere, We have no proprietary, financial, or other interest in Your Content; (b) We do not, by virtue of offering or hosting Your Content, edit, distribute, market, sublicense, publish, or otherwise provide Your Content to end users; and (c) You are solely responsible for the information, data, graphics, text, quality, performance, and all other aspects of Your Content. You warrant that You own or have the right to use and offer Your Content in the manner in which Your Content is offered and will be offered by Your during the term of this Agreement.

You further acknowledge and agree that You are solely responsible for ensuring the integrity of Your Content. Although We may, from time to time, provide data backup services, You are advised that We are not an insurer and are in no way responsible for any damages resulting from the loss of Your Content. You are solely responsible for backing up/archiving Your Content. You hereby grant to Us a non-exclusive, worldwide, perpetual, royalty free license to reproduce, modify, display, perform, adapt, transmit, distribute, improve, and otherwise use customer content in connection with Our Development Services.

Our Right to Re-Use Deliverables

You acknowledge and agree that We use some or all of the Custom Work Product, including the Deliverables (but excluding any of Your Content) in the future in commercial development projects for other customers. Nothing in this Agreement shall be construed to limit Our right to do so or to use any information in non-tangible form retained by Us as ideas, information and understandings retained in the human memories of its employees, contractors and agents, provided that We may only use information of general applicability and not Your Confidential Information.

Cooperation

You agree to provide reasonable assistance and cooperation to Us to acquire, transfer, maintain, perfect, and/or enforce the Intellectual Property rights in Your Sites (excluding any of Your Content) and Custom Work Product, including, but not limited to, execution of a formal assignment or such other documents as may be reasonably requested by Us. You hereby appoint Our officers as Your attorneys in fact to execute such documents on Your behalf for this purpose.

Security Interest

To the extent that You have any interest or right with respect to the Deliverables, such interest or right shall be subject to (and You hereby grant to Us) a security interest to the extent of the difference between the payments that are due and the payments that are actually made by You for such Deliverables. Upon Our request, You shall execute any instrument required to perfect such security interest.

Fees for Design and Development Services

a. Custom Design, Premium Theme Pro, Theme Styling and A La Carte Services

The purchase of our Design and Development Services is a purchase of the time and creativity of our Design and Development Services team. As such, this is a limited resource and We require that purchases must be consummated within a reasonable amount of time. If You purchase Our Design and Development Services, you must provide the required input, as required in the Welcome email sent by Volusion, within thirty (30) days of your order date. Failure to timely provide the required input to initiate the design or to timely respond to additional inquiries which cause inactivity on the Services for longer than thirty (30) days will result in the services being deemed complete and delivered in full satisfaction. No further services will then be provided without the purchase of additional services and You will not be entitled to a refund.

b. Premium Theme Plus

If You purchase Our Premium Theme Plus package and the requested input, as required in the Welcome email sent by Volusion, is not received within thirty (30) days of your order date, Our team will install one (1) Premium Theme into your store’s theme gallery where it will be available to you indefinitely and the service will be deemed complete and delivered in full satisfaction. No further services will then be provided without the purchase of additional services and You will not be entitled to a refund.

c. All Design and Development Services

While the sale of Our Design and Development Services are final and without a right to refund, We understand that Our Design and Development Services require a longer involvement and circumstances may change. Once Our team has begun work on the project, full refunds are no longer available. A partial, pro-rated refund may be obtained after Your initial input is required for the specified service. Such refund will be prorated to compensate Us for any expenditure in time, money or other resources already spent on the partial provision of the services. No refunds will be issued for Premium Themes once they are installed on the customer’s store.

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6504 Bridge Point Pkwy Ste 125
Austin
TX
78730
United States