UPDATED June 9th 2009
1. ACCEPTANCE OF TERMS
This Terms of Service (TOS) agreement is between you (Client) and ElijahClark.com LLC, a Florida limited liability company, and its legal successors and assigns.
By accepting this Terms of Service (TOS) electronically or in writing, and/or by using ElijahClark.com’ services, including but not limited to, submission of content to ElijahClark.com’ 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.
ElijahClark.com provides its services to Client subject to the following TOS, which may be updated from time to time without notice. Client should periodically review the most current version of the TOS at http://www.elijahclark.com/terms. Failure to comply with the TOS may result in account termination. By using ElijahClark.com’ 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 ElijahClark.com 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 ElijahClark.com services including the purchase of additional services or additional websites or accounts at a later date.
2. TERM OF AGREEMENT; MODIFICATIONS.
You agree that ElijahClark.com may modify this Agreement and the Services from time to time. You agree to be bound by any changes ElijahClark.com may reasonably make to this Agreement when such changes are made. If You have purchased Services or Software from ElijahClark.com , the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the Software or Services. In the event You terminate Your usage, ElijahClark.com will not refund any amounts You have paid. You agree that ElijahClark.com shall not be bound by any representations made by third parties who You may use to purchase Services from ElijahClark.com , and that any statement of a general nature, which may be posted on ElijahClark.com ‘s web site or contained in ElijahClark.com ‘s promotional materials, will not bind ElijahClark.com . ElijahClark.com may, at times, offer certain promotions with different charges and features.
You agree that You will be responsible for notifying ElijahClark.com should You desire to terminate Your use of ElijahClark.com ‘s Services. Notification of Your intent to terminate must be provided to ElijahClark.com no earlier than ten (10) days prior to Your billing date but no later than three (3) days prior to Your billing date.
3. ACCURATE INFORMATION.
You agree to maintain accurate information by providing updates to ElijahClark.com , as needed, while You are using ElijahClark.com ‘s Services. You agree You will notify ElijahClark.com within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by ElijahClark.com to determine the validity of information provided by You will constitute a material breach of this Agreement.
5. ACCOUNT SECURITY.
You agree You are entirely responsible for maintaining the confidentiality of Your customer number/login, password, credit card number, and shopper PIN (collectively, the “Account Access Information”). For security purposes, ElijahClark.com recommends that You change Your password and shopper PIN every six (6) months, for every ElijahClark.com account, subject to ElijahClark.com’s password and PIN guidelines. You agree that You are entirely responsible for any and all activities that occur under Your account. You agree to notify ElijahClark.com immediately of any unauthorized use of Your account or any other breach of security. You agree ElijahClark.com will not be liable for any loss that You may incur as a result of someone else using Your Account Access Information, either with or without Your knowledge. You further agree You could be held liable for losses incurred by ElijahClark.com or another party due to someone else using Your Account Access Information. You should keep Account Access Information in a secure location and take precautions to prevent others from gaining access to Your Account Access Information. You agree that You will be responsible for all activity in Your account, whether initiated by You, or by others on Your behalf, or by any other means. ElijahClark.com specifically disclaims liability for any activity in Your account, whether authorized by You or not.
6. INTELLECTUAL PROPERTY.
ElijahClark.com respects intellectual property laws, including those applicable to copyright and trademark, and the intellectual property of others. ElijahClark.com may terminate accounts for copyright or trademark infringement, or for any other reason ElijahClark.com deems appropriate as it may relate to Client’s use of another’s intellectual property.
ElijahClark.com 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 ElijahClark.com 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 ElijahClark.com will remain the intellectual property of the Client. ElijahClark.com 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. ElijahClark.com will attempt to honor requests to return original content; however, ElijahClark.com has no liability and does not guarantee the return of any content to Client.
You agree that ElijahClark.com or its licensor holds all rights, title and interest in all Software and Services and all intellectual property, including other rights related to intangible property, unless otherwise indicated. You acknowledge that no title or interest in such Intellectual Property Rights is being transferred to You and You agree to make no claim of interest in any such Services or Software.
You understand and agree that all content and materials contained in this Agreement, other policies, the ElijahClark.com web site, and any affiliated web sites, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as any other applicable proprietary rights and laws, and that ElijahClark.com or its licensor expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of ElijahClark.com or its licensor. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.
7. FEES AND PAYMENT.
As consideration for the Software or Services purchased by You and provided to You by ElijahClark.com , You agree to pay ElijahClark.com at the time You order. All fees are due immediately and are non-refundable unless otherwise expressly noted, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term. ElijahClark.com expressly reserves the right to modify pricing through email notification and/or notice on its web site. Payment may be made by You by providing either a valid credit card, an online check, or a personal check. Your Payment Method on file must be kept valid if You have any active products in Your account.
If You signed up for a monthly payment plan, Your monthly billing date will be determined based on the day of the month You purchase the Services unless that date falls after the 28th of the month, in which case Your billing date will be the 28th of each month. If You signed up for an annual (or longer) payment plan, and You elected the automatic renewal option, ElijahClark.com will automatically renew Your Services when they come up for renewal and will take payment from the Payment Method You have on file with ElijahClark.com , at ElijahClark.com ‘s then current rates.
If for any reason ElijahClark.com is unable to charge Your Payment Method for the full amount owed ElijahClark.com for the Services provided, or if ElijahClark.com is charged a penalty for any fee it previously charged to Your Payment Method, You agree that ElijahClark.com may pursue all available remedies in order to obtain payment. If You pay by credit card and if for any reason ElijahClark.com is unable to charge Your credit card with the full amount of the Services provided, or if ElijahClark.com is charged back for any fee it previously charged to the credit card You provided, You agree that ElijahClark.com may pursue all available remedies in order to obtain payment. You agree that among the remedies ElijahClark.com may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to You of any Services registered or renewed on Your behalf. ElijahClark.com reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular Services, including additional costs that it may incur in providing the Services and pass along to You. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, fees incurred by third parties You have elected to use as payment methods, including PayPal and Certegy, Inc., and disputes that require legal services. These charges will be billed to the Payment Method we have on file for You. You may change Your credit card information at any time by logging into Your Account Manager.
You agree that You are solely liable for arranging that Your Services are renewed, and that ElijahClark.com shall not be liable to You or any third party if it is unable to charge Your Payment Method in order to renew Your Services.
While all transactions are processed in US dollars, ElijahClark.com may provide an estimated conversion price to currencies other than US dollars. You acknowledge and agree that the pricing displayed during the checkout process is an estimate. Due to potential slight time delays between actual purchase and the payment settlement, the actual price charged may fluctuate. ElijahClark.com makes no representations or warranties that the estimated price will be the same or substantially similar to the actual price You will pay and You waive any and all claims based upon any discrepancy between the estimate and the actual price and the price paid and any subsequent refund. In addition, you may be charged VAT, GST or other localized taxes, based on the country indicated in Your billing address section. Any amounts to be charged will appear during the checkout process.
8. WEBSITE CONSTRUCTION PROCEDURE
With help and input from the Client, ElijahClark.com 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.
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 ElijahClark.com QC team may review the text before site goes live to correct any possible errors. ElijahClark.com 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 ElijahClark.com 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 ElijahClark.com 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
9. CLIENT APPROVAL
Client is responsible for testing the functionality of the website upon ElijahClark.com’ 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 ElijahClark.com’ 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 may 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 ElijahClark.com’ 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 ElijahClark.com completes all of the work per the original sale and database write ups, ElijahClark.com 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.
10. WEBSITE CHANGE REQUEST
ElijahClark.com 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 ElijahClark.com’ standard hourly rate. ElijahClark.com is not obligated to complete Client requests or changes outside of the scope of work on the original invoice. If ElijahClark.com does not agree to Client requests or changes, Client is still obligated to pay all fees incurred and due.
ElijahClark.com 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. ElijahClark.com 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 ElijahClark.com 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 ElijahClark.com’ standard hourly rate. There is no guarantee that changes made by ElijahClark.com 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 ElijahClark.com’ 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.
ElijahClark.com 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 ElijahClark.com to enter data into the database, the Client will be charged, and agrees to pay, for such data entry at ElijahClark.com’ standard data entry rates.
Client is required to submit store content via ElijahClark.com’ content spreadsheet. ElijahClark.com 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 ElijahClark.com 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 ElijahClark.com’ 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 ElijahClark.com’ standard hourly rate for requested changes.
Client is responsible for testing the functionality of the e-commerce store upon ElijahClark.com’ request for approval and notification that the website has been completed. This includes but is not limited to testing the payment functionality. ElijahClark.com 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.
13. 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 ElijahClark.com 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.
14. EXPEDITED SERVICES
While Elijah Clark 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 Elijah Clark 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 Elijah Clark will make reasonable efforts to more quickly complete design task and programming to the project in an effort to facilitate development than would be the case under the ordinary developmental process.
100% of expedited services fees are due before expedited services can be rendered. Expedited fees are added as an additional price to actual services. Services fees are based on normal payment terms and schedule.
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 customers content, acceptance of any project specification documents prepared by Elijah Clark and Client’s timely cooperation with Elijah Clark in any solicitation for information related to the website’s development.
15. CALL MONITORING AND RECORDING PRIVACY STATEMENT
As part of ElijahClark.com’ commitment to providing the best possible service ElijahClark.com may monitor and record phone calls answered by ElijahClark.com and made by ElijahClark.com. ElijahClark.com may also archive recorded voice mail messages. ElijahClark.com 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 ElijahClark.com to identify how ElijahClark.com can better serve its customers.
16. UNACCEPTABLE PRACTICES
As ElijahClark.com strives to offer the very best service, there are certain guidelines and policies that must govern ElijahClark.com’ efforts and relationships with its clients. Practices that are in violation of these guidelines and policies are strictly forbidden and may result in the immediate termination of ElijahClark.com’ services. Such decisions are at the sole discretion of ElijahClark.com. Unacceptable practices include, but are not limited to:
- Adult or pornographic material including, but not limited to, sexually explicit or suggestive material
- Sexually oriented products or services (e.g. escort services), or other sexually oriented material
Nudity, including airbrushing (exceptions granted on a case-by-case basis if for medical or artistic purposes)
- Lingerie websites
- Offensive or otherwise distasteful material
- Content or language that is harmful to minors in any way
- Bulk emailing tools
- Distribution of internet viruses or other harmful or destructive activities
- Hacking and cracking
- Scams or phishing for personal information
- Solicitation of funds other than for legal charitable organization (exceptions granted on a case-by-case basis at ElijahClark.com’ discretion)
- Gambling, gaming, lotteries, and like activities
- Harmful, threatening, violent, abusive, harassing, tortuous, vulgar, obscene, libelous, invasive of another’s privacy, racial, chauvinistic, ethnically offensive, complaint websites, or otherwise objectionable content or language
- Defamatory, hateful or revenge content or language.
- Aids to pass drug tests or aids to pass lie detector tests.
- Illegal activities such as ponzi schemes, pyramid schemes, fraudulent charging of credit cards, copyright violations, plagiarism,
- piracy, and all unauthorized use of materials or content that infringes on third parties’ intellectual properties
- MLM without a legitimate product or service, with a front product or service, or where the primary intent is to recruit new members rather than to sell products
- Reverse Funnel Systems
- Cash Gifting
- Illegal drugs or drug paraphernalia
- Prescription drugs and related content
- Alcohol sales
- Tobacco sales
- Miracle cures
- Fake documents
- Fireworks, pyrotechnics, firearms, explosives or weapons.
- Intentional or unintentional violations of any applicable local, state, national or international law.
- Reselling of email accounts or hosting accounts to third parties.
- Reselling of any ElijahClark.com services including, but not limited to, design services, updates, and WTD to third parties without a written re-seller agreement.
- Spamming and all other forms of unsolicited messages including, but not limited to, spam, chain letters, and junk email
- Links to other sites that are in violation of ElijahClark.com ‘ policies and guidelines
- Other activities, whether lawful or unlawful, that ElijahClark.com deems to be in poor taste or that reflect adversely on ElijahClark.com or ElijahClark.com’ other clients
- ElijahClark.com reserves the right to refuse to design or host an account at its sole discretion at anytime.
As an ElijahClark.com 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 ElijahClark.com harmless in the event of third parties’ legal issues brought against Client for Client’s business practices. ElijahClark.com retains the right to terminate any accounts that are in violation with the letter or spirit of this TOS. ElijahClark.com 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 ElijahClark.com 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)
17. PAY BY PAYPAL
By using ElijahClark.com ‘s pay by PayPal, Inc. (“PayPal”) option (“Pay by PayPal”), You can purchase ElijahClark.com Software and Services using PayPal. In consideration for the Software and Services purchased by You and provided to You by ElijahClark.com , You agree to allow PayPal to debit the full amount of this transaction from Your PayPal account balance or the Preferred Funding Source You established with PayPal, which is non-refundable. It is Your responsibility to keep Your PayPal Account current, to have available funds in it and to have Your PayPal Account backed by a valid credit card. You agree that PayPal and ElijahClark.com will not be responsible for payments that fail to go through as a result of Your Funding Source no longer existing, or holding insufficient funds. If for any reason PayPal is unable to withdraw the full amount owed for the Services provided, You agree that PayPal and ElijahClark.com may pursue all available remedies in order to obtain payment. You agree that if the transaction is returned unpaid, You will pay a service charge of $25.00 or the maximum amount allowed by law, which may be debited from Your account by PayPal or charged to Your Preferred Funding Source. By clicking the box labeled “I agree” to the terms of the Pay by PayPal terms, You authorize the information provided to be used for the creation of an electronic funds transfer (EFT), and You authorize a debit of THE FULL AMOUNT of Your order from Your PayPal Account or Preferred Funding Source.
18. REPRESENTATIONS AND WARRANTIES.
You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You represent and warrant that You are 18 years of age or older, or that You have an agent authorized by law to represent You who is 18 years of age or older who is entering into this Agreement on Your behalf. You warrant that each action You make is being done so in good faith and that You have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party’s trademark or trade name.
ElijahClark.com expressly reserves the right to deny, cancel or transfer any domain name registration that it deems necessary, in its discretion, to protect the integrity and stability of the registry, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of ElijahClark.com , as well as its affiliates, subsidiaries, officers, directors and employees. ElijahClark.com also reserves the right to freeze a Service during resolution of a dispute.
19. USE OF CLIENT INFORMATION
Client herby gives permission to ElijahClark.com to use samples or links to Client’s custom website designed by ElijahClark.com for marketing and advertising purposes, including but not limited to, use in ElijahClark.com’ online portfolio.
20. THIRD-PARTY SERVICES
21. CONTRACT SERVICE PROVIDERS
ElijahClark.com 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 ElijahClark.com employee directly for services. All payments for services rendered must be made directly to ElijahClark.com. 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.
22. LIMITATION OF LIABILITY .
CLIENT UNDERSTANDS AND AGREES THAT ELIJAHCLARK.COM, 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 ELIJAHCLARK.COM 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 ELIJAHCLARK.COM’ SERVICES, RELIANCE ON ELIJAHCLARK.COM’ SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF ELIJAHCLARK.COM’ 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 ELIJAHCLARK.COM’ 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 ELIJAHCLARK.COM’ 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 ELIJAHCLARK.COM’ 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 ElijahClark.com 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. ElijahClark.com’ full and complete liability, for any reason whatsoever, shall be limited to the full refund of all monies paid to ElijahClark.com.
23. DISCLAIMERS OF WARRANTIES
CLIENT’S USE OF ELIJAHCLARK.COM’ SERVICES IS AT CLIENT’S OWN RISK. ELIJAHCLARK.COM’ SERVICES ARE PROVIDED “AS IS”. ELIJAHCLARK.COM 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. ELIJAHCLARK.COM DISCLAIMS ANY WARRANTIES REGARDING ELIJAHCLARK.COM’ SERVICES INCLUDING THAT THEY WILL MEET CLIENT’S REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. ELIJAHCLARK.COM DISCLAIMS ANY WARRANTIES REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF ELIJAHCLARK.COM’ SERVICES, INCLUDING RESULTING SALES AND WEB TRAFFIC. ELIJAHCLARK.COM DISCLAIMS ANY WARRANTIES REGARDING THE MARKETING OF CLIENT’S PRODUCTS, SERVICES, SALES, OR WEBSITE. ELIJAHCLARK.COM DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH ELIJAHCLARK.COM’ SERVICES, OR LINKS PROVIDED BY ELIJAHCLARK.COM’ SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE PROVIDED BY ELIJAHCLARK.COM OR OBTAINED THROUGH LINKS PROVIDED THROUGH ELIJAHCLARK.COM’ SERVICES.
CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF ELIJAHCLARK.COM’ 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.
You agree to defend, indemnify and hold harmless ElijahClark.com and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys’ fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, software or services with ElijahClark.com whether or not on Your behalf, and whether or not with Your permission) use of the Software or Services You purchased from ElijahClark.com or Your breach of this Agreement or incorporated agreements and policies. In addition, You agree to indemnify and hold ElijahClark.com harmless from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should ElijahClark.com be notified of a pending law suit, or receive notice of the filing of a law suit, ElijahClark.com may seek a written confirmation from You concerning Your obligation to indemnify ElijahClark.com. Your failure to provide such a confirmation may be considered a breach of this Agreement. You agree that ElijahClark.com shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify ElijahClark.com of any such claim promptly in writing and to allow ElijahClark.com to control the proceedings. You agree to cooperate fully with ElijahClark.com during such proceedings.
You agree to cooperate fully with ElijahClark.com during such proceedings. You agree You will not be entitled to a refund of any fees paid to ElijahClark.com if, for any reason, ElijahClark.com takes corrective action with respect to Your improper or illegal use of its Services. You also agree that if ElijahClark.com is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a Site Analytics account of Yours with ElijahClark.com, that ElijahClark.com, in its sole discretion, may take whatever action ElijahClark.com deems necessary regarding further modification, assignment of and/or control of your account to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
25. GOVERNING LAW, VENUE; WAIVER OF TRIAL BY JURY.
This Agreement shall be deemed entered into in the State of Florida. You agree that the laws and judicial decisions of Orange County, Florida, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any action relating to or arising out of this Agreement shall be brought in the courts of New Castle County, Delaware. You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.
You agree that all notices (except for notices concerning breach of this Agreement) from ElijahClark.com to You may be posted on our Web site. Notices concerning breach will be sent either to the email or postal address You have on file with ElijahClark.com. In either case, delivery shall be deemed to have been made five (5) days after the date sent.
Notices from You to ElijahClark.com shall be made either by email, sent to the address provided on the ElijahClark.com web site, or first class mail to ElijahClark.com’s address at:
Attn: Legal Counsel
27. FORCE MAJEURE.
ElijahClark.com will make every effort to keep its web site and Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold ElijahClark.com liable for any of the consequences of such interruptions.
28. TEMPORARY HOSTING.
Client agrees that Elijah Clark will host ALL projects not paid in full on its own temporary discreet/non-indexed hosting server until project is paid in full and moved from server. Client agrees to not redirect, iframe or promote the temporary location on Elijah Clark’s servers unless Client pays for hosting with Elijah Clark.
Client agrees that a minimum of $15 retainer fee per month after 90 days is added for each additional month that Client’s inactive project is held on Elijah Clark’s hosting servers.
29. LOGO DESIGN TECHNICALITIES
The default color model for our logos is the CMYK format unless you specify that you require PMS (Pantone) prior to the start of the project. Any format change after the start of the project will have an additional charge.
The source file will be in Adobe Illustrator (.ai) format. The fonts will be converted into outlines.
Other formats sent will be Freehand, Windows Meta file (.wmf), JPEG, TIFF, EPS, GIF and PDF. Additional formats can be required upon request.
Your logo designs will be uploaded in JPG format into your client panel, which you must view by logging in with the user ID and password that was sent to you, by ElijahClark.com, at the email address you provided when you placed your order. If the email address you provide is not valid, or is filtered by your email system, ElijahClark.com will not be liable for any late service fees and will not refund clients for this reason.
ElijahClark.com shall be entitled, in its sole and absolute discretion, to withhold any products or services it is otherwise obligated to deliver or provide under your Contract until such time as payment in full has been received therefore. ElijahClark.com will notify you of any additional charges under your Contract prior to commencing performance of its obligations there under.
30. LOGO REFUND REQUESTS
In any event, any deposited funds for a project shall not be subject to refund after delivery of the first set of logos. Unless ElijahClark.com cancels or terminates your Contract for a reason other than your breach or non-performance, ElijahClark.com shall not refund any portion of your purchase price. If for any reason a refund is granted the deposit will be kept by ElijahClark.com, for the services that have been rendered.
ElijahClark.com will only refund your money if our management team has deemed that ElijahClark.com has not delivered services in an efficient and effective manner as promised. After you complete a refund request form, and if a refund is approved, our cash refund amount is followed.
31. MARKETING REPRESENTATIONS
ElijahClark.com makes no representations as to the marketing of Client’s products, services or sales. Client’s obligation to pay fees due to ElijahClark.com 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. ElijahClark.com is not responsible for marketing of Client’s website including search engine rankings.
32. 60-DAY SATISFACTION GAURANTEED
Elijah Clark provides a 60-day satisfaction guarantee. Elijah Clark will continue to change and modify the Client’s website to Client’s liking, within 60 days from the date of sale, at no additional cost, provided that said, revisions are part of the original sale and are not enhancements to the original sale. Changes to the website made after 60 days from the date of the initial sale, or after the website is taken live, will first be billed to the Client based upon edit or change. Elijah Clark does not guarantee that the website designed will be exactly what the client has envisioned. Elijah Clark’s best effort will be given for the 60-day satisfaction guarantee. If Elijah Clark does not agree to Client requests or changes, Client agrees and is still obligated to pay all fees incurred and due.
33. 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 30 days from the date of the original sale. The Client hereby requests that ElijahClark.com 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 ElijahClark.com’ 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.
ElijahClark.com reserves the right to change prices at any time including monthly hosting amounts and hourly design fees.
ElijahClark.com accepts payment via wire transfer, check, credit card and EFT debit from Client’s bank account. Upon Client’s authorization of payment to ElijahClark.com 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 ElijahClark.com’ billing department. Client should not email new billing information for security purposes.
ElijahClark.com reserves the right to hold Client, its principals and authorized representative(s) jointly and severally liable for any and all amounts owed.
34. BILLING DISPUTES
ElijahClark.com charges up to a $25.00 fee for returned checks and a $200.00 fee to handle unauthorized credit card disputes. If ElijahClark.com does not receive payment in full when due, ElijahClark.com 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. ElijahClark.com 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 ElijahClark.com for collecting from Client. ElijahClark.com 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 ElijahClark.com’ billing department and must allow 10 business days for a response. To avoid any dispute about Client’s attempt to contact ElijahClark.com, Client must send the request in writing to:
Attn: Billing Department, ElijahClark.com.
Requests may be emailed to [email protected]. If Client chooses to send request by email, a copy of the request must also be sent by mail as confirmation.
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.
35. TERMINATION/CANCELLATION OF SERVICE
ElijahClark.com, 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 ElijahClark.com believes Client has violated the TOS. ElijahClark.com 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 ElijahClark.com’ services under any provision of this TOS may be effected without prior notice and that ElijahClark.com may deactivate or delete Client’s account and all related information files. Client agrees that ElijahClark.com shall not be liable to Client or any third-party for any termination of services. Paid accounts that are terminated will not be refunded. ElijahClark.com 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 ElijahClark.com. 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. ElijahClark.com also reserves the right to discontinue the designing of Client’s website at any time, at ElijahClark.com’ sole discretion, with an appropriate refund to the Client. Under no circumstances is the refunded amount to exceed the amount collected by ElijahClark.com.
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 ElijahClark.com.
-Cancelling Monthly Payment Plan.
Payments made to services that are to be made on a monthly basis are due 1 month after previous payment. If client fails to make monthly payment on its due date – ElijahClark.com may suspend the clients account until payment is made. If website is completed before final payment, no refund will be due to the client and ElijahClark.com remains the owner of the client’s website unless payment is made in full. ElijahClark.com reserves the right to hold Client, its principals and authorized representative(s) jointly and severally liable for any and all amounts owed for the remaining balance on clients account. Monthly payment plans are on a “rent to own” basis and client owns no rights to any website designed by ElijahClark.com until that website is paid in full. If client fails to make payment on monthly website rental – ElijahClark.com owns the rights to terminate (turn off) website until payment is made in full.
36. 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 ElijahClark.com’ 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 ElijahClark.com 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.
37. 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 30 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 ElijahClark.com 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 ElijahClark.com on cancelled accounts if work has been presented to the Client; or ElijahClark.com 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 ElijahClark.com and NO REFUND issued if any changes and/or modifications requested by the Client have been completed by ElijahClark.com. 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 to original specs and/or the website taken live.
D) 100% cancellation fee will be retained and NO REFUND will be issued by ElijahClark.com if Client cancels after 30 days from the initial sale even if no work has been started and no content yet submitted by the Client..
The cancellation fees are charged to compensate ElijahClark.com for up-front expenses and services rendered, including but not limited to, time, 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.
MINIMUM CANCELLATION FEE – Client agrees that a minimum cancellation fee of 50% will be retained by ElijahClark.com on all cancelled accounts even if no work has been started. The cancellation fee is charged to compensate ElijahClark.com 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 ElijahClark.com 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, 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 ElijahClark.com on all cancelled enhancement purchases if cancelled within 30 days of the enhancement sale and if work has not yet begun. NO REFUND will be issued by ElijahClark.com if client cancels after 30 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 ElijahClark.com, its officers, owners, members, agents and employees of any and all contractual obligations and waives all claims of any nature, including legal action, against ElijahClark.com’ its officers, owners, members, agents and employees.
38. DELIVERY AND ACCEPTANCE
Upon completion of its products and/or services in accordance with the terms and conditions set forth in your Contract, ElijahClark.com shall deliver your product and/or service to a temporary location designated by ElijahClark.com for your review. ElijahClark.com will notify you via e-mail of such completion and delivery, and the manner in which you may access the temporary location for purposes of reviewing your product and/or service. You shall have 60 business days from the date of delivery to said temporary location to notify ElijahClark.com in writing of your acceptance or rejection of the product and/or service. Your failure to notify ElijahClark.com in writing of your rejection of the product and/or service within said 60 day period shall constitute your acceptance of the product and/or service. In the event you reject the product and/or service, you shall notify ElijahClark.com in writing of your rejection within said 60 day period, including a detailed explanation for such rejection, following which ElijahClark.com shall use commercially reasonable efforts to provide a substitute or replacement product or service as soon as practicable. Upon your written acceptance of the product or service, or any substitute or replacement product or service, ElijahClark.com shall release and deliver the same to you, to such location and in such format as agreed upon in your Contract. This project will be determined to be closed if we do not have written, phone or in person contact from 60 days from the last revision. The project may be re-opened only upon ElijahClark.com’s discretion.
Any notification in the ElijahClark.com panel to “finalize”, or written or verbal notification to “finalize” any project (logo design, stationery design, brochure design, graphic design, web design, web development, Search Engine Optimization, etc.) the project will be deemed “finalized” and “completed”. ElijahClark.com will send you your final files via email. Finalization or acceptance of any final files of any project will fulfill ElijahClark.com’s Satisfaction Guaranteed policy. Any logos, brochure, web design or additional graphic design samples that were presented to you, and were NOT finalized, will remain the property of ElijahClark.com and may not be used in any way by you, the client, without purchasing or receiving explicit written permission from ElijahClark.com, Inc.
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 ElijahClark.com, 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 ElijahClark.com in Client’s individual capacity and not as a member of a class.
Client agrees to defend, indemnify and hold harmless ElijahClark.com, 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 ElijahClark.com’ 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 ElijahClark.com 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 ElijahClark.com, 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. DOMAIN REGISTRATION AND HOSTING
You, the client, are responsible for registering your domain name and for your hosting service. The client may request that ElijahClark.com launch the site, in which case we will require your FTP (File Transfer Protocol) information for hosting to include login name and password.
ElijahClark.com is not responsible for NOT meeting client imposed deadlines that have not been pre-approved by both parties in writing. ElijahClark.com is not responsible for any delays that occur in meeting deadlines that result in client/customer providing incomplete, partial information/content or for clients providing late/delayed feedback or response.
43. COMPLETING YOUR COMPANY BRIEF
We require our clients to complete our internal creative brief (either online, or emailed or faxed) in full in order to meet your design requirements. If we do not receive a complete creative brief, we will notify you and will wait to proceed until the creative brief is completed in full. If you, the client, request us to proceed with an incomplete creative brief, and you are not satisfied with your first draft, you will be required to purchase a second draft.
44. CONTENT FOR YOUR WEBSITE
Unless otherwise negotiated with ElijahClark.com , the client is 100% responsible for providing the content (wording and information) for your website in a fully prepared format (able to be cut and pasted in to your website). ElijahClark.com is not responsible for editing, spell check or grammar errors. ElijahClark.com is not responsible for delays to your website as a result of the client either NOT providing or providing incomplete content. Content will also include require PHOTOS that you want included on your website. Client is responsible for providing photos or photo direction to ElijahClark.com.
45. FINALIZING YOUR DESIGN
Once we have designed a concept you are satisfied with, you must approve and finalize your concept. After finalization, our web design team will convert your design from an image of your website into HTML. In this phase, it is important to double check your website and make sure you do not require any additional design changes. Although text can be edited after this point, all design changes to headers, navigation bars, or site menus, will incur additional charges.
46. CONVERTING WEBSITE TO HTML & INTERGRATING TEXT.
Once the concept for the home page has been finalized, our web designer will convert the design from an image into an HTML web page, and create the subsequent pages using the content that you have provided. It is at this point your text will be integrated into the website. Turnaround time is 2-3 business days. If you have any additional text changes in the content area of the website, now is time to place them. Once all text is integrated, we will then send you the first functional draft of the website (excluding any development work such as a contact us form or database). You can either approve your site in its entirety, or submit text revisions via your Client Panel. Since HTML or (Hypertext Markup Language) is the standard format for all documents on the World Wide Web, it is imperative that this is done before your site is live. Turnaround time is 2-3 business days. Remember, once this process begins, you will be unable to make design changes without incurring additional charges.
If your project includes any development work, such as a dynamic contact form, or includes database functionality, this will be done after you finalize the functioning HTML draft. Remember we need your FTP information for any site development. After a complete review and test of your site, please finalize through your Client Panel. It is critical that you review, approve, and finalize any development work before your site launches.
48. LAUNCHING YOUR SITE
Once you have finalized and approved all designs and development work. Your site will be launched and will go “live” on to the internet and your site’s native files will be sent to you via email.
49. PROJECT INACTIVITY PENALTIES AND FEES
Projects which are left inactive (no revision requests, email notification with revision requests, or phone contact regarding the design of any project), without notifying ElijahClark.com , Inc prior to, for more than 2 months are subject to an Inactivity Fee of $50 in order to re-open your project once you return to complete your project. This fee is used to cover search, project/design re-acquaintance, and designer workload restructuring associated with the project inactivity.
Client agrees that a minimum of $15 retainer fee per month after 90 days is added for each additional month that Client’s inactive project is held on ElijahClark’s hosting servers.
50. PROPRIETARY RIGHTS
You represent and warrant that you are the owner of or have the exclusive right to use any and all proprietary information you provide to ElijahClark.com or refer to ElijahClark.com in furtherance of or in connection with your Contract, including without limitation any and all trade names, trademarks, copyrights, graphics, designs, logos, written content/copy for any use, to include copy for web design and brochures/flyers and similar materials or information.
ElijahClark.com MAKES NO REPRESENTATION OR WARRANTY THAT IT HAS THE EXCLUSIVE RIGHT, TITLE AND INTEREST IN AND TO THE PRODUCTS AND/OR SERVICES PROVIDED TO YOU OR THAT SUCH PRODUCTS AND/OR SERVICES DO NOT AND WILL NOT INFRINGE ON THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. ElijahClark.com WILL NOT TAKE ANY ACTION IN FURTHERANCE OF PROTECTING THE PRODUCTS AND/OR SERVICES TO BE DELIVERED UNDER YOUR CONTRACT, AND WILL DELIVER THE SAME “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY AS TO YOUR ABILITY TO USE SUCH PRODUCTS AND/OR SERVICES OR TO OBTAIN TRADEMARK, COPYRIGHT OR SIMILAR PROTECTION OF SUCH PRODUCTS AND/OR SERVICES, IN THE UNITED STATES OR ANY OTHER JURISDICTION.
Upon your acceptance of the product or service and ElijahClark.com ‘s receipt of payment in full therefore, ElijahClark.com will assign, convey, transfer and deliver all of its right, title and interest in and to the products and/or services developed by ElijahClark.com for you under the terms of your Contract. Any products or services, including samples, rejected or otherwise not delivered by ElijahClark.com and accepted by you shall at all times remain the property of ElijahClark.com and you shall have no right in or to such products or services.
ElijahClark.com retains and reserves the perpetual, royalty-free right to use any and all products and/or services developed by ElijahClark.com for display and self-promotional purposes, regardless of your acceptance and ElijahClark.com ‘s delivery of the same to you. ElijahClark.com specializes in designing custom logos. We can not grant requests duplicate any designs that have been previously designed by ElijahClark.com or any other company unless you can provide notarized written notice from an executive member of the company. ElijahClark.com will design a logo with a similar look and feel as the design you requested. Refunds will not be provided to companies who have ordered logos and did not receive an identical design to an already trademarked or designed logo. ElijahClark.com will work with your company to develop an original design you are satisfied with.
ElijahClark.com 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.
52. 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 ElijahClark.com so that ElijahClark.com may perform services for the client, the same shall constitute an electronic signature.
53. AFFILIATED COMPANIES OR NAME CHANGE
ElijahClark.com reserves the right to subcontract services or assign the ongoing servicing of your account or this entire Agreement to another party at its sole discretion. This agreement shall not be affected by any change in the name of ElijahClark.com LLC, it’s DBAs or any other affiliated companies, or any condition, merger or acquisition of ElijahClark.com LLC and shall be automatically assigned to any successor entity of ElijahClark.com LLC and shall continue in effect thereafter in accordance with its terms.
54. 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 ElijahClark.com. 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 ElijahClark.com ‘ 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.
ElijahClark.com reserves the right, in its sole discretion and for any reason whatsoever, to reject, cancel or terminate, permanently or temporarily, your order for any product or service offered by ElijahClark.com , your Contract and/or your access to the ElijahClark.com Site web site, at any time and without prior notice. You agree that ElijahClark.com shall not be liable to you or any third party for any rejection, cancellation or termination of your order, your Contract or your access to the ElijahClark.com web site. In the event that ElijahClark.com rejects, cancels or terminates your Contract or your order for a reason other than your breach or non-performance under your Contract, ElijahClark.com will return any amounts prepaid by you relating to the rejected, canceled or terminated Contract or order.
56. PRINTING LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ELIJAHCLARK.COM OR ANY SUBSIDIARY, AFFILIATE, OFFICER, DIRECTOR, SHAREHOLDER, AGENT, EMPLOYEE OR REPRESENTATIVE THEREOF BE LIABLE TO YOU OR ANY THIRD PARTY MAKING A CLAIM THROUGH YOU FOR ANY PRINTING DAMAGES WHATSOEVER, (to include for example, yet not excluding any other printing issues: color variation, product delivery, pricing, condition of product upon delivery, necessity or quality of printed proofs, typing or content errors) as they may relate to print services that have been fulfilled by vendors or companies outside of and for ElijahClark.com , inc. This includes any vendors that may be listed on ElijahClark.com.
Color variation from your computer screen (RGB) to printed colors (PMS/Pantone or CMYK) colors can vary significantly. ElijahClark.com highly recommends that you request a printed proof prior to finalizing or approving your print materials with your print vendor. ElijahClark.com does not provide printing services and therefore will not be responsible for providing refunds for designs or printed materials as a result of color variation, printing costs or any other printed expense after you have approved your final design.
57. COPYRIGHT AND TRADEMARK NOTICES
All intellectual property of ElijahClark.com, including all web site screens and portions thereof, graphics, original text elements, site design, logos, pictures and icons, as well as the selection, format and organization thereof, constitute proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by ElijahClark.com in writing or otherwise required by applicable law, any rent, lease, sale, modification, duplication, distribution, alteration, retransmission or publication of any intellectual property or proprietary information of ElijahClark.com is strictly prohibited.
Copyright © 2003-2012 by ElijahClark.com, Inc. All rights not expressly granted herein are reserved.
Any questions concerning these Terms and Conditions should be directed to: