This agreement is effective since Oct 10, 2013, and serves across all boards and engagement, between EPLIFY and the CLIENT on any product or services offering by EPLIFY. EPLIFY reserves the right to modify this agreement at any time, effective upon posting of the modified Policy to this webpage. Which will supersedes all new and current projects. This agreement is universally governing all business doings and engagements between EPLIFY and the CLIENT.
This agreement covers all design, development, consultancy, training, hosting, maintenance and any other services, product or project, which from time to time, at the full discretion of EPLIFY, to maintain, amend, include to the overall offerings from EPLIFY.
The design, development, implementations, service and maintenance, software, methodology and framework will be determined, developed and adopted at the full discretion of EPLIFY, unless otherwise, requested by CLIENT, prior to the confirmation of quotation, captured in writing, agreed by EPLIFY.
ASSIGNMENT OF PROJECT
EPLIFY reserves the right to assign subcontractors in any capacity or arrangements, be part or full, to design, development, implement, consulting, training, hosting, maintenance for part or full of the project.
“Major Browser” means Internet Explorer by Microsoft Inc., Firefox by Mozilla, or Chrome by Google Inc.
“Latest Version” shall mean the latest version of major browser used by the CLIENT or by EPLIFY or the subcontractors at the point of delivery.
Unless specified in writing prior to the confirmation of quotation by CLIENT on the “Latest Version” which mutually agreed, EPLIFY will exercise base on it’s full discretion for which CLIENT will not dispute, no corrective or replacement will be allowed.
The works at the point of delivery shall be tested and working on the Latest Version of Major Browser. EPLIFY do not guarantee the site will work on future version releases of Major Browser.
COMMENCEMENT OF WORK
The official relationship starts from the date the quotation is signed by CLIENT and, or from the date instruction is given by CLIENT to commence any work, whichever is earlier, be it through any verbal, written or digital mediums.
Unless otherwise provided in the Agreement, and except as otherwise provided for herein, CLIENT shall pay additional charges for changes requested by CLIENT which are outside the scope of the Services on a time and materials basis, at EPLIFY’s proposed fees. Such charges shall be in addition to all other amounts payable under the Agreement, despite any maximum budget, contract price or final price identified therein. EPLIFY may extend or modify any delivery schedule or deadlines as may be required by such Changes.
By Changes, it refers to additional or alteration of design, modules, functionalities or features, be it structural or aesthetic after the final PSD was approved or provided by CLIENT, by email or any communication medium that CLIENT has approved in principle or agreed to, and work has begun on EPLIFY side.
Charges of changes will be computed base on the total number of man day multiply by cost per day for the entire duration of works, including time taken from review and re-approval from CLIENT’s side.
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
RELATIONSHIP OF THE PARTIES
EPLIFY is an independent contractor, not an employee of CLIENT or any company affiliated with CLIENT. EPLIFY shall provide the Services under the general direction of CLIENT, but EPLIFY shall determine, in EPLIFY’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. EPLIFY and the work product or Deliverables prepared by EPLIFY shall not be deemed a work for hire as that term is defined under Copyright Law. All rights if any, granted to CLIENT are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
EPLIFY shall be permitted to engage and/or use third party agents or other service providers as independent contractors in connection with the Services (“Agents”).
During the term of this Agreement, and for a period of two (2) years after expiration or termination of this Agreement, CLIENT agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any EPLIFY’s employee or Agent of EPLIFY, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, CLIENT agrees that EPLIFY shall be entitled to an agency commission to be the greater of, either (a) 100 percent of said person’s starting salary with CLIENT, or (b) 100 percent of fees paid to said person if engaged by CLIENT as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for CLIENT. EPLIFY, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. CLIENT is free to engage others to perform services of the same or similar nature to those provided by EPLIFY, and EPLIFY shall be entitled to offer and provide application development services to others solicit other CLIENTs and otherwise advertise the services offered by EPLIFY.
INDEMNIFICATION AND LIABILITY
CLIENT agrees to indemnify, save and hold harmless EPLIFY from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of CLIENT’s responsibilities or obligations, representations or warranties to it’s own third party. Under such circumstances;
(a) CLIENT has sole control of the defense and all related settlement negotiations with it’s own third party; and
(b) EPLIFY provides CLIENT with commercially reasonable assistance, information and authority necessary to perform CLIENT’s obligations under this section. CLIENT will reimburse the reasonable out-of-pocket expenses incurred by EPLIFY in providing such assistance.
Subject to the terms, conditions, express representations and warranties provided in this Agreement, EPLIFY agrees to indemnify, save and hold harmless CLIENT from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with EPLIFY’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of CLIENT provided that
(a) CLIENT promptly notifies EPLIFY in writing of the claim;
(b) EPLIFY shall have sole control of the defense and all related settlement negotiations; and
(c) CLIENT shall provide EPLIFY with the assistance, information and authority necessary to perform EPLIFY’s obligations under this section. Notwithstanding the foregoing, EPLIFY shall have no obligation to defend or otherwise indemnify CLIENT for any claim or adverse finding of fact arising out of or due to CLIENT Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by EPLIFY.
LIMITATION OF LIABILITY
The services and the work product of EPLIFY are sold “as is.” In all circumstances, the maximum liability of EPLIFY, its directors, officers, employees, agents and affiliates (“EPLIFY Parties”), to CLIENT for damages for any and all causes whatsoever, and CLIENT’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the paid up capital of EPLIFY. In no event shall EPLIFY be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by EPLIFY, even if EPLIFY has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
TERMINATION AND CANCELLATION
Should client calls for termination or cancellation of project after confirmation of quotation, and, or commencement of any work, CLIENT agrees to pay EPLIFY in full and the No Refund policy applies. Final term of the Agreement may be terminated at any time, by either party effective immediately upon written notice.
Copyright to all source codes and databases shall remain the property of EPLIFY. Once final payment under this agreement and any additional charges incurred have been paid, CLIENT is granted the right to access the use of the source codes and databases without further authorisation from EPLIFY. Rights to photos, graphics, and source code, work-up files and computer programs that are not created by EPLIFY remain the property of their respective owners. CLIENT is the copyright owner of the content (text, pictures, software etc. provided by the CLIENT) unless CLIENT uses someone else’s copyrights with permission. Rights to EPLIFY are specifically not transferred and remain the property of EPLIFY. EPLIFY and its subcontractors retain the right to display graphics and other design elements as examples of their work in their respective portfolios. The Projects may contain a copyright/legal statement, an email link to the project webmaster, or a text/logo linked to EPLIFY’s Website. CLIENT is notified hereby that there are severe penalties provided by the Law for Copyright infringement. CLIENT will be fully responsible for copyright infringement of any and all of the content provided by CLIENT including but not limited to text, pictures, photos, software, databases etc.
LIMITATION OF DESIGN AND DEVELOPMENT PLAN
There are certain limits to each plan. Those include number of pages, number of concepts to choose, number of colour schemes, etc. CLIENT agrees to abide by the notion of limitations. CLIENT agrees to pay additional cost if he chooses to exceed such limitations or additional requests.
CLIENT has the option to order any kind of design, development, programming on a full custom basis. In this case customer pays per hour. Some custom work carries minimal hours. CLIENT understands that design is not exact science and that results may vary. CLIENT trusts EPLIFY based on his own research. CLIENT will be responsible for the payment of the hourly fees regardless how satisfied or unsatisfied with the result he is. Estimates may not be accurate. CLIENT pays per actual hours not per estimate. CLIENT may set limits and the work will stop when the limit is reached.
“ADD – ON”
EPLIFY will offer a number of standard “add on” features at flat rate. CLIENT agrees to pay such flat rate for the feature “as is”. If CLIENT requires additional features he agrees to pay for the extras on per hour basis.
EPLIFY LOGO PLACEMENT
CLIENT agrees the text and logo “Design by EPLIFY” to be placed at the bottom of each and every web page designed by Provider. The text and logo will be linked to EPLIFY’s website. EPLIFY reserves the right to enforce the logo display by technical means.
DATA RECOVERY AND BACKUP
EPLIFY is not responsible for lost content or lost User Data. User Data typically includes data entered by CLIENT or site visitors into a database and stored on a Hosting Service. At CLIENT’s request and at CLIENT’s expense, EPLIFY can design a backup system capable of creating backup files which allow CLIENT Data to be stored at a remote location of CLIENT’s choosing, such as a burnable CD or DVD which can then be stored in a safety deposit box. Testing, storage and the reliability of backup data, restoration capabilities, and inclusion of all User Data is the sole responsibility of CLIENT. Backups of user data are intended for disaster recovery, not the restoration of individual files. EPLIFY will backup the files that we create in a manner and frequency of our choosing. Modifications to the files may mean a backup will not exist for the exact time and date a CLIENT may request, therefore we make no guarantee as to the existence of backup files.
SUPPORT AND MAINTENANCE SERVICES
“Support and Maintenance Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the designing, development, workflow, features, modules, process enhancements to the Project or other services outside the original scope of the work.
QUALITY OF SERVICES
Provider will apply the best efforts to provide the best possible quality. As with any design work CLIENT’s satisfaction can not be guaranteed. EPLIFY will not take returns and refund fees based on quality, qualitative, emotion and experiential issues.
All content displayed on EPLIFY’s website are current at the time of display. They are subject to variation without notice. We will always attempt to be as accurate as possible with our product and services descriptions. However, we are unable to warrant the descriptions or other content of the website is accurate, complete, reliable, current or error free.
EPLIFY has the right to change the price of the services to reflect a change in the cost of the service, or other reasons.
PLACING AND ACCEPTING ORDERS
Orders will not be dispatched until payment in full has been received and EPLIFY is satisfied with the integrity of the order. EPLIFY reserve the right not to provide goods or services, or cancel orders (or part thereof) at our sole discretion at any time and we will not be held liable for loss or damage arising from the exercising of these rights. If you need to cancel an order, please contact us immediately. Once we have accepted payment for an order, cancellation of the order is within our sole discretion. Orders that cannot be cancelled will be subject to our discretion relating to returns and exchanges.
CLIENT agrees to pay for the services the fees as specified in the quotation; or in the invoice otherwise agreed and revised by EPLIFY and CLIENT mutually, before commencement of any work.
CLIENT agrees to pay upfront for all fee services upon confirmation of quotation, before commencement of any work, and, or receiving of invoice for all hourly bills or invoice for progress payments or in full. Payments must be made promptly based on the terms of the Project. EPLIFY reserves the right to remove any Project from viewing on the Internet until full payment is made. In case collection proves necessary, including termination or cancellation of project initiated by CLIENT after quotation is signed, the CLIENT agrees to pay all fees (including all attorney’s fees and court costs) incurred by that process. All payments will be made in the currency as stated in the invoice issued by EPLIFY.
PAYMENTS BY CREDIT CARDS
EPLIFY reserve the rights to cancel your order if verification fails. This is as much for your security as it is for ours. By following the instructions below you can ensure the verification process is successful:
Provide the billing address details for the card used.
Provide a copy of the front and back of the credit card.
Complete our credit card authorisation form.
EPLIFY will pass on any information relating to suspected fraudulent activity to appropriate authorities.
All payments are to be made within 30 days from the date of the invoice or otherwise stated in the invoice, whichever is earlier.
CLIENT agrees to pay additional late fee of 5% per month on the outstanding amount, of which will be imposed automatically for payment received 5 working days later from due date of payment.
All Payments are to be made to EPLIFY in full or otherwise, specially arranged with the CLIENT upon confirmation of quotation, before commencement of any works.
Once a payment or deposit is made, it is Non-Refundable.
It may however, at the discretion of EPLIFY, on a case by case basis, that EPLIFY may consider alternative arrangement for the client. Nonetheless, EPLIFY reserves the full right to withdraw such arrangement or offer at any point in time. Of which, the validity of the Non-Refundable policy and the remaining provisions of this Agreement, shall remain valid and enforceable according to its terms.
If a project is cancelled
or postponed, all monies paid are retained by EPLIFY. And if applicable, a fee for all works completed beyond what was already paid for shall be paid by the CLIENT.
Web Development Payments for custom web development projects are made to us in full or otherwise, specially arranged with the CLIENT before commencement of any works. If a project is cancelled or postponed, all monies paid are retained by EPLIFY and if applicable, a fee for all works completed beyond what was already paid for shall be paid by the CLIENT.
Search Engine Optimization, Internet Marketing and Social Media Optimization Payments for Search Engine Optimization, Internet Marketing and Social Media Optimization services are nonrefundable, and EPLIFY do not issue pro rata refunds for fees paid in advance. Once a payment or deposit is made, it is non-refundable.
All Setup, Service and Maintenance fees are nonrefundable as it is applied to costs immediately incurred by EPLIFY in initiating services. If a project is cancelled or postponed, all monies paid are retained by EPLIFY and if applicable, a fee for all works completed beyond what was already paid for shall be paid by the CLIENT.
Chargebacks. If we receive a chargeback or payment dispute (i.e. PayPal Dispute) from a credit card company or bank, your service and/or project will be suspended without notice. A $50 chargeback fee (issued to recover fees passed on to us by the credit company), plus any outstanding balances accrued as a result of the chargeback(s) must be paid in full before service is restored, files delivered, or any further work is done. Instead of issuing a chargeback, please contact us to address any billing issues. Requesting a chargeback or opening a PayPal dispute for a valid charge from us is fraud, and is never an appropriate or legal means of obtaining a refund. Please read and make sure you fully understand our refund policy prior to making a payment.
Hosting Payments for past months of web hosting are non-refundable. Hosting accounts are set up at the time of order. If CLIENT did not make use of the account, payment for services is still due.
EPLIFY reserves the right to disable and/or terminate a user’s account if a user is found in violation of the terms.
ELECTRONIC COMMERCE LAWS
The CLIENT agrees that the CLIENT is solely responsible for complying with any laws, taxes, and tariffs applicable in any way to the Project or any other services contemplated herein, and will hold harmless, protect, and defend EPLIFY and its subcontractors from any claim, suit, penalty, tax, fine, penalty, or tariff arising from the CLIENT’s exercise of Internet electronic commerce and/or any failure to comply with any such laws, taxes, and tariffs.
THIRD PARTY MATERIALS
All Third Party Materials are the exclusive property of their respective owners. EPLIFY shall inform CLIENT of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Deliverables. Under such circumstances EPLIFY shall inform CLIENT of any need to license, at CLIENT’s expense, and unless otherwise provided for by CLIENT, CLIENT shall obtain the license(s) necessary to permit CLIENT’s use of the Third Party Materials consistent with the usage rights granted herein expect as already described by EPLIFY and included in the fees. In the event CLIENT fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, CLIENT hereby indemnifies, saves and holds harmless EPLIFY from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of CLIENT’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Deliverables.
COPYRIGHTS AND TRADEMARKS
The CLIENT unconditionally guarantees that all materials and the copyright therein, including but not limited to text, graphics, photos, designs, trademarks, or other artwork furnished to EPLIFY for inclusion in the Project are owned by the CLIENT, or that the CLIENT has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify and defend EPLIFY and its subcontractors from any liability (including attorney’s fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the CLIENT.
Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, EPLIFY assigns to CLIENT all ownership rights, including any copyrights, in and to any designs comprising the works created by EPLIFY for use by CLIENT as a Trademark. EPLIFY shall cooperate with CLIENT and shall execute any additional documents reasonably requested by CLIENT to evidence such assignment. CLIENT shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. CLIENT hereby indemnifies, saves and holds harmless EPLIFY from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of CLIENT’s use and/or failure to obtain rights to use or use of the Trademark.
RIGHTS TO DELIVERABLES OTHER THAN DELIVERABLES
CLIENT Content, including all pre-existing Trademarks, shall remain the sole property of CLIENT or its respective suppliers, and CLIENT or its suppliers shall be the sole owner of all rights in connection therewith. CLIENT hereby grants to EPLIFY a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the CLIENT Content solely in connection with EPLIFY’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
This Agreement constitutes the entire understanding and contract between EPLIFY and the CLIENT and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings and agreements between the parties with respect to the subject matter hereof, all of which representations, communications, understandings and agreements are hereby canceled to the extent they are not specifically merged herein. The parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein. Any changes or modifications thereto must be in writing and signed by both parties.
Notwithstanding anything to the contrary contained in this agreement, neither EPLIFY nor any of its employees or agents, warrant that the functions contained in the Project will be uninterrupted or error-free. The entire risk as to the quality and performance of the Project is with the CLIENT. In no event will EPLIFY be liable to the CLIENT or any third party for any damages, including, but not limited to, service interruptions caused by Acts of God, the Hosting Service or any other circumstances beyond our reasonable control, any lost profits, lost savings or other incidental, consequential, punitive, or special damages arising out of the operation of or inability to operate this Project, failure of any service provider, of any telecommunications carrier, of the internet backbone, of any internet servers, or your site visitor’s computer or internet software, even if EPLIFY has been advised of the possibility of such damages.
If any provision of this Agreement shall be unlawful, void, or for any reason, unenforceable, it shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this Agreement, which shall remain valid and enforceable according to its terms.