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Ecomly development & hosting unlimited agreement
The following terms and conditions of use (the “Terms”) constitute an Agreement between you (the “Customer,” “User,” “You,” or “Your”) and Ecomly Ecommerce, LLC and its affiliates and subsidiaries (collectively, the “Company,” “our,” “us,” or “we”). These Terms govern your use of and access to the Service detailed below and are a legally binding agreement between You and the Company.
Introduction
By accessing the website ecomly.co (collectively the “Site” or “Website”), submitting information to us or using the Service constitutes your Agreement to these Terms and you consent to the collection, use and disclosure of information as described in these Terms and our Privacy Policy which is incorporated into and forms a part of these Terms.
The Company provides a platform for development and hosting of websites. We reserve the right, acting in our sole discretion and at any time, to revise these Terms, including the Privacy Policy. It is your responsibility to ensure that You are aware of the current Terms when you access or use the Site. We will notify you of any substantial changes via electronic mail. Your continued use of the Services after any change to this Agreement constitutes your agreement to be bound by any such changes. The terms of this Agreement shall govern the use of any new features that augment or enhance the current Services, including the release of new Company Services.
1. General Terms
To use our Service, you must be eighteen (18) years or older and have the requisite power and authority to enter into these Terms. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws). You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by the Company.
You understand that the technical processing and transmission of the Service, including content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You must not transmit any worms or viruses or any code of a destructive nature. You agree that You will not interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service.
The Company may monitor, terminate or suspend Your Account at any time. The Company may immediately, and without prior notice, terminate Your ability to access the Service or portions thereof for any reason including, without limitation: (i) if You violate or otherwise fail to strictly comply with any term or provision of these Terms, (ii) if we have determined that Your use has created or potentially will create risk or legal exposure for the Company, or (iii) in response to requests by law enforcement or other government agencies.
You acknowledge and agree that any termination or suspension of Your Account may be made by us in our sole discretion and that we shall not be liable to You or any third-party for any termination or suspension of Your Account or access to the Service.
The Company may use third-party features and/or hosting partners to provide technology required to run the Service. You agree to indemnify, defend, and hold harmless the Company and its suppliers from any and all loss, cost, liability, and expense arising from or related to Your data, Your use of the Service, or Your violation of these terms.
2. Privacy Law
You acknowledge and agree that any personal information, emails, and/or customer data provided by You to the Company or data collected by You or collected through Your use of our Service, has been collected lawfully according to applicable privacy laws, including the General Data Protection Regulation (GDPR). We will not be held liable for any failures by You to follow privacy laws. We agree to utilize data we collect only for the purposes set forth in our Privacy Policy and we will fulfill our obligations to keep such data secure.
3. Ecomly Custom Site Payment Terms
- You agree to pay Company an initial development fee (the “Setup Fee”), due immediately upon signing up, and a monthly hosting & service fee (the “Monthly Fee”) as dictated on the Website (depending on chosen products during or after signup), which is initiated immediately upon beginning development.
- The company reserves the right to increase any and all fees currently listed on Company website. We will give you thirty (30) days notice of such increases.
- Invoices shall be submitted by the Company for payment by Customer. Payment is due upon receipt and is past due ten (10) business days from receipt of invoice. A finance charge of 2% per month on the unpaid amount of an invoice, or the maximum amount allowed by law, will be charged on past due accounts. Payments by Customer will thereafter be applied first to accrued interest and then to the principal unpaid balance. Customer shall also be liable for all attorney and collection fees arising from Company’s efforts to collect any unpaid balance of Customer’s account(s).
- The initial fee is 100% refundable if the customer has requested a refund prior to commencing work on the website and so long as the request for a refund is made within (6) months from the time that the purchase was made. Once work has commenced and the site has been provisioned, the initial fee will become non-refundable unless other terms are agreed to. Any other fees incurred as a result of a work order or job requested by the customer are non-refundable unless other terms are agreed to unless other terms are specified.
If you are not satisfied with your purchase of Ecomly Add-ons, please contact us within 30 days of your order and we will try to resolve any issues. If we are not able to resolve your issues, we will give you a 100% refund. - Customers who are current in paying their hosting fees will receive ongoing updates to their website, in the form of WordPress updates, Plugin Updates, Theme Updates, or other, as such updates are released by the Company and its partners. The Company reserves the right to determine the timing of any Scheduled Updates. Any work performed by Company on the Customer website beyond the Scheduled Updates must be agreed to in writing, and will be billed and invoiced at an agreed rate, and it will be due upon the receipt of the invoice. Any special requests which must be completed within two (2) business days of a Customer request shall be considered rush requests, and may be subject to increased rates.
4. Term & Termination
This Agreement shall be effective as of the date you place an order for Services, and shall remain in force until it is terminated.
This Agreement may be terminated by either party upon thirty (30) day written notice to the other. This Agreement shall also terminate if a party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within twenty (20) days of receipt of the notice of breach. This Agreement may be terminated by Company as stated above and also (i) immediately if Customer fails to pay any fees hereunder; (ii) if Customer fails to cooperate with Company or hinders Company’s ability to perform the Services hereunder; (iii) if Customer includes in their website any adult material or material that is deemed illegal, immoral or improper in any jurisdiction; or (iv) if Customer includes in their website any material that infringes the intellectual property of any third party.
5. Service & Hosting Terms
The Company’s product is a customized website configured through WordPress and Woocommerce and hosted through the Company. Upon payment of the Setup Fee we shall set up and customize the website for the Customer as per specifications. After initial customization is complete and the site has been moved to the Customer’s primary domain, the Customer shall update and manage the content of their website through their WordPress administrative dashboard. The customized website shall only be hosted on our servers and cannot be transferred to a third party hosting provider. Our company reserves the right to restrict and control the use of, and application of any 3rd party plugins or products in use on the network. The Company does not guarantee or advertise flexible 3rd party product use within site environments. All 3rd party products in use on the network are carefully reviewed for compatibility, value and usefulness. Requests for features, plugins, updates or fixes may be submitted for inquiry through company support.
For Ecomly Custom stores, the Company agrees to work with the Customer for three (3) rounds of revisions without incurring any additional fees. If the scope of the project changes, or work has to be ‘re-done’ (vendor change, or in more general terms, a substantial modification to the original agreed upon scope of the project), the Company reserves the right to charge additional fees for labor incurred as a result.
Please refer to Appendix A for a full list of work that falls outside the scope of the Company’s site setup process. Please refer to Appendix B for a schedule of labor rates.
We do not monitor the content of our Customer’s websites. However, you agree not to include in your customized website any content that infringes the intellectual property of anyone, including but not limited to copyrighted text, copyrighted images, and trademarks. Hosting includes 5Gb (megabytes) of storage space for text, documents and pictures.
Uptime checks are permitted under the following conditions:
- Maximum of 1 uptime “check” request per 5 minutes, per site
- ALL uptime checks MUST check https://mydomain.org/am-i-up
- NO OTHER URLs are allowed to be checked
- All uptime checks that do not match these requirements will be throttled and/or blocked completely. Throttled checks will appear, incorrectly, as downtime in your uptime check
- Uptime checks and bots MUST NOT set a Cache-Control header to bypass cache
Company will ensure 99% website uptime for a given month. Scheduled maintenance time of less than five hours each month will not be counted towards the downtime guarantee.
The Company does not provide any email hosting solution but will ensure that existing email setups are configured and functional on the completed customized website. The Company shall maintain the right to display a link, including a linked image, to our websites, including but not limited to: https://agentfire.com
6. Disclaimer & Warranties
The Company makes no representation or warranty that the Service or other information provided, regardless of its source, are accurate, complete, reliable, current or error-free. The Company disclaims all liability for any inaccuracy, error or incompleteness in the Service. The Service and any third-party software and services are provided “as is,” with no warranties whatsoever. The Company and such third parties expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, title, and non-infringement of proprietary rights and any warranties regarding the security, reliability, timeliness, and performance of the software or service and such third party software or services.
You acknowledge that You will keep a backup copy of any content You upload and/or transmit through the Service and the Company will not be held liable should content be lost.
You shall not upload or transmit through the Site any material which violates or infringes the rights of others, or which is threatening, abusive, defamatory, libelous, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, contains injurious formulas, recipes, or instructions, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law.
Any testimonials or examples shown through Company’s Website are only examples of what may be possible. There can be no assurance as to any particular outcome based on the use of the Service. You acknowledge that the Company has not and does not make any representations as to the future result that may be derived as a consequence of use of the Service.
7. Intellectual Property Rights
Our customized online store shall only be hosted within our Company’s servers. The customer has rights to transfer a customized online store to another hosting provider, but all Ecomly licensed property will be removed. The Company shall retain all intellectual property rights in the website, including all copyrights, under all circumstances including the termination of this Agreement by either party. You will not copy, imitate, modify, alter, amend or use any of the intellectual property without our prior written consent. Nothing in this Agreement shall transfer ownership of or rights to any intellectual property of the Company to the User, nor grant any right or license other than those stated in this Agreement.
All data, text and images uploaded by the Customer onto the website shall remain the property of the Customer. You agree that any and all content You upload and/or transmit through the Service is lawfully owned by You. You agree that You own the copyright or have the proper permissions for all content and images You upload and/or transmit through the Service. Our Company will not be held liable for any copyright claims against your content. If you believe that material available on our Site infringes on your copyright(s), please notify us by submitting a Digital Millennium Copyright Act (DMCA) notice. After we receive a valid and complete notice, we will investigate, remove the material, and make a good faith attempt to contact the user who uploaded the material, via email.
8. Elementor Framework Terms
The Company reserves the right to utilize a Theme Framework during the development of The Website. Use of a theme framework provides numerous advantages for end users, the Customer, as well as The Company. Use of a theme framework carries with it some customization limitations and The Company reserves the right to deny a request if it is not economically viable for The Customer, or The Company.
ADVANTAGES
Periodic Updates
The Elementor Theme is updated regularly with product updates and new features to take advantage of, both by end users (The Customer) and by The Company. All theme updates are tested for fidelity prior to activation on the network.
Development Speed
Use of a framework allows The Company to customize the visual layout of a site with visual development tools users can interact with and access. Development time is shorter as a result, with a greater level of access by The Customer once work has completed.
Development Efficiency
The cost and time necessary to build entirely custom code line by line is inefficient and costly. The Company works with development tools that save time, and maximize code quality and stability. This provides cost savings that are passed on to The Client in the form of lower overall development costs when compared to traditional development.
Development Focus
Use of a framework allows our development staff to focus on building and delivering real estate specific features unique to the industry that focus on end user acquisition and retention. The result is delivery of an enterprise grade website that is considerably more versatile than competing platforms while continuing to offer proprietary products purpose built for real estate.
LIMITATIONS
Customization Pricing
The Company agrees to work with the Customer to identify any customization requests before work commences on a site, as well as work to explore alternatives in cases where a specific request is not available. In the event that a ‘custom’ workaround is available, The Company, agrees to discuss implementation, development cost, and time frame for completion with the Customer to obtain approval before commencing work.
Customization Limitations
Due to the combination of resources required, development cost, or delivery timeframe desired, some customization requests are not possible. We cannot guarantee that there is a solution available for any given customization request
9. Disclaimer of Warranties
The Company warrants that its Services shall be performed by personnel possessing competency consistent with applicable industry standards. No other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Furthermore, no guarantee is made as to the efficacy or value of any website, customized website or hosting service. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY THE COMPANY CONCERNING THE SERVICES AND RELATED WORK PRODUCT. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR OTHERWISE. COMPANY DOES NOT GUARANTEE CUSTOMER’S WEBSITE PLACEMENT ON SEARCH ENGINES.
COMPANY ONLY PROVIDES A SERVICE TO ITS CUSTOMERS. ALL SOFTWARE, INFORMATION, CONTENT, MATERIAL, FILE, DATABASE, ARCHIVE, TECHNIQUE, PROGRAMS OR ANY OTHER TOOL OR DATA DEVELOPED AND USED FOR THE CREATION AND/OR USAGE OF THE CUSTOMIZED WEBSITE SERVICES AND HOSTING SERVICE OR SERVICES BELONGS SOLELY TO THE COMPANY, AND IT SHALL NOT BE TRANSFERRED TO CUSTOMERS. CUSTOMERS CAN ONLY UTILIZE THE SERVICES OF THE COMPANY IN COMPANY’S SERVERS AND WITHIN THE COMPANY’S INFRASTRUCTURE.
10. Limitation of Liability
YOU AGREE THAT UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR ANY OTHER DAMAGES ARISING OUT OF YOUR USE OF THE SITE OR SERVICES. ADDITIONALLY, AGENTFIRE.COM CORP, LLC IS NOT LIABLE FOR DAMAGES IN CONNECTION WITH (I) ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, DENIAL OF SERVICE, ATTACK, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE; (II) LOSS OF REVENUE, ANTICIPATED PROFITS, BUSINESS, SAVINGS, GOODWILL OR DATA; AND (III) THIRD PARTY THEFT OF, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF YOUR INFORMATION OR PROPERTY, REGARDLESS OF OUR NEGLIGENCE, GROSS NEGLIGENCE, FAILURE OF AN ESSENTIAL PURPOSE AND WHETHER SUCH LIABILITY ARISES IN NEGLIGENCE, CONTRACT, TORT, OR ANY OTHER THEORY OF LEGAL LIABILITY. THE FOREGOING APPLIES EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN THE DAMAGES. IN THOSE STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR THE DAMAGES, OUR LIABILITY IS LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL COMPANY CUMULATIVE LIABILITY TO YOU EXCEED THE TOTAL FEES YOU PAID TO US IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION.
11. Third Party resource
The Site and/or Service may contain links to third-party websites and resources. You acknowledge and agree that we are not responsible or liable for the availability, accuracy, content or policies of third party websites or resources. Links to such websites or resources do not imply any endorsement by or affiliation with the Company. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
12. Release of Claims
In no event will the Company be liable to any party for any type of direct, indirect, special, incidental, or consequential damages for any use of or reliance on our Service. You hereby release the Company from any and all claims including those related to personal or business interruptions, misapplication or information, or any other loss, condition, or issue.
13. Governing Law & Dispute Resolution
These Terms (and any further rules, policies or guidelines incorporated by reference therein) shall be governed by and construed in accordance with the laws of the State of New Mexico, without giving effect to any principles of conflicts of law. Should any provision of this Agreement be or become invalid, illegal, or unenforceable under applicable law, the other provisions of this Agreement shall not be affected and shall remain in full force and effect. If a dispute is not resolved first by good-faith negotiation between the parties to this Agreement, any controversy or dispute to this Agreement will be submitted to the American Arbitration Association. The arbitration shall occur within ninety (90) days from the date of the initial arbitration demand and shall take place in New Mexico, New Mexico or via telephone. The Parties shall cooperate in exchanging and expediting discovery as part of the arbitration process and shall cooperate with each other to ensure that the arbitration process is completed within the ninety (90) day period. The written decision of the arbitrators (which will provide for the payment of costs, including attorneys’ fees) will be absolutely binding and conclusive and not subject to judicial review, and may be entered and enforced in any court of proper jurisdiction, either as a judgment of law or decree in equity, as circumstances may indicate.
14. Assignment
These Terms bind and inure to the benefit of the parties’ successors and assigns. These Terms are not assignable, delegable or otherwise transferable by You. Any transfer, assignment or delegation by you is invalid.
15. Entire Agreement; Waiver; Headings
This Agreement constitutes the entire agreement between you and the Company pertaining to the Site and Service and supersedes all prior and contemporaneous agreements, representations, and understandings between us. No waiver of any of the provisions of this Agreement by the Company shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Company. The subject headings of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.
If you have any questions or concerns regarding these Terms, please email: [email protected]
Updated: March 2021
Appendix A
The following is a list of work related tasks that is here to defined as ‘outside the scope’ of an Ecomly Store setup.
Site Imports or Migrations – If the client requires that an existing site or content from an existing site be migrated into the Ecomly website being created – this should be discussed / a strategy should be formulated beforehand. Some site migrations are more complicated than others and for those reasons every situation shall be treated as unique.
301 Redirects – 301 Redirects are considered Google ‘best practice’ when moving from one website host to another, and can be implemented to preserve most of the previous sites SEO while making the transition.
Extra Pages / Widgets / Sidebars / Custom Page Formatting – If the Client requires additional ‘specialty’ pages to be created and customized within the site – the Company will generally try to accommodate, however reserves the right to quote additional fees for high volume requests.
Appendix B
Data Entry Rate – $15/hr
Defined as manual data entry.
General Labor Rate – $25/hr
Defined as general labor that does not require knowledge of programming languages.
Landing Page Customization / Interior Page Design – $35/hr
This is our general ‘design’ rate and includes landing page customization.
Coding / Custom Work Labor Rate – $70/hr
Defined as labor that requires knowledge of programming languages.
