Note: These are the OLD Terms, please find the new Terms here: http://spottedkoi.comhttp://spottedkoi.com/terms-and-service-agreement/
These are the terms of service that every customer of Spotted Koi agrees to when they accept our estimates of work. We are posting these here so that there are no surprises and anyone can refer to them at any time. We reserve the right to change these terms for any future projects and ask that our customers read the terms on their estimates before acceptance every time. We will keep a change list at the bottom of this page, so that you can see if any changes have been made recently.
Spotted Koi Terms of Service
Terms of Services Rendered
Spotted Koi agrees to perform web development services (referred to hereinafter as “Services”) agreed upon with Client, which may include but are not limited to:
* Web Page Production
* Development in XHTML, CSS, PHP, and/or MySQL according to the requirements of the Services listed herein
* Development against third party applications, Open Source Applications, or Public or Private APIs provided by other companies
Estimation Process
The information, items, and costs provided on the estimate are created as Spotted Koi’s best guess of efforts required to deliver the project based on the information provided by the Client to Spotted Koi. The scope of work for a project must be provided to Spotted Koi by via any written methods that the Client deems necessary.
It is the responsibility of the Client to provide any and all information about the project in the written Scope of Work (SOW).
It is the responsibility of the Client to fully review the estimate to make sure that all features and requests from the SOW are covered by the estimate. Anything not specifically covered in the estimate created by Spotted Koi will be considered out of scope and will be added to this estimate and submitted for re-approval before work begins on the project. If down payment has been submitted for this estimate, any additional items will be estimated, scheduled, and invoices separately from the work defined on this estimate.
If additional information, features, data, designs, requests, functionality or anything else that could change the scope, cost, or delivery date of the project is provided by the Client after the estimate has been sent by Spotted Koi to the Client, Spotted Koi reserves the right to update and resubmit the estimate to the Client for re-approval. Any and all changes to SOW or the estimate will effect the final cost and schedule previously submitted to the Client.
After 30 days of estimate receipt the estimate is null and void and a new estimate will be provided for the same project upon request of the customer.
Payment
As of July 15, 2011, Client and Spotted Koi agree that all Services described in this contract shall be completed for a minimum of $85.00 per hour, payable to “Spotted Koi LLC.”.
Client agrees to pay Spotted Koi a down payment of 50% of the total current estimate submitted to Client for any projects $500 or more, immediately proceeding acceptance of the estimate by the Client. For projects of $500 or less, client agrees to pay Spotted Koi 100% of the project cost up front. Spotted Koi will not begin work against any estimate unless the down payment has been received. Projects with down payments received within 7 business days of acceptance of estimate will keep the schedule defined in the estimate. Should the down payment be received after 7 days of acceptance of estimate, Spotted Koi reserves the right to reschedule the project so as not to disrupt other project schedules.
All estimates provided through Freshbooks must be accepted using the functionality provided by Freshbooks.
The final invoice for the project will be submitted to the Client upon acceptance of work. The remaining balance on this final invoice is due within 15 days of Client’s receipt of invoice, on the 16th day a 5% late fee of the remaining balance will be added to the invoice and the invoice resent. For each 5 business days after receipt of invoice that payment is not received by Spotted Koi, an additional late fee of 5% of the remaining balance will be added to the invoice.
After 3 late fees, Spotted Koi has the option to submitted the invoice to our collection attorney.
Performance
Spotted Koi will submit Services based on turnaround times stated in the estimate submitted to Client. Client will provide Spotted Koi with all data needed by agreed upon schedule in order for Spotted Koi to complete Services, including, but not limited to: text, code, graphics, designs, page heirarchies, wireframes and photos.
Should there be failure of the Client or any other 3rd party to provide information or files to Spotted Koi by the agreed upon time, Spotted Koi reserves the right to reschedule the project so as not to disrupt other project schedules.
Additional Services
The terms and conditions set forth in this document constitute the sole agreement between Spotted Koi and the Client regarding Client’s Site. Any additional work not specified in the current accepted estimate must be authorized by both original parties in writing or through the Freshbooks estimation process. All additional Services will be submitted to the Client as a new estimate and charged to the Client at no less than Spotted Koi’s minimum hourly rate.
Client agrees that anything requested to be completed within 48 hours is considered by Spotted Koi to be a “rush” and will be billed at no less than 2 times the current minimum hourly rate. If the task cannot be completed within 48 hours, any billable time spent after the agreed upon turn around time for this rush task or project will fall back to the hourly rate for the type of task being completed. Spotted Koi will do its best to estimate the amount of time required for the change and will notify the customer as soon as possible upon request of this task or project. The request and authorization for these tasks must be made in writing.
Warranties and Liability
All services described herein are to be performed by Spotted Koi in accordance with the most commonly accepted standards and practices of the Web Services Industry. Spotted Koi will use the most universally accepted website development technologies to satisfy the broadest market possible.
Spotted Koi does not warrant the Client’s Site will meet Client’s expectations of traffic, resulting business, or ranking within any system. In no event will Spotted Koi be liable to Client or any third party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate Client’s Site or any of its web pages, even if Spotted Koi has been advised of the possibility of such damages.
The Client understands and agrees that no software is 100% bug free. Spotted Koi’s intention is to provide the highest quality service to its customer, including performing due diligence to identify and repair bugs created during the process of writing the code. Any problems or concerns after delivery of the final product to the Client are covered in the Project Delivery and Client Acceptance section below.
Spotted Koi will not be held responsible for any changes, bugs, or problems with any software, services, or features not written by Spotted Koi. This includes 3rd party software, frameworks, hardware, services or software provided by hosting providers, CMS software, plugins, APIs, data, upgrades, version changes, Operating Systems, server permissions, browsers, or any other software or services utilized for the operation and maintenance of the Client’s website or system.
Spotted Koi does warrant that the Client’s site will appear and operate as described in the estimate provided.
Cancellation
If Agreement is canceled before work is finished, Client forfeits any payments made, must pay for work completed at date of cancellation, and may be held liable for breach of contract.
Trademarks and Copyrights
Client represents to Spotted Koi and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Spotted Koi for inclusion in web pages are owned by the Client, or Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Spotted Koi from any claim or suit arising from the use of such elements furnished by the Client. Spotted Koi initially owns copyright to the assembled work of Services produced by Spotted Koi. Upon payment for Services rendered, all rights owned by Spotted Koi as to Services rendered for Client’s Site transfer to Client.
Web Developer Credits
Client agrees to allow Spotted Koi to claim credit for services rendered for the website on Spotted Koi’s own site(s). Client agrees to allow Spotted Koi to claim credit for Services rendered in author meta tags of Client’s Site and to reference Client’s site and project on Spotted Koi’s website.
If additional information needs to be given with the mentioning of the Client’s site on Spotted Koi’s website, it is the responsibility of the Client to provide this information.
Litigation
Any disputes arising from this contract will be litigated or arbitrated in the State of Colorado. This Agreement shall be governed and construed in accordance with the laws of the State of Colorado. The undersigned hereby agree to the terms, conditions and stipulations of this agreement on behalf of his or her organization. This Agreement constitutes the entire understanding of the parties. Any changes or modifications thereto must be in writing and signed by both parties.
This Agreement, along with any exhibits, appendices, addendums, schedules, and amendments hereto, encompasses the entire agreement of the parties, and supersedes all previous understandings and agreements between the parties, whether oral or written.
Project Delivery and Client Acceptance
All work completed by Spotted Koi is considered the Intellectual Property (IP) of Spotted Koi. IP is owned by Spotted Koi and can be reclaimed from the Client or will not be delivered to the Client until payment is made in full.
Spotted Koi will perform all development tasks on a server owned by Spotted Koi and will provide the final project for review in this manner. Once the project is accepted by Client, Spotted Koi will send the final invoice. Upon receipt of final payment against final invoice, Spotted Koi will deliver the project to Client’s server.
Problems encountered in code built by Spotted Koi must be submitted in writing to Spotted Koi within 5 business days of submission of the project for approval. 5 business days after submission for approval a project is considered 100% accepted by the Client. Any requests made after 5 business days of submission for approval will be considered new features and are required to go through the estimation process and are subject to scheduling by Spotted Koi.
Final Invoicing
Due to differences in existing code, systems, hardware and hosting, or other factors, the final project cost may differ from the estimate. Spotted Koi reserves the right to submit a final invoice for an amount within 20% of the current accepted estimate.
Additional Information
There may be additional notes provided on the estimate by Spotted Koi to the Client, specifying expected start dates, information delivery dates, final project delivery dates as well as other information. Acceptance of the estimate by the Client, indicates that the Client understands, accepts, and agrees upon these dates and any additional information or notes provided.
Rates, delivery dates, and/or procedures described above can be modified by agreed upon written consent of both Spotted Koi and Client. Such written consent will override information provided in this contract, so long as that is clearly defined, stated, and signed by Spotted Koi.
Spotted Koi reserves the right to update and modify any and all parts of this document at any time for any future estimates, without notice to the Client. It is the obligation of the Client to read and understand all information provided in this document. Spotted Koi will at a minimum, provide the most recent Terms of Service on the Terms of Service page found at http://spottedkoi.com/terms-of-service as well as on every new estimate that is sent to Client.
Spotted Koi reserves the right to update and modify any and all previously agreed upon written agreements for any future estimates and work. The Client will be notified and given the opportunity to discontinue future business with Spotted Koi or accept the new Terms of Service.
Contact Information
If you have questions, concerns or comments about our Terms of Service, please contact us through our email: TOS@spottedkoi.com
Back to the Top
Change List
12-14-2011
- Added in stipulation about $500 projects:
- Client agrees to pay Spotted Koi a down payment of 50% of the total current estimate submitted to Client for any projects $500 or more, immediately proceeding acceptance of the estimate by the Client. For projects of $500 or less, client agrees to pay Spotted Koi 100% of the project cost up front.
09-01-2011
- Modification of late fee schedule:
- Final payment is due within 15 days of receipt
- A late fee of 5% of remaining balance will be applied on the 16th day and every 5 days after that
- After 3 late fees a collections attorney will be brought in
07-17-2011
Summary of Changes
- Estimation Process
- It is the responsibility of the customer to provide a written Scope of Work to Spotted Koi for every project
- The client must fully review the estimate, as anything not explicitly defined in the estimate will be considered out of scope and a new estimate and schedule will be provided to fulfill any requests that are out of scope of the estimate.
- Spotted Koi reserves the right to modify and resubmit the estimate to the client after receiving any new information
- If the estimate has not been accepted within 30 days of receipt, then it is null and void and a new estimate and schedule will need to be defined.
- Payment Process
- Spotted Koi’s minimum hourly rate for all customers after July 15 will be $85/hr
- Spotted Koi will no longer begin any work whereby the down payment has not been received
- Clients should pay down payments within 7 business days of accepting the estimate, any later than that and the project can be rescheduled
- Final invoices for projects will be paid within 5 business days of receipt of invoice.
- Every 5 days after receipt of final invoice, 5% of remaining balance will be added to the invoice.
- After 15 business days of non-payment, the invoice will be submitted to our collection attorney.
- Performance
- Added items to the list of data provided to Spotted Koi by the client
- designs
- page hierarchies
- wireframes
- Changed “delay the project for as many business days as the information or files are past due” to “reschedule the project so as not to disrupt other project schedules”
- Added items to the list of data provided to Spotted Koi by the client
- Additional Services
- modified the language to say “at no less than Spotted Koi’s minimum hourly rate” from “Spotted Koi’s standard hourly rate”
- Warranties and Liability
- Added “ranking in any system” to the list of things that are not guaranteed by Spotted Koi’s work.
- Added items to the list of items that could change, have bugs, or that are outside the control of Spotted Koi
- frameworks
- server permissions
- Web Developer Credits
- Client agrees to allow Spotted Koi the option to link to and talk about the project on SpottedKoi.com
- It is the responsibility of the Client to provide any additional information to the description of what SpottedKoi posts on Spottedkoi.com
- Project Delivery and Client Acceptance
- Spotted Koi will no longer do new development on customer’s servers, all new development will be done on a subdomain of SpottedKoi.com
- The project will be provided to the customer for final review at the spottedkoi.com subdomain
- The customer will be given 5 business days to accept the final version of the site
- After 5 days, the site will be considered accepted and final invoice will be sent
- After 5 days, any requests or modifications are considered new work and will be re-estimated.
- After final payment is received, Spotted Koi will deliver the website to the customer’s server
- Final Invoicing
- Removed “changes to original scope of a project” as all changes to the scope of the project will be considered “outside of the scope” of the original project and will require a new estimate – per the statements in the Estimate section of the agreement.
- Additional Information
- Spotted Koi will provide the current TOS at the following location on their website at http://spottedkoi.com/terms-of-service
- Spotted Koi can submit revisions to previously agreed upon written terms to the customer who has this agreement with Spotted Koi