21. CONTRACT SERVICE PROVIDERSElijahClark.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.
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.
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 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.
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:
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 TECHNICALITIESColors: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.File Format: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.
31. MARKETING REPRESENTATIONSElijahClark.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 DISPUTESElijahClark.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
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 SERVICEElijahClark.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 DATEClient 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 ACCEPTANCEUpon 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 CLAIMSClient 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.
40. INDEMNIFICATIONClient 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.