Agreement
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CLIENT AGREEMENT
DCOM
Productions
Effective May 16th, 2011, until
replaced.
THIS DESCRIBES THE TERMS AND CONDITIONS OF YOUR RECEIPT AND PAYMENT OF SERVICE AND
IS SUBJECT TO DISCLAIMER OF WARRANTIES (SECTION 7). IF YOU DO NOT ACCEPT THESE
TERMS, BUSINESS WILL NOT BE CONDUCTED AND SERVICE WILL NOT BE PROVIDED. IF YOU
INSTEAD DECIDE TO RECEIVE SERVICE, IT WILL MEAN THAT YOU ACCEPT THESE TERMS AND THEY WILL BE LEGALLY BINDING.
CONTACTING DCOM PRODUCTIONS
You may contact DCOM Productions
24 hours a day, any day of the year, by sending an email to
danderson@dcomproductions.com, or by writing to:
DCOM Productions
David Anderson
679 S. McCoy Dr.
Pueblo West, CO 81007-1720
You may also call DCOM Productions
at 1-(719)-369-7558 and request to speak to David Anderson.
Thank you for choosing DCOM
Productions. DCOM Productions provides software development and information
technology services (referred collectively as “Service”) to residents of the
United States. DCOM Productions does not provide Service to addresses outside of
the United States.
CLIENT AGREEMENT
1. SERVICE AGREEMENT AND TERM
These are the terms on which DCOM
Productions will provide you service.
To keep costs down for you, DCOM
Productions provides consultation services, accurate requirements, and accurate
estimates at reduced or no cost. In exchange, DCOM Productions asks that you
remain a client until the full completion of the Service.
You agree to remain a client until the
full completion of the Service as outlined in the Project Architecture & Design
Requirements Document.
THIS AGREEMENT TO MAINTAIN SERVICE
IS SEPARATE AND DIFFERENT FROM ANY OTHER YOU MAY HAVE MADE WITH DCOM PRODUCTIONS
AND IS FULLY ENFORCEABLE UNDER THESE TERMS.
(a)
Project Architecture & Design Requirements Document. Also referred
collectively as “Project A&D Document”, is provided to you with your initial
consultation. This document outlines the details of your Service as well as the
cost for that Service. You may request to make amendments to the Project A&D
Document, only by contacting DCOM Productions, which may result in a fee as
described in Section 2(b). By requesting to make an amendment to the Project A&D
Document, your cost for your Service may change as well. If an amendment is
requested by you, and approved by DCOM Productions, it must bear both your
signature and the signature of a DCOM Productions representative, as well as the
date that the amendment is to take into effect. Without these, the amendment is
null and void.
(b)
Software. You may be provided with digital goods such as source code, files,
images, documents, or other similar items of stature, referred collectively as
“Software”. These items are copyrighted material and are subject to disclaimer
of warranties (see Section 7).
2. PAYMENT
In return for receiving Service
from DCOM Productions, you promise to pay as follows:
(a)
Payment Options. You will pay, in accordance with any of the available
payment options in the list below, at DCOM Production’s rates in effect at the
time for all Service requested by you, until the Service is complete, or
cancelled. DCOM Productions may, in its own discretion, accept partial payments,
which will be applied to the oldest outstanding statement. No “payment in full”
notation or other restrictive endorsement written on your payments will restrict
DCOM Production’s ability to collect all amounts owed. DCOM Productions may
cancel your Service if you do not pay your statements on time, after any
applicable grace period.
(1)
Initial Deposit. You agree to pay 50% of the total amount due in the Project
Architecture & Design Requirements Document within 15 days, after signing this
agreement, and prior to receiving any Service. If you do not pay 50% of the
total amount due within 15 days, DCOM Productions may cancel your Service, and
you may be subject to a cancellation fee as described in Section 2(b). After
Service is complete, you will be sent a final statement. You agree to pay the
remaining 50% of the total amount due within 30 days of receipt of your final
statement. If you do not pay the full 50% of the amount due that remains within
30 days, you will be subject to a Late Fee as described in Section 2(b). If,
after 45 days, you have not paid the remaining 50% of the amount due, DCOM
Productions may cancel your Service, and you may be subject to a cancellation
fee as described in Section 2(b), in addition to your outstanding balance. Once
you have paid 100% of the total amount due in the Project Architecture & Design
Requirements Document, your completed Service will be delivered.
(2)
Biweekly Statement. This payment
option applies only to projects that, in total cost, equal or exceed $1000 and a
minimum timeframe of 30 days. You will be sent a biweekly statement, which
is to be paid, in full, within 14 days of the statement date. If you do not pay
your statement, in its entirety, within 14 days, you may be subject to a Late
Fee as described in Section 2(b). If, after 28 days, you have not paid the
entire amount due, DCOM Productions may cancel your Service, and you may be
subject to a cancellation fee as described in Section 2(b), in addition to your
outstanding balance. If during the duration of your Service you have paid the
entire amount due as outlined in your Project Architecture & Design Requirements
document, but Service is not yet complete, you will no longer owe any amount
towards your Service, unless you make specific changes to the Project
Architecture & Design Requirements Document, that specifically change the cost
of the Service. Once you have paid 100% of the total amount due in the Project
Architecture & Design Requirements Document, your completed Service will be
delivered.
(b)
Administrative Fees. To control the basic charges which apply to all
customers, DCOM Productions may charge fees that rise in specific circumstances
only to those customers responsible for them. The list below is not exclusive,
and DCOM Productions reserves the right to modify these fees or charge
additional fees. In each case, DCOM
Productions will charge you the lesser of the fee listed or the maximum amount
permitted under applicable law:
(1)
Up to $5.00 Late Fee: If DCOM
Productions does not receive your payment by the due date on your bill, DCOM
Productions may charge you an administrative fee of (i) $5.00; or (ii) the
maximum amount permitted under and subject to applicable law per month or
partial month until the delinquent amount is paid in full. This late fee is
not an interest charge, finance charge, time price differential or other such
charge or payment of a similar nature. You acknowledge that this fee is
reasonably related to the actual expense DCOM Productions incurs due to late
payment and may be subject to limitations set forth by the law in your state.
(2)
Deposits: DCOM Productions may require that you provide a deposit prior to
or after you have requested Service, which may be applied against any unpaid
amount at any time. Deposits will appear on your bills as credits, from which
DCOM Productions will deduct your charges. Deposits will not earn interest.
(3)
Up to 30% Early Cancellation Fee: If you do not remain a client for
the full term, DCOM Productions will charge you an early cancellation fee. The
maximum fee is 30% of the total cost of your Service. If your Service is $500,
your cancellation fee is $150. DCOM Productions reserves the right to change
this fee when a change is made to the Project Architecture & Design Requirements
Document.
(4)
Up to $10 Project A&D Requirements Document Change Fee: DCOM Productions may
charge you an administrative fee of $10 for reasonable expenses DCOM Productions
incurs due to the amendment request made by you. This fee is not an interest
charge, finance charge, time price differential or other such charge or payment
of a similar nature. You acknowledge that this fee is reasonably related to the
actual expense DCOM Productions incurs due to the work required to change the
Project A&D Requirements Document.
(d)
Billing Statements. You will receive a billing statement in correspondence
to the payment option you selected for Service, as outlined in Section 2(a).
(e)
Questions about Your Statement. If you think your statement is incorrect, or
if you need more information about it, contact DCOM Productions immediately.
DCOM Productions will try to resolve any complaints you have as promptly as
possible.
You must contact DCOM Productions within 60 days
of receiving the statement in question. Undisputed portions of a statement must
be paid by the due date to avoid a late fee and possible reduction or
cancellation of Service.
(g)
Collection Costs. To the extent permitted by law, you will pay DCOM
Productions any costs and fees DCOM Productions reasonably incur to collect
amounts you owe.
3. CUSTOMER INFORMATION
(a)
Representations. You represent that you are at least 18 years of age and a
resident of the United States.
(b)
Contact Information. You agree to provide true, accurate, and current and
complete contact information about yourself, and maintain and promptly update
your contact information to keep it true, accurate, and complete.
4. CHANGES IN CONTRACT TERMS
DCOM Productions reserves the
unrestricted right to change the terms and conditions on which Service is
offered. If such changes are made, you will be sent a copy of the new Client
Agreement containing its effective date. You always have the right to cancel
your Service, in whole or in part, at any time, and you may do so if you do not
accept any such changed terms and conditions. See Section 5 below. If you elect
not to cancel your Service after receiving a new Client Agreement, your
continued receipt of Service constitutes acceptance of the changed terms and
conditions. If you notify DCOM Productions that you do not accept such terms and
conditions, then DCOM Productions may cancel your Service as provided in Section
5, as DCOM Productions cannot offer Service on which you do not agree to the
terms and conditions.
5. CANCELLATION
(a)
Term. The term of this Agreement is indefinite and Service will continue
until completed as outlined in the Project Architecture & Design Requirements
Document, or until cancelled herein. Unless you notify DCOM Productions that you
wish to cancel it, this Agreement will continue until the Service is completed.
(b)
Your Cancellation. You may cancel your Service by notifying DCOM
Productions. You may be charged a cancellation fee as described in Section 2 and
issued a credit as described below. Your notice is effective on the day DCOM
Productions receives it. You will still be responsible for payment of all
outstanding balances accrued through that effective date. Furthermore, future
charges will be cancelled for Service. For example, if you have Service that is
$500, and you have received $200 of Service, your final bill will be $350 which
consists of $200 for Service, and your $150 cancellation fee.
(c)
DCOM Production’s Cancellation. DCOM Productions may cancel your Service at
any time if you fail to pay amounts owed to DCOM Productions when due, subject
to any grace periods, breach any other material provision of this Agreement, or
act abusively toward DCOM Productions staff. In such case, you will still be
responsible for payment of all outstanding balances accrued through that
effective date, including the cancellation fee described in Section 2. In
addition, DCOM Productions may cancel your Service if you elect not to accept
any changed terms described to you, as provided in Section 4.
(d)
Credit Balances. When your Service is
cancelled, DCOM Productions will review your statements and refund any excess
monetary payments.
6. DCOM PRODUCTIONS SERVICE AND SOFTWARE LICENSE
(a)
Ownership of Software and Reservation Rights. The Software outlined in your
Project Architecture & Design Requirements Document is sold to you and you have
exclusive use rights to copy, modify, distribute or otherwise the Software
obtained by you, from DCOM Productions. Software not specified or outlined in
the Project Architecture & Design Requirements document does not apply to these
terms.
(b) Disclaimer. THE SOFTWARE IS TO THE
EXTENT PERMITTED BY LAW SUPPLIED "AS IS". NEITHER DCOM PRODUCTIONS NOR ANY OF
ITS LICENSORS EXPRESSLY MAKES OR PASSES ON TO YOU ANY WARRANTY OR REPRESENTATION
ON BEHALF OF DCOM PRODUCTIONS OR ITS LICENSORS WITH RESPECT TO THE SOFTWARE,
INCLUDING BUT NOT LIMITED TO ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT
NOT LIMITED TO) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY
RIGHTS.
(c)
Limitation of Liability. IN NO EVENT WILL DCOM PRODUCTIONS OR ITS LICENSORS
BE LIABLE TO YOU WITH RESPECT TO THE SOFTWARE FOR ANY DIRECT, INDIRECT,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGE (INCLUDING LOSS OF
PROFITS, LOST SAVINGS, LOSS OF DATA OR THE COST OF PROCUREMENT OF SUBSTITUTE
GOODS, TECHNOLOGY OR SERVICES) ARISING OUT OF THE USE OR THE INABILITY TO USE
THE SOFTWARE, EVEN IF DCOM PRODUCTIONS OR ITS LICENSORS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY A THIRD PARTY. Some states or
jurisdictions do not allow the exclusion or limitation of incidental,
consequential or special damages, so the above limitations may not apply to you.
7. LIMITS ON DCOM PRODUCTION’S RESPONSIBILITY
(a)
Service Interruptions. Service may be interrupted from time to time for a
variety of reasons. DCOM Productions is not responsible for any interruptions of
Service that occur due to acts of God, power failure, or any other cause beyond
reasonable control. DCOM Productions does not provide any type of compensation
for an interruption of Service, in any way.
(b)
Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, DCOM PRODUCTIONS MAKES NO
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING ANY SERVICE,
WHICH IS PROVIDED TO YOU AS IS. ALL SUCH WARRANTIES OR REPRESENTATIONS,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARE DISCLAIMED. YOU
ARE RESPONSIBLE FOR THE LOSS OF OR ANY DAMAGE TO THE SOFTWARE.
(c) Limitations of Liability.
DCOM PRODUCTIONS IS NOT RESPONSIBLE FOR ANY CONSEQUENTIAL DAMAGES OR LOSSES
RELATING TO THE SOFTWARE OR ANY SERVICE, WHETHER BASED ON NEGLIGENCE OR
OTHERWISE. REGARDLESS OF THE CAUSE, DCOM PRODUCTION’S TOTAL LIABILITY FOR
DAMAGES OR LOSSES TO YOU AND ANY OTHER PERSONS RECEIVING SERVICE FROM DCOM
PRODUCTIONS WILL IN NO EVENT EXCEED THE AMOUNT THAT YOU HAVE PAID TO DCOM
PRODUCTIONS FOR THE SERVICE THAT YOU RECEIVED DURING THE SIX (6) MONTH PERIOD
IMMEDIATELY PRIOR TO THE SPECIFIC EVENT THAT GAVE RISE TO THE APPLICABLE DAMAGE
OR LOSS. THIS ALLOCATION OF RISK IS REFLECTED IN DCOM PRODUCTION’S PRICES. You
may have greater rights than described above under your state's laws. You should
consult them.
(d) Warranty Services. You
agree that this Agreement does not provide for, and the Service does not
include, any warranty services or other services that DCOM Productions might
provide separately, including, without limitation, any fee based or other
warranty programs.
8. MISCELLANEOUS
(a)
Notice. Notices to you will be deemed given when personally delivered,
addressed to you at your last known address and deposited in the U.S. Mail
(which may include inclusion in your billing statement), or sent via Internet to
the e-mail address you provided us or delivered when a voice message is left at
the telephone number you provided last. Your notices to us will be deemed given
when we receive them at the address or telephone number on the first page of
this Agreement.
(b)
Applicable Law. The interpretation and enforcement of this Agreement shall
be governed by the rules and regulations of applicable federal laws, and the
laws of the state and local area where Service is provided to you. This
Agreement is subject to modification if required by such laws.
(d) Other. This Agreement
and any other service commitment agreement that you entered into in connection
with obtaining Service constitute your entire agreement with DCOM Productions.
No salesperson or other representative is authorized to change it. If any
provision is declared by a competent authority to be invalid that provision will
be deleted or modified to the extent necessary, and the rest of the Agreement
will remain enforceable. The terms of this Agreement that expressly or by their
nature survive termination shall continue thereafter until fully performed.
THANK YOU.
© 2011
DCOM Productions. DCOM Productions and the DCOM Productions logo are copyrighted
material of David S. Anderson.