General Terms & Conditions
The following terms & conditions will become effective on January 1, 2022. The following terms & conditions were last updated on November 25, 2015. This will apply to all past, present and future users, customers, members, consumers, etc. This list of terms & conditions may be adjusted, and a customer’s consent is required within 90 days. If a client does not respond to the updated terms & conditions, their account will be suspended until they agree to the new terms.
These terms and conditions (‘Agreement’) constitute a legal agreement between Client (as indicated within this Agreement) and Burke Systems Inc (‘Company’) as work for hire. By using Company’s services Client agrees to be bound by the following terms and conditions and those other terms and conditions relevant to specific services as indicated within this Agreement.
The client will designate an individual as an authorized contact for each project and all communications between the Company and Client shall be through this individual who shall have the authority to bind the Client and commit to a particular course of action for the project. Approvals are benchmarks in the project to ensure Company is meeting the Client’s expectations and will be contractually binding. Only Written approvals given by the authorized contacts will be accepted. In the event that there is disagreement or conflict, such disagreement or conflict shall be considered Rework, and an additional $150.00 per hour fee will be paid for such Rework.
‘Rework’ is defined as any work or services performed by the Company that is necessitated by the Client’s failure to comply with these terms and conditions or any work or services that is performed outside the scope of the original agreement between the parties. In the event that any Rework is performed, Client agrees to pay the company at its then current hourly rate for such Rework in addition to and notwithstanding any fixed price, budgeted price, or not to exceed price quoted or agreed. Rework includes returning text and strategies set for search engines, or other work that has been altered by the Client, back to its form, format, or of other origins, created, formatted, and performed by the Company.
Expected dates and timelines are estimates only. For any Rework, additional fees may apply up to $150 per hour and new proposals may be drafted.
In order to for all and any work to be completed upon expected dates, all information, text, graphics, designs, or other content must be either selected or provided to Company in a digital format within a reasonable and timely manner. Additional fees may apply.
Client warrants that any information, text, images, or any other content it places on the website will not infringe on the copyright, trademarks, service marks, patents, or other intellectual property or personal rights held by any third party. Client shall indemnify and hold Company harmless against any liabilities arising from any products or services provided by Client in connection with its website and any actual or alleged defamatory, illegal, or infringing material provided by Client for placement on the website. All Client supplied content will be prepared, organized, and supplied digitally on disk or by e-mail in a proof-read state, finished and ready for publishing. Any additional work or services rendered, due directly or indirectly to Client’s failure to comply with this requirement, shall be considered Rework.
To ensure that the project continues on schedule and within budget, the Client must timely reply to all Company requests for input and support within 30 days of the Company’s written request (including email). If a complete and comprehensive response is not received from the Client within 30 days of the Company’s written request (including email), the project is considered suspended and may (at that time or at any time thereafter), at the option of the Company, be considered abandoned.
Client shall employ Company exclusively and not retain, employ, consult, or hire any third party companies for any other web services during the period that Client is bound by this Agreement.
The Client shall receive a 10% discount if the total project cost is paid in full at the signing of this Agreement. Client shall pay all services 30 days in advance to Company if not enrolled in the automatic billing program. Hosting Accounts must be paid before the Company performs work.
All outstanding fees not paid in advance are due within 30 days of the invoice date, with the exception of S.E.O. Campaigns (organic and pay-per-click) shall be paid upon receipt of the invoice. If Client fails to pay any invoiced amount within 30 days of the invoice date, the project is considered suspended and may (at that time or at any time thereafter), at the option of the Company, be considered abandoned. If Client fails to pay any invoiced amount within 60 days of the invoice date the project will automatically be considered abandoned. If Client fails to pay within 90 days, the account will be sent to collections.
Client’s site will not be put ‘live’ until final balance for outlined project is paid in full.
In the event of Client’s breach of this Agreement (whether or not a lawsuit is commenced or filed) if an attorney is engaged by the company (including in-house or corporate counsel), the Client shall be responsible for all attorney’s fees, demand letters, collections costs, filing fees, court costs and other legal fees, costs and expenses. In addition to and not in lieu of its other rights and remedies, in the event that Client does not pay when due any amount owed to Company, the Company shall be entitled to, and the Client shall be responsible to pay for, all outstanding fees, interest and attorney’s fees, costs of collection, etc… necessitated by the Client’s non-payment. Client hereby agrees to defend, indemnify, and hold harmless Company, its employees, agents, representatives and subcontractors for any and all loss, damages, costs and expenses, including without limitation, site down time and all claimed or actual loss of business income, revenue, profit, and loss of business opportunity, loss of competitive position related to Company’s actions arising out of, related to, or in connection with any action taken by Company in relation to Client’s breach, and any suspension, abandonment, or termination by Company.
Client shall provide a credit card for Company’s records and work shall commence upon receipt of such credit card. Client hereby authorizes Company to charge any and all amounts due Company (including without limitation at the beginning of every month for that month’s Hosting and Maintenance service) to one or more Client credit cards on file, and/or affect an ACH transfer of funds from any bank account that the Client used or is using to pay for any services of Company related to this or any other project. Client authorizes Company to retain and maintain on file copies of Client checks for this purpose. The individual executing this Agreement on behalf of the Client hereby without further writing agrees to personally and individually guarantee each and every Client payment obligation under this Agreement.
Upon termination of the agreement, the Company will provide the customer with all website, web designs, and custom programming related to the account within this agreement. Any outstanding balance will be required to be paid in full to release files to the customer. 30 days written notice is required to cancel or terminate services.
Guarantor guarantees to Company the payment of the amounts due under this Agreement (the ‘Obligations’). This is a guarantee of payment and not only of collection. Company may, at its option, proceed against Guarantor and Client, jointly and severally, or Company may proceed against Guarantor under this Agreement without commencing any suit or proceeding of any kind against Client, or without having obtained any judgment against Client.
The obligations of Guarantor under this Agreement are unconditional, are not subject to any set-off or defense based upon any claim Guarantor may have against Company, and will remain in full force and effect without regard to any circumstance or condition, including, without limitation: (a) any modification of the Agreement (except that the liability of Guarantor hereunder will apply to the Agreement as so modified); (b) any exercise or non-exercise by Company of any right or remedy in respect of the Agreement, or any waiver, consent or other action, or omission, in respect of the Agreement or (c) any transfer by Company or Client in respect of the Agreement or any interest in the project; (d) any bankruptcy, insolvency, receivership, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding involving or affecting Company or Client or their obligations, properties or creditors, or any action taken with respect to such obligations or properties, the project or the Agreement, by any trustee or receiver of Company or Client, or by any court, in any such proceeding; (e) any defense to or limitation on the liability or obligations of Client under the Agreement, or any invalidity or unenforceability, in whole or in part, of any obligation of Client under the Agreement or of any term of the Agreement; or (f) any transfer by Guarantor of any or all of the capital stock of Client or the control thereof.
Guarantor waives presentment and demand for payment, notice of non-payment or non-performance, and any other notice or demand to which Guarantor might otherwise be entitled. Guarantor will reimburse Company for all costs and expenses incurred by Company in connection with the enforcement of this Guarantee, including, without limitation, reasonable attorneys’ fees.
Should Company be obligated in any bankruptcy proceeding to repay to Client or Guarantor or to any trustee, receiver or other representative of Guarantor any amounts previously paid, then this Guaranty shall be reinstated in the amount of such repayment. Company shall not be required to litigate or otherwise dispute its obligation to make such repayment if it in good faith on the advice of counsel believes that such obligation exists.
Guarantor, at his expense, will execute, acknowledge and deliver all instruments and take all action as Company from time to time may request for the assuring to Company the full benefits intended to be created by this Agreement.
If any provision of this Agreement or the application thereof to any person or circumstance will to any extent be held unenforceable, the remainder of this Agreement or the application of such provision to persons or circumstances other than those as to which it is held unenforceable, will not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
This Agreement will inure to the benefit of and may be enforced by Company and its successors or assigns, and will be binding upon and enforceable against Guarantor and its successors, assigns, heirs and personal representatives.
In the event, that the project is considered suspended for any reason stated herein, the Client shall pay to Company those costs Company incurs to effect the suspension (and if applicable those costs of Company to effect the restart) of the project. In the event that Company deems the project to be abandoned, this Agreement shall be terminated and all fees, if any, owed to the Company up to and including the date of termination and Termination Cost shall be paid by the Client to the Company.
In the event that service is suspended there may be interruptions in site’s service and other services including, without limitation, SEO Services, Website Payments, Email, Hosting and other services. For restoration of Client’s services, Company may incur additional costs and fees and shall be paid by Client.
If project is idle, suspended, or abandoned due to Client’s failure to perform its duties and responsibilities of this Agreement, payment is not received, or due to Client indecision, then Company reserves the right to stop work and Client’s deposit will be forfeited. A new deposit will be required to resume work.
‘Termination costs’ shall include without limitation, the costs of (including Company time spent) backing-up, storing, maintaining, safeguarding, and/or disposing of any and all materials and information related to the project, suspending performance, retooling, re-starting, leading up to termination of performance on the project.
Cancellation and Refunds
Client requested cancellation must be made by written notice received by Company 30 days prior to cancellation date and delivered via U.S. Postal Service Certified Mail, with Return Receipt Requested. Client requested cancellations will only be implemented if all amounts due and payable to Company have been paid up to the date of cancellation. Deposits/Retainers are non-refundable fees that are deemed earned when received. Without prejudice to any other rights, Company may terminate this Agreement at any time should Client fail to comply with the terms and conditions of this Agreement.
Web work, SEO Services, web design, social media, email, programming or hosting other services provided by Company, once under contract, shall be nonrefundable, unless Company’s discretion permits otherwise.
Client shall give 30 days notice to Company for moving all web content to another server, via U.S. Postal Service Certified Mail, Return Receipt Requested. Company shall provide all programming, including files and database files if applicable. Additional fees may apply for complete functionality on the new server. Company may consult Client in order to ensure that codes work properly on new server and additional fees may be incurred from such consultation. Administration panel is sole and exclusive property of Company, and can be recreated for use on new server, for additional fees. SSL certificates are nontransferable and are non-refundable. New certificates must be purchased each time a website is moved and applied at an additional cost.
Client acknowledges that Company makes absolutely no warranties whatsoever express or implied. Client agrees that Company shall not be liable to the Client for any claims or damages which may be suffered by the Client, including, but not limited to, losses or damages resulting from the loss of data as the result of delays, non-deliveries, or service interruptions. COMPANY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Specifically, Company does not warrantee that the website URL(s) is/are suitable for any particular industry or institution nor does Company warrant that services will generate any business, employment, retention, or conversion for Client. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO CLIENT FOR LOST OR ANTICIPATED PROFITS, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR ANY OTHER TYPE OF INDIRECT DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT WHETHER ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THE ACTS OR OMISSIONS OF COMPANY ITS EMPLOYEES, AGENTS, REPRESENTATIVES, AND SUBCONTRACTORS, OR OTHERWISE.
Rights in data
All work performed by the Company is considered “Work for Hire” with the exception of proprietary marketing techniques, plugins, or content. Once work has been completed and the customer has fulfilled the payment terms the files, logos, designs, and other information pertaining to the Customer account that is not the property of the Company, will be turned over to the Customer upon completion and/or termination of the agreement.
Changes In Terms Of Agreement
Company reserves the right to make changes to the Search Engine Optimization, Sponsored Campaigns / PPC, and Internet Marketing Information terms and conditions of this Agreement upon thirty (30) days notice to the Client, advising of the change and the effective date thereof, but with changes in service fees being effective only at the end of any period for which the Client has prepaid. Utilization of the service by the Client following the effective date of such change shall constitute acceptance by the Client of such change(s).
Limitation of Liability
Client acknowledges the following with respect to services:
Company has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. Client site may be excluded from any directory at any time at the sole discretion of the search engine or directory. (Company will resubmit those pages that have been dropped from the index.)
Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms and other competitive factors, Company does not guarantee #1 positions or consistent top 10 positions for any particular keyword, phrase or search term. However, if Company fails to achieve 3 top 30 positions in the major search engines, Company will start over SEO services with no cost to Client. In order for Company to meet its obligations, additional web pages may be created for proper visibility of keywords. Additional fees may be incurred by Client for changes in keywords and locations.
Some search engines and directories may take as long as 2 to 4 months, and in some cases longer, after submission to list your site.
Occasionally, search engines will stop accepting submissions for an indefinite period of time and search engines will drop listings for no apparent or predictable reason. Often listing will reappear without any additional submissions. Should the listing not reappear, Company will re-submit the site based on the current policies of the search engine in question.
Some search directories offer expedited listing services for a fee. Company encourages clients to take advantage of these expedited services.
Client is responsible for expedited service fees, example Yahoo, unless otherwise noted in the package Client purchases.
Other than invoices by Company to Client, all notices and other communications hereunder to the parties shall be in writing and shall be deemed duly given when sent by Registered Mail or Certified Mail, Return Receipt Requested sent to the addresses on the face of this Agreement;
This Agreement, and those terms incorporated by reference, contain the entire understanding of the parties hereto with respect to the subject matter hereof and thereof and supersede any and all prior agreements and understandings, oral and written, among the parties with respect to the subject matter hereof and thereof. The terms as indicated within this Agreement referred to herein are attached hereto and incorporated herein by this reference. Should any provision of this Agreement for any reason be declared invalid or unenforceable by a court of competent jurisdiction, such decision shall not affect the validity or enforceability of any of the other provisions of this Agreement, which other provisions shall remain in full force and effect and be enforced to the fullest extent permitted by law.
This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, directly or indirectly, whether voluntarily, involuntarily, by operation of law or otherwise, by any party hereto without the prior written consent of the other parties. This Agreement may be executed simultaneously in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement has been negotiated by the respective parties hereto and the language hereof will not be construed for or against any party. The article and section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement.
This Agreement and any claim related directly or indirectly to this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of law thereof that would defer to or result in the application of the substantive laws of any other jurisdiction. All legal proceedings shall be maintained within the county or Nassau in the state of New York.
This Agreement may not be amended, modified or supplemented except pursuant to an instrument in writing signed by each of the parties hereto. Any failure of Company to comply with any term or provision of this Agreement may be waived by Client at any time by an instrument in writing signed on behalf of Client and any failure of Client to comply with any term or provision of this Agreement may be waived by Company at any time by an instrument in writing signed on behalf of Company, but any such waiver or failure to insist upon strict compliance with such term or provision shall not operate as a waiver of, or stopped with respect to, any subsequent or other failures to comply.
As used in this Agreement (a) words in the singular shall be held to include the plural and vice versa, (b) words of one gender shall be held to include the other genders as the context requires, (c) the terms ‘hereof’, ‘herein’ and ‘herewith’ and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement and not to any particular provision of this Agreement, (d) the word ‘including’ and words of similar import when used in this Agreement, shall mean ‘including, without limitation’, unless otherwise specified, and (e) the word ‘or’ shall not be exclusive.