MUTUAL SERVICES AGREEMENT (MSA)
Between us, Cymatics, Inc. and you, known as (“Client”) (collectively hereinafter “Party or “Parties”).
Recitals
Cymatics, Inc. is in the business of creating custom website designs, website development, providing web hosting, ongoing maintenance and related services. Client wishes to utilize the services of Cymatics, Inc. for this purpose as well as for other related services as set forth below.
Summary
You, (“Client”), are hiring us, Cymatics, Inc.
What Do Both Parties Agree To Do?
As our client, you have the power and ability to enter into this contract on behalf of your company or organization. You agree to provide us with everything that we’ll need to complete the project – including text, images and other information – as and when we need it and in the format we ask for. You agree to review our work, provide feedback and approval in a timely manner, too. Deadlines work two ways and you’ll also be bound by any dates that we set together. You also agree to stick to the payment schedule set out at the end of this agreement/contract.
We have the experience and ability to perform the services you need from us and we will carry them out in a professional and timely manner. Along the way we will endeavor to meet all the deadlines set but we can’t be responsible for a missed launch date or a deadline if you have been late in supplying materials or have not approved or signed off our work on-time at any stage. On top of this we’ll also maintain the confidentiality of any information that you give us.
This MSA remains in force through this project and any future projects or services the “Client” may decide to contract Cymatics, Inc. for.
Design
Designs need to adapt to the capabilities of many devices and screen sizes. We create them iteratively and use predominantly HTML and CSS so we won’t waste time mocking up every template as a static visual. We may use visuals to indicate a creative direction (color, texture and typography.) We call that ‘atmosphere.’ We will review any PSD or XD files and check for any issues that may pose problems for mobile friendliness, color contrast, etc.
You’ll have plenty of opportunities to review our work and provide feedback. We’ll set up a Google Drive folder with you and we’ll have regular, possibly daily contact by either phone or Zoom.
If—at any stage—you change your mind about what you want delivered or aren’t happy with the direction our work is taking, you’ll pay us in full for the time we’ve spent working until that point and may terminate this agreement/contract.
HTML and CSS Layout Templates
If the project includes HTML markup and CSS templates, we’ll develop these using valid HTML and CSS code. The landscape of web browsers and devices changes regularly and our approach is to look forward, not back. With that in mind we will test all our markup and CSS in current versions of all major desktop browsers to ensure that we make the most from them. Users of older or less capable browsers or devices will experience a design that is appropriate to the capabilities of their software.
We do not cater for people using Microsoft Internet Explorer and cannot predict the behavior of that browser.
We will also test that these templates perform well on Apple’s iPad. We will not test old or abandoned browsers, for example Microsoft Internet Explorer or 5.5 for Windows or Mac, previous versions of Apple’s Safari, Mozilla Firefox or Opera unless otherwise specified.
Text content
Unless agreed separately, we’re not responsible for inputting text or images into your content management system or creating every page on your website. We provide professional copywriting and editing services, so if you’d like us to create new content or input content for you, we’ll provide a separate estimate.
Graphics and photographs
You should supply graphic files in an editable, vector digital format. You should supply photographs in a high resolution digital format. If you choose to buy stock photographs, we can suggest stock libraries. If you’d like us to search for stock photographs for you, we can provide a separate estimate.
Use of Clients Materials
Should Cymatics, Inc, upon Client’s written request, verbal instruction or delivery of materials, utilize Client’s materials which may include, but are not limited to, photographs, text, software, code, copyrighted material and/or materials that may be owned by third parties (“Client’s Materials”), Client acknowledges and agrees that neither Cymatics, Inc. nor its employees, agents or anyone acting on its behalf have made any representation to Client regarding Client’s entitlement to use Client’s Materials. Client acknowledges and agrees that Client has relied on its own investigation to establish whether Client is entitled to use Client’s Materials. Client agrees to defend, indemnify and hold Cymatics, Inc, its employees, agents or anyone acting on its behalf harmless from any and all claims of any kind including, but not limited to, all lawsuits for damages, royalties, penalties, interest, legal fees, expert fees and court costs of any kind (“Claims”) arising out of, related to, or alleged to arise out of or relate to any use of Client’s Materials unless such Claims are due to Cymatics, Inc’s gross negligence or intentional misconduct.
Integration of plugins
Some plugins are free and we will utilize this option whenever possible. However, some are paid plugins. We will advise you of this issue before fully integrating such plugins. We have licenses to several plugins as well as with the Divi theme. If you choose to have Cymatics, Inc. to maintain the website after launch, we will use our licenses during such time. If you decide to leave our maintenance program, you will be responsible for purchasing the plugins and theme to maintain the website’s look and functionality.
To streamline some of the integrations needed for various plugins and functionality, we will create a generic Google Gmail account. This way we won’t have to keep contacting you for any 2FA issues. Once the site is live and final payment is made, the access to this account will be given over to you. You then will be able to change the password and any security details as you wish.
Browser testing
Browser testing no longer means attempting to make a website look the same in browsers of different capabilities or on devices with different size screens. It does mean ensuring that a person’s experience of a design should be appropriate to the capabilities of a browser or device.
We test our work in current versions of major desktop browsers including those made by Apple (Safari), Google (Chrome), Microsoft (Edge), Mozilla Firefox and Opera.
Mobile browser testing
Testing using popular smaller screen devices is essential in ensuring that a person’s experience of a design is appropriate to the capabilities of the device they’re using. We test our designs in:
iOS: Safari and Google Chrome
Android: Google Chrome
We won’t test in Opera Mini/Mobile, specific Android devices, or other mobile browsers.
Final Product Testing
Client agrees that Client shall test the functionality of any website created by Cymatics, Inc to ensure that it is working pursuant to the Client’s needs before it is used for Client’s business or other related purposes. If Client discovers that any website is not functioning properly, Client shall immediately notify Cymatics, Inc in writing. Client agrees that if Client fails to test the functionality of any website and suffers damages as a result, Client shall hold Cymatics, Inc harmless from any and all damages of any kind suffered by Client.
Changes and Revisions
We know from plenty of experience that fixed-price contracts are rarely beneficial to you, as they often limit you to your first idea about how something should look, or how it might work. We don’t want to limit either your options or your opportunities to change your mind.
The estimate/quotation prices at the beginning of this agreement/contract are based on the amount of work we estimate we’ll need to accomplish everything that you have told us you want to achieve. If you do want to change your mind, add extra pages or templates or even add new functionality, that won’t be a problem. However, you will be charged accordingly and these additional costs will need to be agreed to before the extra work commences.
We have supplied an estimated Change Budget amount for each Section of the website build. It is an estimate and will only be used upon approval of any change requests. You, as the (“Client”)l has complete control if any funds of the Change Budget are used. If any of the Change Budget isn’t used, it will rollover into the next section of the build with it’s own set limit. Limits of the Change Budget can be adjusted by approval of the (“Client”). If a change request is large enough, it may be deemed to be its own Section that will need to be budgeted for cost and time.
This additional work will affect deadlines and they will be moved accordingly. We’ll be up front about all of this if and when it happens to make sure we’re all on the same page before proceeding. We may also ask you to put requests in writing so we can keep track of changes.
If the nature or functions of the project change significantly throughout the process, we reserve the right to deem the current project canceled. At this point you will pay us in full for all the work we have done and may commission us to complete the new project based on the new requirements. This will require a new agreement/contract.
If requested content hasn't been supplied within 21 days of requested time, the project will be billed in full and placed on "hold" until the content is completed. Any project on "hold" will have to be rescheduled into development once the hold has been lifted and could result in further delays due to the developers current workload.
In the event of any such delay by Client, Client agrees to be responsible for Cymatics, Inc’s fees and any additional costs incurred for any additional work required to be done by Cymatics, Inc. All additional work necessitated by Client’s delay shall be billed at the rate of $150 per hour. Client acknowledges that Cymatics, Inc. is not responsible and agrees to hold Cymatics, Inc. harmless for any delays or damages resulting from Client’s failure to make such submissions in a timely manner.
Meetings and Approvals
Client agrees to meet with Cymatics, Inc. as required by Cymatics, Inc. until the project is completed. Milestone approvals and sign-offs must be responded to within dates specified by Cymatics, Inc. A non-response by Client to a requested approval or sign-off shall constitute that milestone or sign-off is approved by Client.
Assignment of Project
Cymatics, Inc. reserves the right to assign subcontractors to this project. At the sole discretion of Cymatics, Inc., work produced by subcontractors may be protected under signed confidentiality agreements and shall remain the property of Cymatics, Inc.
Technical Support
You may already have professional website hosting, you might even manage that hosting in-house; if that’s the case, great. If you don’t manage your own website hosting, or your current hosting environment does not support the solution we are providing, we can refer you to one of our preferred, third-party hosting providers.
If you decide to host your website outside of Cymatics, We do not offer or include technical support for website hosting, email or other services relating to website hosting. Cymatics, Inc is NOT responsible for any lost emails in the transfer of your website/domain to new hosting.
Search engine optimization (SEO)
We don’t guarantee improvements to your website’s search engine ranking, but the pages that we develop are accessible to search engines.
Privacy Policy, GDPR, all US states or any international privacy compliance
Privacy and protecting your website’s visitors' privacy has become a hot topic of late, beginning with the EU GDPR. Now several US State governmental agencies are also implementing their own set of rules. It is good practice that your business has a privacy policy. It informs visitors of what data you might be collecting from them. If you have a Contact Form, that is data being collected. If you are implementing any analytics from Google or other tracking software; such as Facebook Pixel, you, the website owner, are liable to inform any visitor to your website that you are tracking their movements on your website. You are required to inform visitors what data is being collected, how you are using that data, how long you retain that data. Visitors must have a way of requesting to see all of the data you have on them and if visitors request their data to be deleted from your database, you must have a system in place to handle said requests. For GDPR, this is a rule for any and all visitors who are members (citizens) of the European Union. Even if your business is incorporated here in the United States, if an EU citizen is visiting your site, even if they are residing in the United States or elsewhere in the world, you must have an opt-in banner when the site loads. You may have already seen several of your favorite websites incorporate this banner. The Privacy Policy will have a specific way for visitors to contact you regarding their data. Your legal company name, website name/domain, physical address, phone number and email must be displayed clearly. The link to the Privacy Policy must be shown on your website in an easy to find location and easily read (meaning not coded to blend in with the background color to hide the link). Cymatics, Inc strives to keep ourselves and our clients informed of the latest issues. Cymatics, Inc, it’s owners, employees, subcontractors are NOT attorneys. To fully protect your company it is recommended that you consult an attorney regarding writing your Privacy Policy. We understand that some clients don’t have a budget to hire an attorney. There are services that will auto-generate a Privacy Policy for your website. The one we recommend is Termageddon. They are a paid service (small, recurring monthly fee) that will keep your Privacy Policy up to date as the laws about Privacy Policies are being written across the various states of the US. California just enacted their version of GDPR and several states are in the process. Your time is valuable and as most of us aren’t attorney’s, it’s best to either hire an attorney and/or go with a service such as Termageddon.
By signing this agreement/contract, you have been informed of the seriousness of a Privacy Policy. If you decide not to have a Privacy Policy, signing this agreement/contract Cymatics is NOT liable for any fees or damages if you and your business is found at fault by any governing agencies across the EU, UK, Canada, US, and elsewhere around the globe as privacy is being taken much more seriously. These rules are meant to protect consumers. Cymatics cannot or will not be held liable if you fail to create a Privacy Policy and enact a system to handle the data your website might be collecting. Again, even if you just have a contact form...you must have a Privacy Policy.
ADA/WCAG Compliance
ADA/WCAG refers to the American Disabilities Act. This law is governed by the US. Which states that your place of business must be compliant towards persons with disabilities. Disabilities include physical, cognitive, seizure, etc conditions. We, Cymatics, Inc., make the very best effort to make sure that your website is compliant to at least the AA standard. This incorporates high contrast between colors of your fonts and background images. That any video doesn’t automatically play, video frame rate is of such speed that won’t induce a seizure from any of your visitors who may suffer such conditions. That the website is able to be read by screen readers and if visitors can’t use a mouse, that keyboarding is available. We make every effort and explain to you why we may change a design element or content. We think you’d agree that you don’t want to discourage anyone from informing, educating, selling your products or services from anyone. However, we are not experts in this field. It is new to the web/internet. Domino’s Pizza challenged the ADA compliance requirements when sued by a visually-impaired visitor to their website. Domino’s lost. They were required to redesign their website, pay all attorney and court fees, and pay all fines. The WCAG is still working out the rules themselves. It’s a bit of the wild west in this regard. And less scrupulous law firms/attorneys are taking advantage of the situation. Sending businesses letters threatening them with legal action because their website is not compliant for their client’s disability. For a small business, receiving such a notice is jarring and the lawyers are hoping that you will settle just to make them go away. While designing and coding your website we make every effort to be compliant. However, if you insist on certain color choices or elements that may be difficult for people with disabilities to navigate and use your website, we, Cymatics, Inc., will NOT be liable for any damages, fees, lost business, lost reputation, court fees. And if you are required to redesign/build your website, it will be considered a new project and a new contract will be drawn up. All design elements will be reviewed and be changed to be in compliance with the ADA. If you insist on keeping your design that is in direct conflict to our standards and with the ADA, the contract will be canceled and Cymatics, Inc. will be paid for all work completed thus far. You will be free to go and create the website you want how you want it done through another agency. All design elements and code that was built prior to the cancellation of the contract is the sole ownership of Cymatics, Inc. and cannot be used with the agency you go to. In essence, you will be starting from scratch. You retain only the content (text, video, images, graphic elements) that you created and own. All other content (text, video, images, graphic elements) that is created by Cymatics, Inc. is owned by Cymatics Inc. And we reserve the right to use said content for any future projects. We do recommend adding an Accessibility Statement on your website that will state the mission of the website, the compliance goals, work being done to achieve these goals, level of goal for accessibility, and a phone number or email for persons to reach you if they have problems with navigating the website.
Legal
We’ll carry out our work in accordance with good industry practice and at the standard expected from a suitably qualified person with relevant experience. That said, we can’t guarantee that the functions contained in any web page templates or in a completed website will always be error-free and so we shall not be liable to you or any third party for damages, including lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate this website and any other web pages, even if you have advised us of the possibilities of such damages, even if you’ve advised us of them. In any event, you agree we will not be responsible for any damages of any kind in excess of the consideration you pay to us under this contract.
Your liability to us will also be limited to the amount of fees payable under this agreement/contract and you will not be liable to us or any third-party for damages, including lost profits, lost savings or other incidental, consequential or special damages, even if we’ve advised you of them.
Neither vendor nor customer shall be liable to the other party for any indirect, incidental, consequential, reliance or special damage, including, without limitation, damages for lost profits, regardless of the form or action whether in contract, indemnity, warranty, strict liability or tort even if advised of the possibility of such damages.
Client acknowledges and agrees that Cymatics, Inc. has no control of changing external economic and social factors that can affect Client’s business, and that any of the services and products that Cymatics, Inc. provides cannot and will not guarantee that Client’s sales, revenue, income, or business activity will increase. Client further acknowledges and agrees that Cymatics, Inc. has made no representations or guarantees that any Services provided by Cymatics, Inc. will improve Client’s ranking or placement on any internet search engine.
Attorney’s Fees, Costs, Venue and Governing Law
In the event any dispute arising between the Parties results in the filing of a lawsuit, the prevailing party, as determined by a Court of competent jurisdiction, shall be entitled to an award of its reasonable attorney's fees and taxable costs. Venue for all disputes related to or arising out of this Agreement is proper only in Cook County, Illinois. This Agreement shall be governed by the laws of the State of Illinois.
If any provision of this agreement/contract shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement/contract and shall not affect the validity and enforceability of any remaining provisions.
Copyrights
You guarantee to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide us for inclusion in the website are either owned by your good selves, or that you have permission to use them.
When we receive your final payment, copyright is automatically assigned as follows:
You own the graphics and other visual elements that we create for you for this project.
We’ll give you a copy of all files and you should store them really safely as we are not required to keep them or provide any native source files we used to make them. You are not allowed to sell any native source files that are used to create/build your website to any third party or marketplace to then be sold.
You also own text content, photographs and other data you provided, unless someone else owns them. We own the markup, CSS and other code and we license it to you for use only on this project. Payment of license is stated in the cost estimate of the scope above. On final payment, you own outright the copy of the source code files that make your website. There are no ongoing licensing fees for these files once the project is completed.
Intellectual property rights
Just to be clear, “Intellectual property rights” means all patents, rights to inventions, copyright (including rights in software) and related rights, trademarks, service marks, get up and trade names, internet domain names, rights to goodwill or to sue for passing off, rights in designs, database rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world.
Displaying our work
We love to show off our work and share what we have learned with other people, so we reserve the right to display and link to your completed project as part of our portfolio and to write about the project on websites, in magazine articles and in books about web design.
Payments
We are sure you understand how important it is as a small business that you pay the invoices that we send you promptly.
We issue invoices electronically as a PDF. Our payment terms are 15 days from the date of invoice by BACS or SWIFT (for international clients) payments system or by physical check, or by credit card payment (you can decide how you’d like to pay). All prices are quoted in USD and payments will be made at the equivalent conversion rate at the date the transfer is made.
Payments can be mailed to:
Cymatics, Inc.
PO Box 448
Naperville, IL. 60566-0448
OR
Pay by Credit Card
Any ongoing monthly or recurring fees will be billed via Stripe where you will have entered your credit card information. A form will be emailed to you to submit your credit card information. The system will auto-renew at the end of your term.
You agree to pay all charges associated with international transfers of funds. We reserve the right to charge interest on all overdue debts at the rate of 5% per month or part of a month.
Note: If you are unable to supply all of the right content at this stage, it does not mean we have not done our job. Once the site has been tested and is ready to go live, either with your content or placeholder images and dummy text, we will issue the final invoice. Once the final invoice is paid we will hand over the keys and show you how to put your own content in once it’s ready. If the final invoice is not paid within the credit terms we have given you, we are under no obligation to keep the site on our testing server or continue with the project in any way.
Cancellation
Either Cymatics, Inc or Client may cancel this Agreement after the minimum term is met by providing written Notice of the intent to do so. In terms of Client’s cancellation, the notice of cancellation must specifically instruct Cymatics, Inc. to cease all further work. An early termination fee is required if term length is not met. Client will be liable for all work performed up to the date that the notice of cancellation is sent by or received by Cymatics, Inc. Any work which has not been previously billed by Cymatics, Inc shall be billed at the hourly rate of $150 per hour. Any such work together with work that has been previously been billed, and not as yet paid, shall be deducted from any outstanding deposits given by Client. In the event Client elects to cancel this Agreement after Cymatics, Inc has commenced work on the project, any deposits made by Client shall be deemed to be non-refundable.
Mediation
Before any lawsuit is filed, the Parties to this Agreement must engage in a total of four (4) hours of mediation unless the Parties agree in writing otherwise. If the mediator cannot be agreed upon by the Parties, then each Party will select one mediator and those mediators shall agree upon one mediator to preside over the matter. The presiding mediator’s fees shall be split equally between the Parties.
Transferability
The Client cannot transfer this contract to anyone else without Cymatics, Inc. permission. This contract stays in place and need not be renewed. If for some reason one part of this contract becomes invalid or unenforceable, the remaining parts of it remain in place. Although the language is simple, the intentions are serious and this contract is a legal document under exclusive jurisdiction of the courts of Cook County, Chicago, IL.