Eternia development & hosting agreement

(Terms of Service)

The following terms and conditions of use (the “Terms”) constitute an Agreement between you (the “Customer,” “User,” “You,” or “Your”) and Eternia Digital Dojo L.L.C. DBA Eternia, and its affiliates and subsidiaries (collectively, the “Company,” “our,” “us,” or “we”). These Terms govern your use of and access to the website, customer relationship management tool, and other marketing tools the Company provides (collectively the “Service”) for you detailed below and are a legally binding agreement between You and the Company.

Introduction

By accessing the website https://www.eterniadigital.com (collectively the “Site” or “Website”), submitting information to us or using the Service constitutes your Agreement to these Terms and you consent to the collection, use and disclosure of information as described in these Terms and our Privacy Policy which is incorporated into and forms a part of these Terms.

The Company provides a platform for development and hosting of websites. We reserve the right, acting in our sole discretion and at any time, to revise these Terms, including the Privacy Policy. It is your responsibility to ensure that You are aware of the current Terms when you access or use the Site or access or use of the Service.

We will notify you of any substantial changes via electronic mail to the email address the User signs up with. The Company is not responsible for notifications that are routed to a spam folder. The User is considered notified upon email delivery confirmation and continued use of the Services after any change to this Agreement constitutes your agreement to be bound by any such changes.

The terms of this Agreement shall govern the use of any new features that augment or enhance the current Services, including the release of new Company Services.

Terms of Our Web Development and Hosting Service

1. General Terms

  1. To use our Service, you must be eighteen (18) years or older and have the requisite power and authority to enter into these Terms. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws). You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by the Company.
  2. You understand that the technical processing and transmission of the Service, including content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You must not transmit any worms or viruses or any code of a destructive nature. You agree that You will not interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service.
  3. The Company may monitor, terminate or suspend Your Account at any time. The Company may immediately, and without prior notice, terminate Your ability to access the Service or portions thereof for any reason including, without limitation: (i) if You violate or otherwise fail to strictly comply with any term or provision of these Terms, (ii) if we have determined that Your use has created or potentially will create risk or legal exposure for the Company, or (iii) in response to requests by law enforcement or other government agencies.
  4. You acknowledge and agree that any termination or suspension of Your Account may be made by us in our sole discretion and that we shall not be liable to You or any third-party for any termination or suspension of Your Account or access to the Service.
  5. The Company may use third-party features and/or hosting partners to provide technology required to run the Service. You agree to indemnify, defend, and hold harmless the Company and its suppliers from any and all loss, cost, liability, and expense arising from or related to Your data, Your use of the Service, or Your violation of these terms.
  6. Due to the combination of resources required, development cost, or delivery timeframe desired, some customization requests are not possible. We cannot guarantee that there is a solution available for any given customization request.

2. Privacy Laws

  1. You acknowledge and agree that any personal information, emails, and/or customer data provided by You to the Company or data collected by You or collected through Your use of our Service, has been collected lawfully according to applicable privacy laws, including the General Data Protection Regulation (GDPR). We will not be held liable for any failures by You to follow privacy laws. We agree to utilize data we collect only for the purposes set forth in our Privacy Policy and we will fulfill our obligations to keep such data secure.

3. Eternia Website Payment Terms

  1. You agree to pay the Company an initial development fee (the “Initial Fee”), due immediately upon signing up, and a monthly hosting & service fee (the “Monthly Fee”) as dictated on the Website (depending on chosen products during or after signup), which is initiated immediately upon beginning development.
  2. IDX services are not included in the initial or ongoing fee and are considered a separate cost, if chosen as a product during or after signup. If IDX services are not offered by the Company to the Customer in writing during or after signup, or chosen by the Customer during such an offer, they are understood by the Customer as not included in their use of the Service.
  3. The Company Reserves the right to increase prices at any time with a thirty (30) day written notice.
  4. The Company shall submit the Invoice to the Customer for payment. Payment is due upon receipt. Any invoices not paid within ten (10) business days from receipt shall be considered past due and may be subject to late fees.
  5. The Company reserves the right to administer a finance charge of 2% per month or the maximum amount allowed by law on the unpaid amount of an invoice. A late fee may be charged on past due accounts. In the event the Company exercises its right to charge a late fee payments by the Customer will thereafter be applied first to accrued interest and then to the principal unpaid balance. The Customer shall also be liable for all attorney and collection fees arising from the Company’s efforts to collect any unpaid balance of the Customer’s account(s).
  6. The initial fee is 100% refundable if the Customer requests a refund prior to the commencement of work on the website and so long as the request for a refund is made within three (3) months from the time the purchase is made.
  7. The initial fee is considered non-refundable once work has commenced and the site has been provisioned. Any other fees incurred as a result of a work order or job requested by the Customer shall be non-refundable.
  8. All Customers whose hosting fees are current will receive ongoing services to their website in the form of updates, feature updates, or other, as such updates are released by the Company and its Partners. The Company reserves the right to determine the timing of any Scheduled Updates. Any work performed by the Company on the Customer website beyond the Scheduled Updates must be agreed to in writing, and shall be billed and invoiced at the agreed upon rate. The invoice is due upon the receipt.
  9. A rush order on special requests may be available, at the Company’s sole discretion, at the rate of 1.5x the agreed upon rate. Any special requests which must be completed within two (2) business days of the Customer request shall be considered rush requests, and may be subject to increased rates.
    The Company agrees to work with the Customer to identify any customization requests before work commences on a site, as well as work to explore alternatives in cases where a specific request is not available. In the event that a ‘custom’ workaround is available,
  10. The Company agrees to discuss implementation, development cost, and time frame for completion with the Customer to obtain approval before commencing work.
  11. The Customer agrees that they will not do any chargebacks, and if they do, this agreement may be presented to the financial institution as verification that the charge was correct and the charge was not appropriate. If the Customer has an issue with services or fees, the Customer is required to send an email to the address listed in 17.2.3 of this Agreement to further discuss the matter.

4. Term & Termination

  1. This Agreement shall be effective as of the date you place an order for Services, and shall remain in force until it is terminated. Termination upon a billing cycle, and even in the event of an immediate termination, the full monthly cycle will be billed.
  2. This Agreement may be terminated by either party immediately with written notice to the other.
  3. This Agreement shall terminate if either party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within twenty (20) days of receipt of the notice of breach.
  4. This Agreement may be terminated immediately by the Company:
    1. if the Customer fails to pay any fees hereunder;
    2. if the Customer fails to cooperate with the Company or hinders the Company’s ability to perform the Services hereunder;
    3. if the Customer includes in their website any adult material or material that is deemed illegal, immoral or improper in any jurisdiction;
      or
    4. if the Customer includes in their website any material that infringes the intellectual property of any third party.
    5. If the Customer uploads content whose purpose is spamming others.
    6. If the Customer sends or attempts to send any advertising or promotional material, including but not limited to spam, junk mail, chain mail or any similar material.

5. Service & Hosting Terms

  • Upon payment of the Initial Fee we shall set up and customize the website for the Customer as per specifications. After initial customization is complete and the site has been moved to the Customer’s primary domain, the Customer shall update and manage the content of their website through their administrative dashboard. The customized website shall only be hosted on our servers and cannot be transferred to a third party hosting provider. The Company does not support the installation of 3rd party plugins or products on its network. If the Customer wants to use 3rd party features they must install the 3rd party features on their own accord. The Company can provide options for embeddable third party scripts on the front end only and cannot guarantee the functionality.
  • For Custom designed websites, the Company agrees to work with the Customer through three (3) rounds of revisions without incurring additional fees. If the scope of the project changes, or work has to be ‘re-done’ (as in the case of a logo change, brokerage change, or in more general terms, a substantial modification to the original agreed upon scope of the project), the Company reserves the right to charge additional fees for labor incurred as a result. Refer to Appendix A and B for a full list of work that falls outside the scope of the Company’s site setup process and the schedule of labor rates.
  • We do not monitor the content of our Customer’s websites. However, you agree not to include in your customized website any content that infringes the intellectual property of anyone, including but not limited to copyrighted text, copyrighted images, and trademarks.
  • Hosting includes 5Gb (gigabytes) of storage space for text, documents and pictures. More storage may be requested for a fee. Uptime checks are permitted under the following conditions:
    1. Maximum of 1 uptime “check” request per 5 minutes, per site
    2. ALL uptime checks MUST check https://mydomain.org/am-i-up
    3. NO OTHER URLs are allowed to be checked
    4. All uptime checks that do not match these requirements will be throttled and/or blocked completely. Throttled checks will appear, incorrectly, as downtime in your uptime check
    5. Uptime checks and bots MUST NOT set a Cache-Control header to bypass cache
  • The Company will ensure 99% website uptime for a given month. Scheduled maintenance time of less than five hours each month will not be counted towards the downtime guarantee.
  • The Company does not provide email hosting solutions but will assist Customers to ensure existing email setups are configured and functional on the completed customized website. In the event that the Customer requests support from the Company to configure their emails on third-party servers, the Customer acknowledges that their email may go down for an unidentified period of time and agrees to hold the Company harmless for such events.
  • The Company shall maintain the right to display a link, including a linked image, to our websites, including but not limited to: https://www.eterniadigital.com
  • The Company may offer both its proprietary Eternia IDX and third-party IDX solutions. The choice of IDX solution will depend on MLS coverage and client needs, with terms specific to each outlined in Section 6

6. Internet Data Exchange (IDX) Terms

1. Section 6: Internet Data Exchange (IDX) Terms


Eternia IDX Integration:

  1. Client Responsibilities:
    • Compliance: The Company assists with maintaining compliance with MLS regulations; however, clients are ultimately responsible for ensuring their site remains compliant, especially after any modifications.
    • MLS Fees: Pass-through fees for certain MLSs are the client’s responsibility. Clients should verify up-to-date fee information with The Company.
    • Listing Imports: Clients using the “My Listings” tool with Eternia IDX must ensure that only their own listings are imported. Importing listings from other agents is prohibited and is the client’s responsibility.
  2. Data Source and Reliability:
    • Eternia IDX sources MLS data from HomeJunction, a third-party provider. The Company does not control the data’s uptime, accuracy, or completeness, and is not liable for any related issues.

Third-Party IDX Solutions:

  1. Client Responsibilities:
    • Clients opting for third-party IDX solutions, such as ShowcaseIDX, must comply with the terms and conditions of those providers.
    • The Company may recommend a third-party IDX if it better fits the client’s needs or if Eternia IDX does not cover the required MLS area.
    • Compliance and fees associated with third-party IDX solutions are the responsibility of the client.

7. DNS (Domain Name System) Terms

  1. The Company either uses Cloudflare or Quic.cloud (collectively “DNS Providers”), at company’s sole discretion, as DNS & proxy for protection against DDoS / hacking attacks by automated scanners.
  2. In order for the company to protect and preserve the integrity of its servers, it requires that the DNS for the Customers website be fully managed through one of the Company’s DNS Providers accounts.
  3. At its own discretion, The Company may choose to grant certain exceptions to this term, as detailed in Appendix C.

8. Disclaimer & Warranties

  1. The Company makes no representation or warranty that the Service or other information provided, regardless of its source, are accurate, complete, reliable, current or error-free. The Company disclaims all liability for any inaccuracy, error or incompleteness in the Service. The Service and any third-party software and services are provided “as is,” with no warranties whatsoever. The Company and such third parties expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, title, and non-infringement of proprietary rights and any warranties regarding the security, reliability, timeliness, and performance of the software or service and such third party software or services.
  2. You acknowledge that You will keep a backup copy of any content You upload and/or transmit through the Service and the Company will not be held liable should content be lost.
  3. You shall not upload or transmit through the Service any material which violates or infringes the rights of others, or which is threatening, abusive, defamatory, libelous, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, whose purpose is spamming others, contains injurious formulas, recipes, or instructions, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law.
  4. Any testimonials or examples shown through the Company’s Website are only examples of what may be possible. There can be no assurance as to any particular outcome based on the use of the Service. You acknowledge that the Company has not and does not make any representations as to the future result that may be derived as a consequence of use of the Service.

9. Intellectual Property Rights

  1. The Company Website shall only be hosted within our Company’s servers. The customer is not entitled to transfer a website to another hosting provider. The Company shall retain all intellectual property rights in the website, including all copyrights, under all circumstances including the termination of this Agreement by either party. You will not copy, imitate, modify, alter, amend or use any of the intellectual property without our prior written consent. Nothing in this Agreement shall transfer ownership of or rights to any intellectual property of the Company to the User, nor grant any right or license other than those stated in this Agreement.
  2. All data, text and images uploaded by the Customer onto the website shall remain the property of the Customer. You agree that any and all content You upload and/or transmit through the Service is lawfully owned by You. You agree that You own the copyright or have the proper permissions for all content and images You upload and/or transmit through the Service. The Company will not be held liable for any copyright claims against your content. If you believe that material available on our Site infringes on your copyright(s), please notify us by submitting a Digital Millennium Copyright Act (DMCA) notice. After we receive a valid and complete notice, we will investigate, remove the material, and make a good faith attempt to contact the user who uploaded the material, via email.

10. Disclaimer of Warranties

  1. The Company warrants that its Services shall be performed by personnel possessing competency consistent with applicable industry standards. No other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Furthermore, no guarantee is made as to the efficacy or value of any website, customized website or hosting service.
  2. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY THE COMPANY CONCERNING THE SERVICES AND RELATED WORK PRODUCT. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR OTHERWISE. THE COMPANY DOES NOT GUARANTEE CUSTOMER’S WEBSITE PLACEMENT ON SEARCH ENGINES.
  3. THE COMPANY ONLY PROVIDES A SERVICE TO ITS CUSTOMERS. ALL SOFTWARE, INFORMATION, CONTENT, MATERIAL, FILE, DATABASE, ARCHIVE, TECHNIQUE, PROGRAMS OR ANY OTHER TOOL OR DATA DEVELOPED AND USED FOR THE CREATION AND/OR USAGE OF THE CUSTOMIZED WEBSITE SERVICES AND HOSTING SERVICE OR SERVICES BELONGS SOLELY TO THE COMPANY, AND IT SHALL NOT BE TRANSFERRED TO CUSTOMERS. CUSTOMERS CAN ONLY UTILIZE THE SERVICES OF THE COMPANY IN THE COMPANY’S SERVERS AND WITHIN THE COMPANY’S INFRASTRUCTURE.

11. Limitation of Liability

  • YOU AGREE THAT UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR ANY OTHER DAMAGES ARISING OUT OF YOUR USE OF THE SITE OR SERVICES. ADDITIONALLY, Eternia Digital Dojo L.L.C. DBA Eternia.COM, IS NOT LIABLE FOR DAMAGES IN CONNECTION WITH (I) ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, DENIAL OF SERVICE, ATTACK, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE; (II) LOSS OF REVENUE, ANTICIPATED PROFITS, BUSINESS, SAVINGS, GOODWILL OR DATA; AND (III) THIRD PARTY THEFT OF, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF YOUR INFORMATION OR PROPERTY, REGARDLESS OF OUR NEGLIGENCE, GROSS NEGLIGENCE, FAILURE OF AN ESSENTIAL PURPOSE AND WHETHER SUCH LIABILITY ARISES IN NEGLIGENCE, CONTRACT, TORT, OR ANY OTHER THEORY OF LEGAL LIABILITY. THE FOREGOING APPLIES EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN THE DAMAGES. IN THOSE STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR THE DAMAGES, OUR LIABILITY IS LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE COMPANY CUMULATIVE LIABILITY TO YOU EXCEED THE TOTAL FEES YOU PAID TO US IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION.

12. Third Party Resources

  1. The Site and/or Service may contain links to third-party websites and resources. You acknowledge and agree that we are not responsible or liable for the availability, accuracy, content or policies of third party websites or resources. Links to such websites or resources do not imply any endorsement by or affiliation with the Company. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

13. Release of Claims

  1. In no event will the Company be liable to any party for any type of direct, indirect, special, incidental, or consequential damages for any use of or reliance on our Service. You hereby release the Company from any and all claims including those related to personal or business interruptions, misapplication or information, or any other loss, condition, or issue.

14. Indemnification

  1. The Customer shall indemnify, defend, and hold harmless the Company against any liability, damage, loss, or expense (including reasonable attorneys fees and expenses of litigation) incurred by or imposed upon any of the Company in connection with any first, second and/or third party claims, suits, actions, demands or judgments (“Claims”) under any theory of liability (including without limitation actions in the form of tort, warranty, or strict liability) resulting from or arising out of the practice or use of any of the Company Technology or Joint Technology (or any part thereof) by the Company, its Affiliates or any of their Sublicensees, or concerning any product, process, or service that is made, used, or sold pursuant to any right or license granted by the Company under this Agreement.

15. Governing Law & Dispute Resolution

Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, without regard to its conflict of law principles.

Dispute Resolution: Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, shall be resolved through the following process:

  1. Good Faith Negotiation: The parties shall first attempt in good faith to resolve any dispute by negotiation and consultation between themselves. If the dispute is not resolved within thirty (30) days from the date of notice of such dispute, either party may initiate mediation as provided herein.
  2. Mediation: If the dispute cannot be settled through negotiation, the parties agree to try in good faith to settle the dispute by mediation administered by a mediator in Washington, mutually agreed upon by the parties. Each party shall bear its own costs and expenses and an equal share of the mediator’s and administrative fees.
  3. Court Litigation: If the dispute is not resolved within thirty (30) days after the commencement of mediation, the dispute shall be finally resolved by litigation in the state and federal courts located in the State of Washington. The parties hereby irrevocably consent to the jurisdiction of these courts and agree that such courts shall be the exclusive venue for any such proceedings.
  4. Legal Fees: The prevailing party in any dispute arising out of this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing party.
  5. Class Action Waiver: The parties agree that any claims or disputes shall be brought on an individual basis only, and not as a plaintiff or class member in any purported class or representative action.

16. Assignment

  • These Terms bind and inure to the benefit of the parties’ successors and assigns. These Terms are not assignable, delegable or otherwise transferable by You.
  • Any transfer, assignment or delegation by you is invalid. The Company reserves the right to transfer this Agreement without written permission from the Customer.

17. Miscellaneous

17.1. – ADA Compliance

  • The Customer acknowledges and agrees to assume any and all responsibility for ADA compliance under the Americans with Disabilities Act of 1990.
  • The Company offers an ADA compliance add-on to provide the Customer with an ADA compliance solution. The add-on may be a third-party solution, at the Company’s sole discretion. The Company does its best to keep the tool up to date with changing laws and regulations, or to apply similar available updates from third-party solutions. However, the add-on is not a substitute for legal advice or a guarantee regarding ADA legal compliance.
  • It is the sole responsibility of the Customer to ensure compliance of ADA regulations. The Customer agrees to hold the Company harmless of any liability, action, claims, suits or any other issue arising from ADA claims or violations.

18. Entire Agreement; Waiver; Headings

This Agreement constitutes the entire agreement between you and the Company pertaining to the Site and Service and supersedes all prior and contemporaneous agreements, representations, and understandings between us. No waiver of any of the provisions of this Agreement by the Company shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Company. The subject headings of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.

If you have any questions or concerns regarding these Terms, please email: admin@eterniaweb.com

19. Notice

Notices to the Company under this Agreement should be provided to the following addresses:

Legal Notices:

Eternia Digital Dojo, L.L.C.
1324 Johnson Rd
Centralia, WA 98531
United States

Mailing Address for Correspondence:

1324 Johnson Rd
Centralia, WA 98531
United States

Email correspondence should be sent to legal@eterniaweb.com, accompanied by a hard copy sent to the US mailing address for correspondence.

Appendix A

Out of Scope Work

The following is a list of work related tasks that is hereto defined as ‘outside the scope’ of an Eternia site setup.

Site Imports or Migrations:

If the client requires that an existing site or content from an existing site be migrated into the Eternia website being created – the Customer and Company must discuss and formulate a strategy beforehand. Some site migrations are more complicated than others. For those reasons every situation shall be treated as unique.

301 Redirects:

301 Redirects are considered Google ‘best practice’ when moving from one website host to another, and can be implemented to preserve most of the previous sites SEO while making the transition.

Extra Pages / Widgets / Sidebars / Custom Page Formatting – If the Client requires additional ‘specialty’ pages to be created and customized within the site – the Company will generally try to accommodate, however reserves the right to quote additional fees for high volume requests.

Appendix B

Rates

  1. General Labor Rate: This includes data entry and general labor that does not require custom design or programming.
    $100.00 per hour
  2. Landing Page Customization / Interior Page Design: The Company’s general ‘design’ rate includes landing page customization.
    $150.00 per hour

Appendix C

DNS Exceptions

Under certain circumstances, the Company may allow for the Customer to manage the DNS for their website through their own Cloudflare account.

If such an exception is made, the Company requires the Customer to provide Cloudflare API access via API Token with appropriate permissions. This work is subject to quote.