Comentum Terms of Service Agreement
Version 4.0 - last updated March 13, 2019
About These Terms
This document establishes the Terms of Service ("TOS") for all of Comentum Products and/or Services ("Services") between you Client and Comentum Corp ("Comentum").
By using and/or subscribing to any of Comentum Products and/or Services, you are agreeing to Comentum's Terms of Service ("TOS"), which supersedes all of your previous representations, understandings or agreements with Comentum.
If you are entering into this Agreement on behalf of an entity, such as the company you work for, you represent to Comentum that you have the legal authority to bind that entity to Comentum's Terms of Service agreement ("TOS").
In this agreement, Client, You, Your, refers to any person or entity who uses or subscribes to Comentum Services. Comentum, We, Us, refers to Comentum Corporation.
Please print this TOS and keep it for your records.
Comentum Services are categorized into the following categories:
- Design, development and programming services, here refers to Development Services
- Website hosting, dedicated and managed server hosting services here refers to Hosting Services
Comentum's Hourly Rate and Rate for Subscription Services
Comentum has different Hourly Rates based on different request types and different factors stated below:
- Comentum's Urgent Support Hourly Rate is based on requests from Client with requirements of receiving the highest priority on their task requests.
- Comentum's Standard Rate is based on standard requests that Client is okay with first come first served arrangements.
- Discounted Hourly Rate is a specific hourly rate that is negotiated between Client and Comentum based on various factors and this discounted hourly rate is only specified in the Client - Comentum Description of Work and/or Invoices.
Comentum's different Hourly Rates are included in one or more of the following materials and/or agreements:
- Comentum's Description of Work for a project
- Comentum's Support Plan Agreement
- Comentum's Online Project Management System
If Client has an existing project development with Comentum, Comentum will keep its Hourly Rate intact for the existing project; however, Comentum may change its Hourly Rate for Client's future projects.
If Client subscribes to Comentum's Support / Maintenance Plan, Comentum may change its Hourly Rate by providing a 60 days notice via email.
Project Hours, Project Charge(s) / Project Cost
Comentum breaks down Client's project into the following service categories and assigns estimated hours that are required to complete each service categories:
Design and Development Services
Comentum evaluates Client's project Description of Work and based on that evaluation, Comentum estimates the number of hours which are required to complete the design and development part of Client's project.
Application Testing Services and Fixing Application Bugs
Comentum comes up with an estimated number of hours for Application Testing depending on the Application's complexity. By default, Comentum assumes that Client will be spending an equal number of hours that Comentum spends to test the application. This arrangement saves Client money. Client can request for Comentum to spend less or more hours on Application Testing which in turn increases or decreases the cost of Application Testing.
If Client needs Deployment Services, Comentum can provide an estimated number of hours for Deployment Services based on the requirements and complexity of hosting / cloud services which is required.
Deployment Services includes one or more of the following service items:
- Setting up and installing the Application on Hosting Server and/or Cloud.
- Purchasing and installing SSL Certificate for the Client.
- Submitting the app to App Stores (Apple iTunes, Google Play, etc.).
Communications / Consultation
Comentum allocates a certain number of hours that is mutually agreed by Comentum and Client to Communications / Consultation. If Client goes over the Communications / Consultation hours that is allocated to Client and stated in the Description of Work, Client will be billed hourly based on Comentum's hourly rate for the additional Communications / Consultation hours that Comentum's team have spent on the project beyond the project agreement.
- Revisions / Work Requests beyond Description of Work
Comentum allocates a certain number of hours that is mutually agreed by Comentum and Client to revisions and Client's work requests beyond Description of Work. Client will be billed hourly based on Comentum's hourly rate for the additional revision(s) work and/or work request(s) by Client outside the project's Description of Work.
If Client does not provide enough detail in writing about a feature that is part of the project and/or a task, Comentum will try to implement such feature based on Comentum's team judgement and understanding on how such feature should be implemented. Once that feature is implemented by Comentum, if Client requests to change the already implemented feature, any work to make changes to the already implemented feature is considered Revisions and will be charged on an hourly basis.
Comentum adds up the above items estimated hours and allocated hours to come up with a Total Estimated Hours to complete the development of Client's project.
Comentum comes up with Client's total project cost by multiplying the Total Estimated Hours by Comentum's Hourly Rate.
Project / Task and Percentage of Completion
A Project consists of multiple tasks based on the Description of Work and/or task requests.
The Project's Percentage of Completion at any given date is based on both parties going over the project's progress, comparing it against the Description of Work and/or tasks, and estimating the project's progress percentage.
The Project Completion Date is the date that the Project's Percentage of Completion reaches 100% and/or the application has deployed to the live environment where the application is accessible by the application's users, whichever date is the earliest date.
When Client submits task requests to Comentum one task at a time, the Task Completion Date is the date that Comentum completes the task and informs Client that the task is complete and ready for testing.
Installment Invoices and Change-Order Invoices
Client is billed using Installment invoices which are created when Comentum's team reach certain Project's Percentage of Completion on Client's project.
The installment invoices and the related Percentage of Completions are specified in the Description of Work.
Regarding the billing of project's change order items, Comentum provides a set number of hours ("Bucket of Hours") for Communications / Consultation and Revisions / Work Requests, which are listed in the Description of Work. If Client uses up and goes beyond the Bucket of Hours that are assigned to Client's project Communications / Consultation and Client's project Revisions / Work Requests beyond Description of Work, Client will be billed hourly based on Comentum's hourly rate for the additional hours over the Bucket of Hours that are assigned to Client's project Communications / Consultation and Client's project Revisions / Work Requests beyond the Description of Work.
Project Maintenance / Support Plan
After project's completion, Comentum offers a Support Plan option for Client's project Support and Maintenance, contingent on Comentum's development team's availability.
Comentum provides Support Plan services based on hourly, billed at Comentum's Hourly Rate, contingent on Client's account being in good standing regarding payment and Comentum's development team's availability.
When Client subscribes to a Support Plan, the hours that the Client has purchased (Client's Bucket of Hours) will be added to the Client's account. Then, Client can submit tasks to Comentum via Comentum PM System (preferred) or via email; Comentum's team will work on the task and log their hours on the task, which deducts the hours that the team has worked on the task from Client's Bucket of Hours. Client can login to Comentum's PM System and review the tasks, and the number of hours that have been spent on any task at any given date by Comentum's team, and the number of Support Plan hours remaining for Client's account.
Client and Comentum mutually agree on one of the following Support Plan services with the following listed terms:
- Weekly or Monthly Support Plans:
Client subscribes to Comentum's Support Plan based on Comentum and Client mutually agreeing to a start date and an end date and mutually agreeing to the number of Support Hours per week or per month.
If there is no end date set, either party can cancel the Weekly Support Plan by giving one week notice in writing, or the Monthly Support Plan by giving one month notice in writing.
Comentum allocates the Support Plan hours to Client's account.
Comentum guarantees the availability of the Support Plan Hours that Client is subscribed to, contingent on Client not holding any past due invoices with Comentum, and Client submits tasks in writing with proper notice prior to the end of each Support Plan period. (Proper notice of Task Submission depends on many factors such as whether the Support Plan is weekly or monthly and the number of Support Plan hours and the tasks' requirements and other factors outside Comentum's control, so we recommend Client to contact Comentum to get information on proper notice based on each situation.)
The Weekly Support Plan hours will be reset at the end of each week and the Monthly Support Plan hours will be reset at the end of each month. (There are no roll over Support Plan hours because Comentum allocates those hours to Client.)
No refund is provided on unused hours
- Prepaid Support Plan:
Client purchases a set number of Support Plan hours (10 hours minimum) at Comentum's Standard Hourly Rate.
Although Comentum does its best to complete Client's task as soon as possible, Prepaid Support Plan is based on first come first served.
The Prepaid Support Plan hours purchased are valid for a year from the date of Client's purchase.
No refund is provided on unused hours hours are valid for one year.
- Urgent Support Requests:
Client purchases a minimum of 3 hours at Comentum's Urgent Support Hourly Rate.
Urgent Support Requests will be receiving the highest possible priority.
No refund Is provided on unused hours hours are valid for one year.
There are many technologies available and there are many ways to build a Web Application and/or a Mobile App and/or host an Application on a server, and Comentum does not have enough resources to have all knowledge of all available technologies and all methodologies; therefore, Comentum does not promise that its consultation services will be suited for Client's project.
Selection of Technologies and Level of Services
There are many different techniques and available technologies that can be used to design, develop and host Applications; additionally, there are different levels of development services and different levels of hosting services that are available for building, maintaining and hosting Application projects, for example:
There are different methodologies, development technologies, development platforms, programming languages, programming frameworks, open source and/or commercial software programming technologies that are available and can be used to build a mobile app or a web application, both front-end and back-end (server-side).
There are different techniques and programming logic that can be used to build Applications.
There are different technologies and different levels of hosting available for hosting an Application for example: Dedicated Server, Dedicated Server - Managed, Dedicated Server - Managed Security, Cloud Hosting, Shared Hosting, Redundant Hosting, etc.
There are different levels of Application development, for example: some applications will require an extra layer of security, some applications will require scalability based on a certain number of users access, etc.
Comentum provides development services using the programming techniques and some of the available technologies based on its team's experience with such techniques and technologies.
Before starting an Application project, both Client and Comentum will mutually agree in writing about the technologies which will be used in Client's Application and the level of Development and/or Hosting Services which will be provided for Client's Application project. Comentum only provides Development Services and/or Hosting Services based on the list of technologies and the level of Development and Hosting Services that both parties mutually agreed to in writing and/or based on whether Client is paying for the technologies and the level of Development Services and Hosting Services; for example:
If both parties agreed to Comentum's hosting service: Dedicated Server - Managed and/or Client only pays for Dedicated Server - Managed, and/or there is no mention of Dedicated Server - Managed Security in any of Client Comentum written agreements, Comentum will only provide hosting services for Dedicated Server - Managed Hosting service and Comentum will not provide additional level of services such as Managed Security and/or redundant hosting environment for minimizing downtime, etc.
If both parties agreed to a standard Application Development and/or Client only pays for a standard Application Development and/or there is no mention of additional level of Application security or additional level of Application scalability in any of Client Comentum written agreements, Comentum will only provide standard Application Development.
It is beyond Comentum's available resources to have knowledge of all available programming techniques, hosting techniques and available technologies; therefore Comentum does not promise that the techniques and/or technologies that would be used to build, maintain and host Client's Application are going to be best suited for Client's Application project and/or are going to meet Client's Application project requirements; therefore, Comentum recommends that Client does its own research and/or hire an IT consultant in order to select technologies that are going to be best suited for Client's project and also evaluate Comentum's techniques that are going to be used before proceeding to hire Comentum.
Comentum usually assigns primary programmer(s) to Client's project. Comentum's arrangement with its programmers are At Will meaning its programmers can depart from Comentum at any time.
In order for Comentum to promise to meet a timeline, Comentum will also need to allocate to the project additional programmers (reserved programmers) that will need to keep themselves familiar with the project, so in the event the project's primary programmer(s) become unavailable, the reserved programmer(s) can jump into the project. This setup of having additional programmers on the project can become very costly, so unless Comentum and Client have an arrangement in writing for a guaranteed timeline, Comentum will not promise to meet Client's timeline.
Past Due Account(s)
When a Client's account becomes past due, Comentum will provide an additional 15 days ("Grace Period") for Client to make the payment for past due invoices. Once the Client's account's past due status goes beyond the 15 days grace period, Comentum may stop all the work and/or services, and Comentum may re-allocate its developers that were assigned to Client's project to another project; therefore Comentum will not promise development services availability for the Client whose account becomes past due and stayed past due beyond the 15 days Grace Period.
If Client is using Comentum's Hosting Services, after Client's account becomes past due and stayed past due beyond the Grace Period, Comentum may delete the website / web application and/or data / databases from the Hosting Server and Client may not be able to retrieve and/or get access to its website and/or data / databases.
Since Comentum's services are provided based on high labor cost, Comentum will not issue any refund(s) to Client for the hours that have been spent and/or the work that has been completed on Client's project and/or tasks.
Warranty, Bug Fixes, Application Issues, Application Updates / Patches
Here we refer to all Application Bugs and/or Application Errors and/or other Application Issues as "Application Issues".
Comentum will provide the following Warranty Services based on the following Warranty Periods:
For the project based services which include multiple tasks, Comentum will provide a 90 days Warranty Period from the Project's Completion Date.
For Project Maintenance, Revisions and/or Support, since Client has the opportunity to review each task, Comentum will provide a 7 days Warranty Period from the date that the corresponding task is completed and Comentum has informed the Client that the corresponding task is completed.
Although Comentum tests and reviews the application and addresses the application issues during the development, Comentum does not promise that all application's issues are detected and addressed, and since Client knows the project well, in order to find and fix all application issues, it is necessary for Client to also review, test and retest the application and/or completed work during the development and/or during the Warranty Period and inform Comentum about any application bugs.
Comentum will fix Client's application issues at no cost based on the following conditions:
Client submitting application issues to Comentum in writing within the Warranty Period.
Client does not hold any past due invoices with Comentum.
Comentum is not obligated to fix Client's application issues under the following situations; however, Client can subscribe to Comentum's Support Plan which is contingent on Comentum's programming availability, for addressing below application issues:
Client did not submit application issues to Comentum in writing within the Warranty Period.
The application issues that are reported to Comentum are part of a third party and/or open source application framework or platform.
Client and/or any third party made change(s) to the application code.
Client acknowledges that Client's application is required to be continuously maintained and updated in order to operate correctly and keep up with the latest security and changing technology.
Deployment, Code Delivery, Termination / End of Project Development
Comentum will deliver the completed code to Client by SFTP and/or an online file sharing system, after Client pays for the completed work.
If the Description of Work includes Deployment, Comentum will deploy the application to a live server or live environment based on the deployment specifications that are stated in the Description of Work.
Although both parties should do their best to complete the project, because Comentum allocates developers to Client's project and turns down other projects and Client has made business plans for the project completion, both parties understand that there may be unforeseen circumstances imposed on either party that can cause one party the need to terminate the project; therefore, either party can terminate the project at anytime by providing a termination notice in writing via email to the other party without having any penalty or liability. The Termination Date is established from the day that the termination notice is emailed by either party.
In the event of project termination: if Client has paid Comentum more than the Cost of Development for the project at the termination date ("Overpayment"), Comentum will issue Client a refund for the Overpayment amount, if Client has paid Comentum less than the Cost of Development for the project at the termination date ("Underpayment"), Client will owe Comentum for the Underpayment amount.
If Comentum terminates the project, and Client does not have any past due invoices, Comentum will provide five hours of complementary work and/or consultation by providing project development information to the new developer and/or deliver the completed code.
If Client terminates the project, Comentum will charge hourly based on Client purchasing Support Hours (Please see Comentum's Support Plan) for any work and/or consultation for providing project development information to the new developer and/or deliver the completed code.
Comentum will not provide development / programming training to the third party developer(s).
Licensing and Ownership of Code
Comentum will build and/or make changes and/or make updates to Client's application's code using the programming languages and/or development frameworks and/or technology platforms that are specified in the Description of Work and/or the same programming languages and/or technologies that are existing on Client's application based on work orders and/or tasks that are submitted to Comentum in writing, contingent to Client's payments for the work request(s).
Comentum Libraries are collections of functions, subroutines, classes, and/or programs, that are developed, updated and/or are continuously being developed by Comentum. These libraries provide common features such as the class for the application to connect to a database and make queries, login, registration, uploading a photo, displaying and listing items, and/or all other common features that are used on web applications or mobile apps.
Open source frameworks and open source code libraries are licensed under the following licensing agreement: GNU GPL, LGPL, BSD or MIT licensing agreement. (http://opensource.org/licenses).
Comentum will retain the ownership rights to Comentum Code Libraries and will grant a perpetual, royalty-free, non-exclusive, non restriction license to Client for use in Client's Application subject to payment of all invoices for Project's Percentage of Completion and/or completed work.
Client will retain the full ownership rights to the custom code libraries developed for Client's project subject to payment of all invoices for project's Percentage of Completion and/or completed work.
Confidential Information and Confidentiality
Information that is communicated between Client and Comentum is considered Confidential Information based on the following rules:
Confidential Information are communicated in writing, and such information is marked to be confidential and/or stated to be confidential.
If any Confidential Information becomes public indirectly and/or not disclosed from parties, such information is no longer consider Confidential Information.
Each party is obligated to keep the Confidential Information of the other party private and not disclose the Confidential Information to any third party unless it is required for the purpose of Client's project development and/or unless it is requested by a court of jurisdiction's judge.
Because the majority of projects are developed and deployed within one year, and after the deployment, the project becomes public domain and additionally because record-keeping of Confidential Information becomes costly after the project deployment, this confidentiality section of Comentum's TOS is only valid for one year.
In no event shall either party have any liability to the other party for any lost profits or for any indirect, special, incidental, punitive, or consequential damages however caused and, whether in contract, tort or under any other theory of liability, whether or not the party has been advised of the possibility of such damages.
Comentum offers a Warranty Period on all provided services, and offers Client the option of purchasing a Support Plan thereafter contingent to Comentum's programming availability, thus Comentum does not promise that Comentum's services will be provided free of errors and/or application bugs and/or application issues, delivers a particular business outcome, and/or project execution and goal; therefore, Comentum recommends that Client hire other specialists in the field for a second opinion and for evaluation of the project. Client acknowledges and agrees that Comentum shall not be liable to Client for any claims and/or damages which may be suffered by Client resulting from Comentum's services.
Limits on Damages
Here we refer to work request items and/or bug fix requests as tasks.
The maximum amount of damages that Client can claim is for completing the tasks that Client has requested and paid for, but Comentum did not complete according to the Description of Work.
If Client paid Comentum for a list of tasks and a task was not completed or completed incorrectly, the maximum amount of damages that Client can claim is the cost of completing the task(s) which Client paid for but was not completed and/or completed incorrectly by Comentum.
If Client paid for an Application development, the Application will have a list of tasks, and the maximum amount of damages that Client can claim is the cost of completing the task(s) which were not completed and/or completed incorrectly by Comentum.
If Client paid Comentum for an application development and/or maintaining an existing application, and Comentum created software bug(s) while developing the application, the maximum amount of damages that Client can claim is the cost of fixing the software bugs that Comentum created.
If Client paid for hosting, for example, at $240 per month and there was a server software issue, Internet outage, hardware failure, and/or a security breach for a given month, the maximum damages that Client can claim would be $240.
Both parties agree to the following items as the basis to determine the amount of damages for any project:
Both parties agree to stay proactive in the project progress evaluation, communication and installment payments and communicate any matters about the project in writing and both work together to resolve any matter amicably.
The maximum amount of damages that Client can claim is for the cost of completing the item(s) and/or service item(s) that Client has paid for, but did not receive the item(s) and/or service item(s).
The maximum amount of damages that Comentum can claim is for the services that Comentum has provided, but did not receive the payment for the work provided.
Installment payments for every project's progress is less than $10,000, and both Comentum and Client have the opportunity to evaluate the project progress against the installment payments.
Either party can terminate the project by providing a written notice and Comentum will stop the work immediately after Comentum receives the written notice of termination from Client.
Because of the foregoing reasons, both parties mutually agree that the maximum amount of damages arising from any project shall not exceed $10,000 and if such a dispute arises, both parties mutually agree that the dispute shall be resolved in one of the following courts of jurisdiction based on parties' residency status with the State of California:
If both parties reside in the State of California, and both parties cannot resolve the matter amicably, the dispute shall be resolved using Small Claims Court of Superior Court of California, County of San Diego.
If both parties do not reside in the State of California, and both parties cannot resolve the matter amicably, the dispute shall be resolved using the Civil Division of Superior Court of California, County of San Diego.
In the event that any provision of this agreement is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this agreement which it evidences, shall remain in full force and effect.