1.  Acceptance of Terms
By accepting NellKat Creations (NKC) Terms of Service (TOS) electronically or in writing, and/or by using NKC services, including but not limited to, submission of content to NKC design department, payment or authorization of payment, you (Client) agree to be bound by the following terms and conditions. Client also agrees that Client’s electronic acceptance of this TOS shall have the same force and effect as if Client had agreed to this TOS in writing.
NKC provides its services to Client subject to the following TOS, which may be updated from time to time without notice. Client may review the most current version of the TOS at  http://www.nellkat.com/tos.html. Failure to comply with the TOS may result in account termination. By using NKC services Client agrees to (and hereby signs) the most current version of the TOS. If Client does not expressly reject the TOS and cancel Client’s account within 5 days from the date of initial sale, Client agrees to (and hereby signs) the TOS and NKC is instructed to commence work on the Client’s website as if Client had expressly accepted the TOS.
Client’s acceptance of the TOS is binding upon all NKC services including the purchase of additional services or additional websites or accounts at a later date.
2.  Description of Service
NKC designs and provides other website-related services, including, but not limited to, support and modification of websites, flash, web-traffic reporting, database development, set up of email accounts and additional website-related services. Client understands that NKC services may include certain communications from NKC such as advertisements, notices, service announcements and newsletters. Client is responsible for obtaining access to NKC’ services that may involve 3rd party fees (including but not limited to, ISP, merchant accounts and gateways). Client is also responsible for all equipment and software necessary to access NKC services.
3.  Electronic Delivery Policy
NKC is a website-related business and communicates with its Clients electronically. When Client accepts this TOS Client consents to receive electronically from NKC any notices, agreements, disclosures, or other communications (Notices). Client agrees that NKC may send electronic Notices in either of the following ways. 1) To the email address provided to NKC at the time of sale or 2) to the new email address account Client set up through NKC. Client agrees to check the designated email addresses regularly for Notices. Notice from NKC is effective when sent by NKC, regardless of whether the Notice is read or received by Client.
4.  Privacy Policy
Personal data and certain other information about the Client are subject to NKC’ Privacy Policy. For more information see the privacy policy at http://wwwnellkat.com/private.html. By using NKC’ services Client also agrees to the most current version of NKC’ Privacy Policy.
5.  Call Monitoring and Recording Privacy Statement
As part of NKC’ commitment to providing the best possible service NKC may monitor and record phone calls answered by NKC and made by NKC. NKC may also archive recorded voice mail messages. NKC records calls for training purposes, to improve customer service, and to ensure an accurate record of Client calls, which may be needed to support transactions that take place over the phone. This allows NKC to identify how NKC can better serve its customers.
6.  Unacceptable Practices
As NKC strives to offer the very best service, there are certain guidelines and policies that must govern NKC’ efforts and relationships with its clients. Practices that are in violation of these guidelines and policies are strictly forbidden and will result in the immediate termination of NKC’ services. Such decisions are at the sole discretion of NellKat Creations. Unacceptable practices include, but are not limited to:

• Adult or pornographic material including, but not limited to, sexually explicit or suggestive material
• Sexually oriented products or material
• Nudity, including airbrushing (exceptions granted on a case-by-case basis if for medical or artistic purposes)
• Lingerie websites
• Offensive or otherwise distasteful material
• Content or language that is harmful to minors in any way
• Bulk emailing tools
• Distribution of internet viruses or other harmful or destructive activities
• Hacking and cracking
• Scams or phishing for personal information
• Solicitation of funds other than for legal charitable organization
• Gambling, gaming, lotteries, and like activities
• Harmful, threatening, violent, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, racial, chauvinistic, ethnically offensive or otherwise objectionable content or language
• Defamatory, hateful or revenge content or language.
• Aids to pass drug tests or aids to pass lie detector tests.
• Illegal activities such as ponzi schemes, pyramid schemes, fraudulent charging of credit cards, copyright violations, plagiarism, software piracy, and all unauthorized use of materials or content that infringes on third parties’ intellectual properties
• MLM without a legitimate product or service or with a front product or service
• Illegal drugs or drug paraphernalia
• Prescription drugs and related content
• Miracle cures
• Fake documents
• Fireworks, pyrotechnics or weapons.
• Intentional or unintentional violations of any applicable local, state, national or international law.
• Reselling email accounts or hosting accounts to third parties
• Reselling of any NKC services including, but not limited to, design services, updates, and WTD to third parties without a written re-seller agreement.
• Spamming and all other forms of unsolicited messages including, but not limited to, spam, chain letters, and junk email
• Links to other sites that are in violation of NellKat Creations’ policies and guidelines
• Other activities, whether lawful or unlawful, that NKC deems to be in poor taste or that reflect adversely on NKC or NKC’ other clients
• NKC reserves the right to refuse to design or host an account at its sole discretion at anytime.

As an NKC’ Client, you agree to conduct your business in a legal and professional manner. Client understands that all information, data, text, software, music, sound, photographs, video, messages and other material (Content) on Client’s website is the sole responsibility of the Client. Client is fully responsible for all website content and agrees to hold NKC harmless in the event of third parties’ legal issues brought against Client for Client’s business practices. NKC retains the right to terminate any accounts that are in violation with the letter or spirit of this TOS. NKC may also at its sole discretion and at any time, discontinue providing services, or any part thereof, with or without notice. If an account is terminated by NKC for a TOS violation the Client is not eligible for a full refund and any refund is subject to the Cancellation Fee and Refund Policy. (See Termination)
As an NKC Client you may have access to editing tools for your website. Client may edit, add or delete content to the website at anytime. With this understanding NKC may or may not pre-screen content. NKC shall have the right (but not the obligation) to pre-screen and refuse or remove any content at its sole discretion. Client agrees that Client bears all risks associated with the use of all content, whether edited or written by NKC or not, including any reliance upon accuracy, usefulness or completeness.
Client acknowledges that NKC may access, preserve, and disclose Client’s account information and content if required to do so by law or in a good-faith belief that such access, preservation, or disclosure is reasonably necessary to comply with legal processes, enforce the TOS, provide customer service or protect the rights, property, or safety of NKC and the public.
7.  Intellectual Property Policy
NKC respects copyright laws and the intellectual property of others. NKC may terminate accounts for copyright infringement. If you believe your work has been copied and is accessible on an NKC’ website please see NKC’ Intellectual Property Policy
http://www.nellkat.com/intellect.html
NKC will not use copyrighted or trademarked materials on any Client’s website without the express written consent of the copyright or trademark owner. It is Client’s responsibility to ensure that all content submitted to NKC is original content and free from third-party copyright or trademark protection, or to obtain permission to use from the copyright or trademark owner. Client assumes full liability for any copyright or trademark infringement of Client’s website on any third-party copyright or trademark, including, but not limited to, any infringement due to website content, website design or the look and feel of Client’s website.
(See Unacceptable Practices)
Customer content that is sent to NKC will remain the intellectual property of the Client. NKC does not return original content to the Client. Unless a request to return the original content to the Client is made in writing upon submission of the content, the content will be destroyed. NKC will attempt to honor requests to return original content; however, NKC has no liability and does not guarantee the return of any content to Client.
Domain names purchased by NKC and website designs, databases, stores, or programs created by NKC are the property of NKC until Client has paid all fees including one full year of monthly hosting. (See Domain Names Purchase/Hosting Agreement)
8.  International Use
Recognizing the global nature of the internet, Client agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, Client agrees to comply with a) all laws and regulations regarding the transmission of technical data exported from the United States, or the country in which Client resides and/or transacts business, and b) all laws and regulations regarding the collection and processing of personal data, including those relating to the transborder transfer of personal data.
9.  Interstate Communications
Client acknowledges that by using NKC’ services Client will be causing communications to be sent through NKC’ computer networks, which may be located throughout the United States. Due to the nature of electronic communications, even communications that seem to be intrastate can result in the transmission of interstate communications. Client acknowledges that use of NKC’ services results in interstate data transmissions and may result in transborder transfer of personal data. Client hereby consents to the collection, processing and transborder transfer of such personal information as Client may provide or make available to NKC.
10.  Website Construction Procedure
With help and input from the Client, NKC will prepare the appropriate custom design and work with the content provided by the Client for development of the site. Client must submit content to the design department before site construction begins on the custom website. Client must submit content in MS Word format. Client must electronically accept the TOS before content will be accepted by NKC. After content is submitted by the Client the website is developed. Prior to the website being taken live the client will receive a missing information notification if content is incomplete. Client will then have one week to submit complete content. If complete content is not received the website will then be taken live “as-is”. If the website is taken live without all of the pages completed due to incomplete content those pages may be banked and developed in the future using Client’s design time.

The design and content layout are completed by the designer and presented to the Client for approval. After the Client approves the website, the website will go live. The NKC QC team may review the text before site goes live to correct any possible errors. NKC will not be held liable for accuracy of information, typos, or spelling errors in any of the content approved by the Client and published on the website. Client will be notified by email that the website is now live.

Client understands, agrees and acknowledges that NKC does not guarantee a time frame for completion of ANY custom website. A custom website cannot be completed without submission of complete content, design approvals and participation from the Client. If Client continues submitting additional content throughout the design process, the design time frame is increased. If Client does not submit complete content and NKC is not able to start or complete the custom website design, Client is still responsible for all fees incurred including, but not limited to, set-up, enhancement and monthly hosting charges that begin accruing from date of sale. If Client’s website requires custom programming, functionality, flash, e-commerce or the use of a database, the overall development time will be extended.

Client is provided with a space holder immediately after sale. Client is also provided with a welcome website shortly after the initial sale. The welcome website is a temporary website Client can send customers to while the custom website is being built. Client may choose not to have a welcome website if so desired
11.  Client Approval
Client is responsible for testing the functionality of the website upon NKC’ request for approval, and notification that the website has been completed. This includes, but is not limited to, functionality of all website pages, database, payment functions, galleries, forums etc. Upon Client approval of the website to go live Client agrees services have been rendered and functionality of website has been tested and approved by Client.
The Client understands and agrees that if the Client does not respond within 5 business days to NKC’ request for approval, and notification that the website has been completed, the website along with the functionality of the website and services rendered, will be deemed to be approved by the Client, and the website will be taken live “as-is”. 
The Client understands and agrees that if the Client does not respond to requests for missing information a final notification will be sent to the Client. If the Client does not respond within 5 business days to NKC’ notification or requests for missing information, the website, along with the functionality of the website and the services rendered, will be deemed to be approved by the Client, and the website will be taken live with the missing information “as-is” or “under construction”.
In the event that NKC completes all of the work per the original sale and database write ups NKC reserves the right to move the site live and deem the work to be completed without the customer’s permission if the customer will not give approval of the work.
12.  Website Change Requests Before and After Website Goes Live
NKC agrees to build a website to specifications quoted per the original sale and original invoice. Any additions or changes requested outside of the scope of the original sale, either prior to the custom website going live or after the site has gone live will be billed at NKC’ standard hourly rate. NKC is not obligated to complete Client requests or changes outside of the scope of work on the original invoice. If NKC does not agree to Client requests or changes, Client is still obligated to pay all fees incurred and due.
13.  Enhancements to Website
Client may purchase enhancements to the website at the time of initial sale or anytime thereafter. Enhancements to the website may include, but are not limited to, custom programming, database, flash, e-commerce, logos, galleries, rollovers, etc. Client’s requests for enhancements to the original sale will be due and billed separately and at the time of request. The annual hosting fee will be adjusted according to the enhancements requested or the hosting package selected by Client.

Some enhancements such as, but not limited to, flash, custom programming, functionality, etc may require that a specifications summary be presented to the Client. If the Client does not object to the specifications summary within 5 business days, the summary will be deemed to be accepted, and NKC will proceed with the development as outlined. Once work has begun on enhancements purchased by the client there is No Refund if cancelled. Enhancements or additional services purchased after the initial sale are separate purchases and are in addition to and separate from the original sale. If a client cancels an enhancement the original sale is not cancelled.
14.  Additional Services
Client may purchase at an additional monthly cost additional services offered by NKC. Additional monthly services may include, but are not limited to, the Web Traffic Director program (WTD), spam filters, and back-up software. Additional monthly services include a monthly fee that is incurred and billed every month beginning from the date of purchase of the additional service. NKC will Not Refund any fees incurred for additional services or paid by the Client prior to the cancellation effective date for the additional service. Any fees invoiced and incurred are valid and Client agrees to pay. Additional services purchased may be cancelled with 30 days written notice.
15.  Email Accounts 
Email accounts may be set up and used immediately upon Client’s purchase of website. Client does not need to wait until custom website is live to use email accounts. To begin using email accounts Client should contact Technical Support at support@NellKat.com.
16.  Technical Support
NKC’ technical support department should be contacted at support@NellKat.com for any concerns with Client email accounts or any problems with functionality of the website after the website is live.
If Client uses NKC’ technical support services, including but not limited to screen share sessions, Client acknowledges and understands that NKC does not warranty that technical support services will meet Client’s requirements or be error free. (See Disclaimer of Warranties and Limitation of Liabilities.)
17.  Customer Service
NellKat Creations strives to offer the best service available. Customer service complaints or concerns should be emailed to service@NellKat.com
18.  Data Backup 
NKC periodically backs up the websites it hosts. However, Client acknowledges that NKC is not responsible for backing up Client’s website and data. Client should seek appropriate backup solutions. Changes made by Client using the editing tool or by NKC may be lost if data loss occurs after a scheduled backup by NKC.
19.  Updates to Live Website/Design Time
After the website is live, Client may wish to make changes or updates to the website from time to time. Most changes can be made using NKC’ online editors. The online editors may not be available for all websites, or all pages of a website. Availability of the online editors is dependent upon the functionality and specifications required for the Client’s website.   For changes that cannot be made by Client with the editors, Client may request NKC to make the changes. These changes must be requested by emailing updates@nellkat.com  Changes or updates will be billed to the Client at the standard hourly rate.
NKC is not responsible for any changes Client makes to website, or if Client breaks the website. Time required by NKC to repair changes made by Client will be billed to Client at NKC’ standard hourly rate.
20.  Domain Names Purchased/Hosting Agreement
Annual hosting is billed from the date of sale, regardless of the date the website goes live, because hosting costs are incurred immediately. Server space is secured for the developing website and/or for existing Client domain names. In addition, email accounts and support are available from the date of sale.  Client agrees to a one year hosting commitment with NKC.

Domain names purchased by NKC and website designs, databases, stores, or programs created by NKC are the property of NKC until Client has paid all fees including one full year of monthly hosting. At that time ownership of the site and it’s functionality, and domain name may be transferred to the Client’s control upon receipt of the Client’s written request. Sham purchases of sites may not be transacted with the intent and/or result of having a site built, then transferring the site to another hosting provider. Clients may buy-out their hosting by paying 12 months of hosting in advance if they wish to transfer the domain name and content to Client’s control.

Upon transfer of domain and/or website to Client or another service provider, at anytime, Client agrees that NKC has met in full its obligation to Client, and NKC is released of all past and future obligations to the client. Additional work and/or hosting done for Client must be agreed to in writing and paid for by Client.

Domain names are purchased through a third party service. NKC cannot guarantee the availability of domain names and has no liability for a domain name not being available for purchase after the initial sale. If a domain name is not available for purchase NKC will assist the Client in selecting and purchasing an alternate domain name. Domain names already owned by the Client remain the property of the Client and renewal of the domain name is the Client’s responsibility. The renewal of any domain names transferred to the Client is the responsibility of the Client.
21.  Marketing Representations
NKC makes no representations as to the marketing of Client’s products, services or sales. Client’s obligation to pay fees due to NKC are due at time of sale of website design and hosting services and are not contingent upon Client’s marketing of said website. Client is responsible for all marketing of Client’s website. NKC is not responsible for marketing of Client’s site including search engine rankings.
22.  30-Day Satisfaction Guarantee
NellKat Creations provides a 30-day satisfaction guarantee. NKC will continue to change and modify the Client’s website to Client’s liking, within 30 days from the date of sale or until the website is taken live, whichever comes first, at no additional cost. Changes to the website made after 30 days from the date of the initial sale, or after the website is taken live, will  be billed to the Client at NKC’ standard hourly rate over and above the initial design fee paid. NKC does not guarantee that the website designed will be exactly what the client has envisioned. NKC’ best effort will be given for the 30-day satisfaction guarantee but NKC is not obligated to complete multiple redesigns or modifications. While NKC may agree to make requested changes and to bill Client directly, NKC is not obligated to complete Client requests or changes outside of the 30-day satisfaction period. If NKC does not agree to Client requests or changes, Client agrees and is still obligated to pay all fees incurred and due.
23. Billing Policy
Fifty percent (50%) of the initial design set-up fee is due and billed in full at the time of the original sale.  The final fifty percent (50%) of the design fees are due on the date that the website goes live.  Annual hosting is billed and due at the time of the original sale. The Client hereby requests that NKC renew and bill annual hosting fees every 365 days, unless the Client cancels in writing after 12 months of monthly hosting fees have been paid.
Additional services fees may be billed on the 1st or 15th of each month to coincide with NKC’ billing cycles. The amount of the initial design set-up fee and monthly hosting fees are detailed on the original invoice confirming amounts of sale. Annual hosting amounts may vary depending upon the hosting package selected by Client.
NKC reserves the right to change prices at any time including annual hosting amounts and hourly design fees.
NKC accepts payment via check, and cash.
24. Billing Disputes
NKC charges up to a $50.00 fee for returned checks. If NKC does not receive payment in full when due, NKC may, to the extent permitted by the law of the state of the billing address on file for Client at the time, charge a late fee of up to 1.5% per month (18% per annum), or a flat fee of $5 per month, whichever is greater, on any unpaid balance. NKC may, to the extent permitted by the law of the state of the billing address on file for Client at the time account is sent to a collection agency, also charge Client for any collection agency fees and/or attorney’s fees billed to NKC for collecting from Client. NKC does not agree to, and will not honor any limiting notations made by a Client on a check.
If Client wishes to dispute a charge Client must first contact NKC’ billing department and must allow 10 business days for a response. To avoid any dispute about Client’s attempt to contact NKC, Client must send the request in writing to:  Attn: Billing Department, NellKat Creations, P.O. Box 6734, Florence, KY 41042. Requests may be emailed to billing@NellKat.com. If Client chooses to send request by email, a copy of the request must also be sent by mail as confirmation.
25. Termination/Cancellation of Services
NKC, at its sole discretion, may terminate its service and remove and discard any content, for any reason, including and without limitation, for lack of use, or if NKC believes Client has violated the TOS. NKC may also at its sole discretion and at any time, discontinue providing services, or any part thereof, with or without notice. Client agrees that any termination of access to NKC’ services under any provision of this TOS may be effected without prior notice and that NKC may deactivate or delete Client’s account and all related information files. Client agrees that NKC shall not be liable to Client or any third-party for any termination of services. Paid accounts that are terminated will not be refunded. In addition, accounts that become 30 days delinquent will be terminated. NKC also reserves the right to discontinue the designing of Client’s website at any time, at NKC’ sole discretion, with an appropriate refund to the Client. Under no circumstances is the refunded amount to exceed the amount collected by NKC.
If the Client cancels an account before the work is completed or site is live, a cancellation fee is retained per the Cancellation Fee and Refund Policy. Client agrees that all fees incurred and billed prior to cancellation effective date are valid and Client agrees to pay. Upon request for termination of services the website will be removed. A back-up copy of the website is not maintained by NKC.
Client agrees to pay all hosting fees and additional services fees owed from the time of sale until the cancellation effective date, and at a minimum for hosting fees for one year. Transferring a domain name to another provider or non-use of Client’s hosting account does not constitute termination of the account. Client must notify NKC in writing or via email to terminate the account services and avoid further annual hosting charges. It is Client’s responsibility to secure confirmation from NKC that the request for termination has been received and no further hosting fees will be billed.
Requests for cancellation of website hosting services or additional services should be sent to the following address:
Attn: Billing Department, NellKat Creations, P.O. Box 6734, Florence, KY 41042
Requests may be emailed to billing@NellKat.com. If Client chooses to send request by email, a copy of the request must also be sent by mail as confirmation.
26. Cancellation Effective Date
Client may terminate hosting services with 30 days written notice, after one full year of paid hosting. The effective date of cancellation is to be 30 days from the date of NKC’ receipt of written notice to cancel. Any annual fees scheduled to bill after receipt of written notice to cancel but before the effective date of cancellation are valid and client agrees to pay.
If Client has not paid all design, enhancement, hosting and additional services fees due, such fees are due in full at the time of cancellation and Client authorizes NKC to collect any outstanding fees due, subject to the Cancellation Fee and Refund Policy. Client understands any pending billing for design fee installments previously agreed to will not be cancelled.
27. Cancellation Fee and Refund Policy
WEBSITE DESIGN/DEVELOPMENT - Refunds of the fees paid for development of the website may be issued on accounts cancelled within 30 days of the initial sale and prior to the completion of the website according to the following schedule:
A)  A minimum of a 50% cancellation fee will be retained by NKC on cancelled accounts even if no work has been started and no content yet submitted by the Client.
B)  A minimum of a 75% cancellation fee will be retained by NKC on cancelled accounts if work has been presented to the Client; or NKC has made multiple attempts to work with the Client, and Client has not responded to those attempts.
C) A 100% cancellation fee will be retained by NKC and NO REFUND issued if any changes and/or modifications requested by the Client have been completed by NKC. No Refund will be issued on any website cancelled after services have been rendered, including but not limited to, the design work having been completed and/or the website taken live.
D) 100% cancellation fee will be retained and NO REFUND will be issued by NKC if Client cancels after 30 days from the initial sale.
MINIMUM CANCELLATION FEE – Client agrees that a minimum cancellation fee of 50% will be retained by NKC on all cancelled accounts even if no work has been started. The cancellation fee is charged to compensate NKC for up-front expenses and services rendered, including but not limited to, costs incurred for the purchase of domain name(s) for developing the website, securing server space, creating the temporary website or space saver, employee expenses, marketing, and overhead costs.

ENHANCEMENT SALES - A 100% cancellation fee will be retained by NKC and NO REFUND will be issued once work has begun on any enhancements purchased, including, but not limited to, databases, programming, logos, flash, galleries, rollovers, e-commerce stores etc. Client agrees that a minimum cancellation fee of 50% will be retained by NKC on all cancelled enhancement purchases if cancelled within 30 days of the enhancement sale and if work has not yet begun. NO REFUND will be issued by NKC if client cancels after 30 days from the enhancement sale. Enhancements or additional services purchased after the initial sale are separate purchases and are in addition to and separate from the original sale. If a client cancels an enhancement the original sale is not cancelled.
ANNUAL HOSTING – Client agrees that there is NO REFUND of annual hosting fees or monthly additional services fees incurred or paid by the Client prior to cancellation date.

Client agrees that all fees incurred and billed prior to cancellation date are valid and Client agrees to pay. (See Termination).
28. Account Transfer
Requests for transferring the ownership of a website or hosting account from Client to a new owner must be completed in writing by both the current account owner and the new designated owner.  The transfer is not valid until a signed request is received by NKC in writing which is to include payment authorization and new billing account information from the new owner, documentation of the ownership transfer (purchase agreement etc), documentation of copyright transfer, and acceptance of NKC’ TOS by the new Owner. 
29. NellKat Creations Proprietary Rights
Client acknowledges and agrees that NKC’ services may contain proprietary and confidential information that is protected by intellectual- and proprietary-rights laws. Client agrees to not reproduce, duplicate, copy, sell, resell or exploit any portion of NKC’ services.
30. Use of Client Information
Client hereby agrees that any information or ideas submitted to NKC by any means may be used by NKC without compensation or liability to Client for any purpose whatsoever, including but not limited to, developing websites, databases, e-commerce and developing, manufacturing and marketing other products. This provision does not apply to Client content or to personal information that is subject to NKC’ Privacy Policy.
Client herby gives permission to NKC to use samples or links to Client’s custom website designed by NKC for marketing and advertising purposes, including but not limited to, use in NKC’ online portfolio.
31. Third-Party Services
From time to time third parties may offer service to NKC’ clients. Use of such third-party services will be at Client’s own risk and subject to the terms and conditions of those third parties. NKC does not represent nor warrant that use or access to any third-party services will be compatible, uninterrupted, error free, without defects or that Client will be able to access NKC’ services. Client also agrees that NKC is under no obligation to provide Client with any enhancements, updates, or fixes to make NKC’ services accessible through any third-party applications.
32. Contract Service Providers
NKC may contract with Contract Service Providers to complete a portion, or all of the Client’s custom website. The Client agrees not to do business directly with the Contract Service Provider, nor to remit payment to the Contract Service Provider or any NKC employee directly for services. All payments for services rendered must be made directly to NKC. Contract Service Providers are required to enter into employment contracts and to follow company policies and procedures. Contract Service providers are provided with only the information needed to complete the design or development portion of the Client’s website and do not have access to Client’s personal information including payment information.
 
33. Disclaimer of Warranties
CLIENT’S USE OF NKC’ SERVICES IS AT CLIENT’S OWN RISK. NKC’ SERVICES ARE PROVIDED “AS IS”. NKC DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NKC DISCLAIMS ANY WARRANTIES REGARDING NKC’ SERVICES INCLUDING THAT THEY WILL MEET CLIENT’S REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NKC DISCLAIMS ANY WARRANTIES REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF NKC’ SERVICES, INCLUDING RESULTING SALES AND WEB TRAFFIC. NKC DISCLAIMS ANY WARRANTIES REGARDING THE MARKETING OF CLIENT’S PRODUCTS, SERVICES, SALES, OR WEBSITE. NKC DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH NKC’ SERVICES, OR LINKS PROVIDED BY NKC’ SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE PROVIDED BY NKC OR OBTAINED THROUGH LINKS PROVIDED THROUGH NKC’ SERVICES.
CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF NKC’ SERVICES ARE DONE AT CLIENT’S OWN RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO CLIENT’S COMPUTER SYSTEM OR LOSS OF DATA OR OTHER LIABILITY THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT.
34. Limitation of Liability
CLIENT UNDERSTANDS AND AGREES THAT NKC, IT’S SUBSIDIARIES, AFFILIATES, OFFICERS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, (EVEN IF NKC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OF OR INABILITY TO USE NKC’ SERVICES, RELIANCE ON NKC’ SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF NKC’ SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES.)  THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED THROUGH NKC’ SERVICES OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT’S DATA OR TRANSMISSIONS AND ANY STATEMENTS OR CONDUCT OF A THIRD PARTY OR ANY OTHER MATTERS RELATING TO NKC’ SERVICES. SUCH LIMITATION SHALL FURTHER APPLY, WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED IN ANY WAY TO NKC’ SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CLIENT.
Without limiting the foregoing, under no circumstance shall NKC be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, or other casualties, illness, accidents, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non performance of third parties, or loss of or fluctuations in heat, light or air conditioning. NKC’ full and complete liability, for any reason whatsoever, shall be limited to the full refund of all monies paid to NKC.
35. Tort Claims
Client waives all tort claims against NKC, it’s subsidiaries, affiliates, officers, employees and agents. The relationship between the parties is contractual in nature only. Client waives any tort claims that arise by act, or omission.
36. Indemnification
Client agrees to defend, indemnify and hold harmless NKC, its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees that may arise or result from any content Client submits, posts, transmits or makes available through NKC’ services, from any product sold by Client, its agents or employees or assigns, from any service provided or performed or agreed to be performed by NKC or from Client’s breach or violation of the TOS, including any obligation, representation, or warranty made herein , or Client’s violation of any rights of another. Client further agrees to defend, indemnify and hold harmless NKC, its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising from or related to contracts, representations, agreements, promises, etc, made between Client and third parties, or arising from or related to Client’s negligence toward third parties.
37. Notice
Unless otherwise specifically provided, all notices required or permitted by this Agreement shall be in writing and in English and may be delivered personally, or may be sent by email, facsimile or certified mail, return receipt requested, to the address set forth below. If Client chooses to send request by email or facsimile, a copy of the request must also be sent by mail (to the address below) as confirmation of the request.
NellKat Creations
P.O. Box 6734
Florence, KY 41042
Attn: President
38. Contact NellKat Creations
Client may contact NKC at 859-918-1663 M-F from 8:30 –5:00 EST. Client may visit our website at www.nellkat.com at any time. Client may also email NKC at the following department email addresses:

39. Negative Comments/Slander
Client specifically agrees not to engage in negative comments or slander regarding NKC, including but not limited to publishing, or causing to be published, complaints or derogatory comments regarding NKC in any format, including but not limited to, print, newspaper, television, radio or on internet complaint sites, blogs or other public internet forums. Should there be a breach of this condition NKC will be entitled to liquidated damages in the amount of $2,500.00 for each publishing or posting. If said breach occurs on an internet complaint site each hit to that website will be considered an individual breach of this condition, and subject to additional liquidated damages of $100 per occurrence. Further, NKC shall be entitled to litigate this matter, and obtain the money damages together with injunctive relief. The prevailing party to that litigation shall be entitled to an award of attorney’s fees.
40. Severability; Waiver
In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision the remainder of this Agreement shall remain valid and enforceable according to its terms. The failure by NKC to avail itself of any right or enforce any obligation of this agreement shall not be deemed to be an ongoing waiver of such right or obligation or of any other right or obligation.
41. Jurisdiction
This agreement shall be governed exclusively by the laws of the Commonwealth of Kentucky, USA, without regard to any conflicts of laws provisions thereof, as a contract entered into and performed entirely within the Commonwealth of Kentucky. The parties herby expressly disclaim the application of the United Nations Convention on the International Sale of Goods. Any disputes between the parties relating to the subject of this agreement shall be submitted exclusively to the jurisdiction of the state or federal courts located in the Commonwealth of Kentucky, County of Boone, and the parties expressly consent to personal jurisdiction and venue therein and waive any objection based on forum non conveniens or otherwise.
42. Arbitration
Notwithstanding the foregoing, in lieu of litigation, arbitration may be used as a means of resolving disputes. Arbitration would be through a neutral third-party arbitrator to be approved by both Client and NKC. If any court sitting outside the United States determines that the litigation forum or arbitration provisions of this agreement are invalid, then and only then, the parties agree to settle any dispute through binding arbitration by three arbitrators, in the English language, under the commercial arbitration rules of the International Chamber of Commerce, with the location of the arbitration to be in a neutral jurisdiction (not the country of residence of the Client or of NKC) as selected by NKC .  
43. Governance
NKC may investigate any reported violations of this agreement, its policies or any other complaints and take any action it deems appropriate to protect its systems, facilities, Clients, and/or third parties.
44. Electronic Signatures
Selecting and submitting “accept” on the electronic copy of the TOS, submitting content through the ODP, making payment, or submitting information or documents to NKC so that NKC may perform services for the client, the same shall constitute an electronic signature as defined by Kentucky’s Revised Statutes, KRS369.101 – KRS369.120 et seq.
45. General Information
This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior oral or written agreements (including, but not limited to, any prior versions of the TOS). Any modifications to this agreement must be in writing and signed by an authorized officer of NKC. All representations not in writing are null and void. Written agreements may include, but are not limited to, emails and electronic acceptance of this Terms of Service.
Client agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of NellKat Creations’ services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect.