MASTER SERVICES AGREEMENT
BASIC TERMS AND CONDITIONS
This Master Services Agreement (“Agreement”) is made between SB Creative Content (“Company”) and Client (“Client”).
Definitions as used herein and throughout this Agreement:
1.1 Agreement means the entire content of this Basic Terms and Conditions document, the Statement of Work document(s), together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.
1.4 Deliverables means the services and work product specified in the Statement of Work to be delivered by Company to Client, in the form and media specified in the Statement of Work.
1.5 Designer Tools means all design tools developed and/or utilized by Company in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 Final Art means all creative content developed or created by Company, or commissioned by Company, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and byway of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Company’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 Final Deliverables means the final versions of Deliverables provided by Company and accepted by Client.
1.8 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Company and which may or may not be shown and delivered to Client for consideration but do not form part of the Final Art.
1.9 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
1.10 Services means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Statement of Work.
1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.12 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of the Client.
2. STATEMENT OF WORK
This Agreement is entered into by and between Company and Client, each as set forth on the Statement of Work that when signed by Client will become a binding part of this Agreement. Each Statement of Work will be governed by these Basic Terms and Conditions (“Terms”), but in the event a provision of the applicable Statement of Work contradicts any provision in these Terms, the applicable Statement of Work will govern the transaction. The terms of the Statement of Work shall be effective for 30 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Statement of Work, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. FEES AND COSTS
3.1 Fees. In consideration of the Services to be performed by Company, Client shall pay to Company fees in the amounts and according to the payment schedule set forth in the Statement of Work, and shall also pay all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Expenses. Client shall pay Designer’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus Company’s standard markup of 25 percent (25%), and, if applicable, a mileage reimbursement at current IRS mileage rate; and (b) travel expenses including transportation, meals, lodging, incurred by Company with Client’s prior approval.
3.3 Additional Costs. The Project pricing includes Company’s fee only. Any and all outside costs such as equipment rental, photographer’s costs and fees, artwork licenses, protype production, talent fees will be billed to Client unless specifically otherwise provided for in the Statement of Work.
3.4 All invoices are due net 15 upon receipt and are non-refundable. A monthly service charge of 1.5 percent (or the greatest amount allowed by state law) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Company reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges or the costs of Changes. Projects placed on hold for more than 30 days will automatically be billed for work completed and are subject to termination and revised estimate if kept on hold for 60 days.
4.1 General Changes. Unless otherwise provided in the Statement of Work, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Company’s standard hourly rate of $95 per hour. Such charges shall be in addition to all other amounts payable under the Statement of Work, despite any maximum budget, contract price or final price identified therein. Company may extend or modify any delivery schedule or deadline sin the Scope of Work and Deliverables as may be required by such Changes.
4.2 Substantive Changes. If client requests or instructs Changes that amount to a revision in or near excess of 10 percent (10%) of the time required to produce the Deliverables, and or the value or scope of the Services, Company shall be entitled to submit a new and separate Statement of Work to Client for written approval. Work shall not begin on the revised services until a fully signed revised Statement of Work, and, if required, any additional retainer fees are received by Company.
4.3 Timing. Designer will prioritize performance of the Services as may be necessary or as identified in the Statement of Work, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Scope of Work. Client agrees to review Deliverables within the time identified for such reviews and to promptly either (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Company. The Company shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Company’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Statement of Work and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Company’s obligations under this Agreement.
4.4 Testing and Acceptance. Company will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify Company, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Scope of Work, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Company will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
5.1 Coordination of any decision making with parties other than the Company;
5.2 Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Statement of Work; and
5.3 Final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Company’s name in the form, size and location as incorporated by Company in the Deliverables, or as otherwise directed by Company. Company retains the right to reproduce, publish and display the Deliverables in Company’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and if not expressly objected to, include a link to the other part’s website.
7. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Statement of Work except as may be required by a court of governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor. Company is an independent contractor, not an employee of Client of any company affiliated with Client. Company shall provide the Services under the general direction of Client, but Company shall determine, in Company’s sole discretion, the manner and means by which the Services are accompanied. This Agreement does not create a partnership or join venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Company and the work product or Deliverables prepared by Company shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and any rights not expressly granted to Client in this Agreement are reserved to Company.
8.2 Designer Agents. Company shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”), provided that Company shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
8.3 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Company, and Company shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Company.
9. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
9.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Company a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Company’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
9.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Company shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated in the Final Art. Under such circumstances Company shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Company from any and all damages, liabilities, costs losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation, or other releases or permissions with respect to materials included in the Final Art.
9.3 Preliminary Works. Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Company within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Company.
9.4 Original Artwork. Company retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Company within thirty (30) days of completion of the Services.
9.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Company assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Company for use by client as a Trademark. Company shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuing that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
9.6 Designer Tools. All Designer Tools are and shall remain the exclusive property of Company. Company hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Designer Tools comprising any software or technology of Company.
9.7 Assignment. Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Company hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Company agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
10. WARRANTIES AND REPRESENTATIONS
10.1 By Client. Client represents, warrants and covenants to Company that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content. (b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
10.2 By Company.
(a) Company hereby represents, warrants and covenants to Client that Company will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) Company further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Company and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Company, Company shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Company to grant the intellectual property rights provided in this Agreement, and (iii)to the best of Company’s knowledge, the Final Art provided by Company and Company’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client of third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Statement of Work or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Company shall be void.
(c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES WHATSOEVER. COMPANY EXPLICITYLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICATION TO THE PROJECT.
11.1 By Client. Client agrees to indemnify, save and hold harmless Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Company shall promptly notify Client in writing of any claim or suit; (i) Client has sole control of the defense and all related settlement negotiations; and (ii) Company provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses uncured by Company in providing such assistance.
11.2 By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Company agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding fact which is inconsistent with Company’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (i) Client promptly notifies Company in writing of the claim; (ii) Company shall have sole control of the defense and all related settlement negotiations; and (iii) Client shall provide Designer with the assistance, information and authority necessary to perform Company’s obligations under this section. Notwithstanding the foregoing, Company shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Company.
11.3 Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF COMPANY ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFLIATES (“COMPANY PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, ORT OR OTHERWISE, SHALL BE LIMITEDTO THE NET PROFIT OF COMPANY. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY COMPANY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. TERM AND TERMINATION
12.1 This Agreement shall commence upon the Effective Date and unless earlier terminated shall remain effective until the Services are completed and delivered.
12.2 This Agreement may be terminated at any time by either party effective immediately upon written notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
12.3 In the event of termination, Company shall be compensated for the Services performed through the date of termination in the amount of (i) any advance payment, (ii) a prorated portion of the fees due, or (iii) hourly fees for work performed by Company or Company’s agents as of the date of termination, whichever is greater; and Client shall pay all expenses, fees, out of pockets together with any additional costs incurred through and up to, the date of cancellation.
12.4 In the event of termination by Client for good cause and upon full payment of compensation as provided herein, Company grants to Client such right and title as provided for in the applicable Statement of Work with respect to those deliverables provided to and accepted by Client as of the date of termination. In the event of termination without cause, upon full payment of the project fee set forth in the Statement of Work for Final Deliverables, Company grants to Client such right and title as provided for in the applicable Statement of Work with respect to those deliverables provided to and accepted by Client as of the date of termination.
12.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
13. 1Modification/Waiver. The parties may only modify this Agreement in writing signed by both of the parties, except that Company’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
13.2 Notices. All notices to be given hereunder shall be transmitted in writing by mail, facsimile or electronic mail with return confirmation of receipt by certified or registered mail, return receipt requested, and shall be sent to the address identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or e-mail, upon confirmation of receipt.
13.3 No Assignment. Neither party may assign its rights or obligations under this Agreement.
13.4 Force Majeure. Company shall not be deemed in breach of this Agreement if Company is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Company or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Company’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Company shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of Services.
13.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of California without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of California. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Company will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Company shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
13.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
13.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
13.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Statement of Work and any other Agreement documents, the terms of the Statement of Work shall control.
SUPPLEMENTAL WEBSITE MAINTENANCE-SPECIFIC TERMS AND CONDITIONS
Client is engaging Company as an independent contractor to perform work as described in the package(s) or service(s) Client has purchased. In the event access to Client’s website is necessary, Client hereby authorizes Company access and “write permissions” to all directories and files of Company’s account with any other third-party hosting provider, as well as permission to install any necessary WordPress plugins for maintenance and security.
2. SITE AUDIT REPORT AND FOLLOW UP MEETING
2.1 Site Audit Report. If Client purchased a Site Audit, Company will perform a review of Client’s current WordPress website and present the findings in a Site Audit Report as described in this Agreement. Once the Client has purchased a Site Audit, the Site Audit Report typically takes 3-5 business days to be completed and emailed to Client. A Site Audit Report includes:
(a) WordPress version number currently running on Client’s website
(b) Theme currently running on Client’s website
(c) PHP version currently running on Client’s website
(d) Analysis of every Plugin installed on Client’s website. Company agrees to provide the following information:
(i) Plugin Name
(ii) Plugin Author
(iii) If the Plugin is a premium or free version
(iv) A short description of what the Plugin does
(v) If the Plugin is active on Client’s website
(vi) If the current version of the Plugin is installed
(vii) If the Plugin is compatible with the current version of WordPress
(viii) Date the Plugin was last updated
(ix) Number of installs
(x) Average rating and number of reviews
(xi) Number of support issues resolved in last 2 months
(xii) If the developer actively responds to support requests on the WordPress Support Forums
(xiii) Next steps for Client to consider regarding the Plugin
(e) Analysis of every Theme installed on Client’s website. Company agrees to provide the following information:
(i) Theme Name
(ii) Theme Developer
(iii) If the Theme is a premium or free version
(iv) If the Theme is active on Client’s website
(v) If the current version of the Theme is installed
(vi) Next steps for Client to consider regarding the Theme
2.2 Follow Up Meeting. Company will schedule either a 1-hour phone call or in-person meeting with Client to review the Site Audit Report findings. If necessary, Company will provide a list of recommendations for how to improve the Client’s website as well as a Project estimate for Company to perform any recommended Services. Client is not obligated to purchase any additional Services from Company.
3. MAINTENANCE SERVICES
3.1 Maintenance Services. If Client purchased a Website Maintenance Services package, Company agrees to provide Client with Website Maintenance Services (“Maintenance Services”) as described in this Agreement. Maintenance Services include:
(a) All WordPress core updates.
(b) Updates to plugins that are available from the WordPress plugin repository. All other plugins can be optionally updated using development hours.
(c) Updates to themes that are available from the WordPress theme repository. All other themes can be optionally updated using development hours.
(d) Updates to text, images and other minor changes to Client’s website pages. The amount of time dedicated towards these tasks each month will be determined by the Maintenance Package purchased by Client at time of signup.
(e) Any website support requests, above and beyond what is outlined in package, or WordPress questions requiring a response by Company, will count towards the monthly allotted time.
(f) Cloud backup of website on a daily, weekly or monthly basis, depending on Maintenance Package purchased.
(g) Recovery of website files from backups.
(h) Uptime monitoring.
(i) Regular security scans.
4. PAYMENT AND RENEWAL
4.1 General Terms. By selecting a product or service, Client agrees to pay Company the one-time and/or monthly or annual subscription feeds indicated (additional payment terms may be included in other communications). All payments will be in USD (US Dollars) and accepted via Credit Card. Subscription payments will be charged on a pre-pay basis on the day Client signs up for Maintenance Services and will cover the use of that service for a month or annual subscription period as indicated.
4.2 Automatic Renewal. Unless Client notifies Company before the end of the applicable subscription period that Client wants to cancel a subscription, Client’s subscription will automatically renew and Client authorizes Company to collect the then-applicable annual or monthly subscription fee for such subscription using any credit card or other payment mechanism Company has on record.
4.3 Fees and Payment. By signing up for a membership account, Client agrees to pay Company the applicable setup fees and recurring fees. Applicable fees will be involved from the day Client’s services are established and in advance of using such services. Company reserves the right to change the payment terms and fees upon thirty (30) days prior written notice to Client.
5. CANCELLATION AND TERMINATION
5.1 Cancellation. Client may cancel subscription for Maintenance Services by emailing [email protected]. Unused Monthly Support Time hours will not be refunded after cancellation but can be used up until end of plan month. Notification of cancellation must be received at least one full week prior to Client’s cycle date, with the cycle date being the day of the month Client signs up, in order to avoid charges in full for the next cycle. It is the Client’s responsibility to secure email confirmation from Company that the service has been cancelled. If Client has not yet received email confirmation of service cancellation, then the account remains active and Client will continue to be charged. Client is responsible for all charges associated with a service until cancellation is verified via email. If the Client has a balance due at the time of cancellation, this balance must be paid in full and the cancellation may be refused until such a payment is made. Cancellation does not absolve Client of any outstanding financial obligations. Company reserves the right to go through a third-party collection agency to collect any overdue payments. All accounts sent through a third-party collection agency will have an additional fee of 38% of the amount owed added to cover the collections fees and other related expenses, subject to applicable laws.
5.2 Termination. Company reserves the right to terminate or suspend any and all Maintenance Services and/or Client’s account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if Client breaches the Agreement. Upon termination of Client’s account, Client’s right to use the Maintenance Services will immediately cease. All provisions of the Agreement which by their nature should survive termination shall survive termination, including limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
6. MONTHLY SUPPORT TIME/SUPPORT TASKS
6.1 Monthly Support Time. Depending on what package Client purchased, Maintenance Services may include Monthly Support Time. Monthly Support Time is the stated number of Development Hours included in the Maintenance Services package at time of purchase. Client can use the hour(s) throughout the month in the form of requests for technical support assistance (“Support Tasks”).
6.2 Support Tasks. Support Tasks requested by Client must be made either through the Company’s helpdesk or by email ([email protected]) so that the request can be categorized and responded to in a timely manner (with reasonable efforts by Company to respond within 3-5 business days). All responses to Support Tasks will be provided in accordance with Company’s standard services practices, procedures and policies. Requests are subject to approval by assigned agent or management. Emergency or rush requests may be subject to a rush surcharge. While the Company does its best to keep the same developer assigned to individual projects, Company cannot guarantee this at any time. Monthly Support Time does not accrue or rollover to the next month if not used.
6.3 Examples of Support Tasks Included in Monthly Support Time. Monthly Support Time can be used as phone support, chat support or development time. Below are some examples of types of Support Tasks included in Company’s Maintenance Services:
(a) Theme/plugin troubleshooting
(b) Theme/plugin audits
(c) Plugin/code conflicts
(d) Theme/plugin installation
(e) Styling elements with CSS
(g) Content and image updates
(h) Creation of basic website graphics (e.g. buttons, banners, etc.)
(i) WordPress Consulting
6.4 Examples of Support Tasks Not Included in Monthly Support Time. Below are some examples of types of Support Tasks not included in Company’s Monthly Support Time:
(a) Website redesign
(b) Custom plugin development
(c) Custom theme development
(d) Search marketing/SEO services
(e) Graphic design
(f) Database design or changes
(g) CMS design
(h) Development of new content
(i) Writing new content
(j) Training on online digital marketing.
(k) Email marketing
(l) Integration for plugins that require intensive configuration and extensive time to set up, including but not limited to blogs, membership or eCommerce plugins, and API integrations with third-party services.
7. SCHEDULING OF MAINTENANCE TASKS
Scheduling of all maintenance tasks is solely at the discretion of Company. Maintenance tasks are done throughout the month. Depending on which Maintenance Services package Client purchased, details about completed tasks will be included in the monthly Website Care Report. Some items, such as updates, only occur when necessary and when the update is a stable version and is okay to proceed. Premium plugins and themes are not included in standard updates.
8. THIRD PARTY OR CLIENT PAGE MODIFICATION
Client acknowledges that Client has access to independently edit or update web pages within the WordPress platform. Client also acknowledges that anyone other than Client or its subcontractors who attempt to update the website and damages the design or impairs the ability for the web pages to display or function properly, may result in time to repair the web pages in order to restore the website. In this event, damages will be assessed at an hourly rate of $95.00 with a one-hour minimum. Work to repair the website from third-party modifications is outside of the support time and scope of the ongoing website care plan.
9. INTERNET ETIQUETTE
Company is a developer of ethical web sites. As such, Company will not design, promote, or attach links to any site that includes adult content, nudity, obscene language or that encourages or promotes intolerance or discrimination of or towards people or peoples of any race, color, sex, creed or religion. Nor will Company design, promote or attach links to any site that advocates, encourages or practices the exploitation of any group or groups in society.
10. MALWARE, SPAM OR MALICIOUS CODE
Removal of malware, spam and malicious code that is existing on a website when Client signs up for a maintenance plan will be charged at a rate of $499 for removal. This charge includes a one-year subscription to WordFence Premium ($99 value) after removal has been done. This charge does not include working with Google or other search engines on Client’s behalf to solve any issues the infection caused.
11. HOSTING SERVICES
Company is able to work with most hosting providers but there are times when Company will recommend that Client migrates from current host due to technical limitations which may inhibit Company’s ability to provide Client with the highest level of service. Company will review Client’s needs and recommend a dependable host for consideration.
No guarantees are made of any kind, either expressed or implied, as to the integrity of Company’s backups or backup services. It is the Client’s responsibility to maintain local copies of content and other stored information. If loss of data occurs due to a failure on Company’s part, Company will take reasonable action to recover the data in-house at no charge to the Client. If data loss occurs due to negligence of Client in securing their account, by an action of the client, or any actions not under the direct control of Company, Company will have no liability.
Clients are solely responsible for maintaining insurance coverage for any claims which may arise under this Agreement and for which Client may be legally liable. It is Client’s responsibility to adequately insure against business interruption, loss of business or other losses. Company shall not have responsibility to Client for failure to maintain sufficient insurance coverage. Company liability shall not exceed that which is set forth in this Agreement.
14. CLIENT RESPONSIBILITIES
For the purposes of providing these Maintenance Services, Client agrees:
(a) To properly convey to Company the information that needs to be changed or added.
(b) To answer any questions from Company in regards to Support Task promptly.
(c) To provide Company with access to Client’s website for creating new pages, and making changes for the purpose of providing Maintenance Services.
(d) To provide Company access to their web hosting account, providing active username/password combinations for access to the server via FTP, assuring that ‘write permissions’ are in place on hosting provider.
Client understands, acknowledges and agrees that:
(a) The amount of time allotted for updates to text, images and other minor changes, is determined by the Maintenance Package that Client purchased. Monthly Support Time will be billed in six (6) minute increments.
(b) Client understands that all work for Support Tasks will be scheduled to Company’s workflow. The Company has a process and maintains sites for many Clients; therefor, all website work that count towards Client’s Monthly Support Time allotment is done a first come, first serve basis, except in the case of a total website down issue, which would be considered an “emergency.”
(c) Failure by Client to answer a question critical to the completion of a Support Task within 5 business days may cause that task to be “bumped” and moved to the “end of the line” in Company queue. Depending on the day of the month, this could cause the Support Task to roll over in the next month’s bucket of update requests.
(d) Once the time allotted in Client’s Maintenance Package has been reached for the month, any unfinished Support Tasks will be rolled into the next month for processing.
(e) Should the Client wish to have additional Support Tasks completed in the same month, they will be billed on an hourly basis of $95 per hour. A separate Statement of Work will be provided for Client approval.
(f) Client understands that if they provide Company with a Support Task and Client wishes to make changes after the Support Task has been completed, any additional time to make these changes will counts toward Client’s Monthly Support Time.
(g) Additional services not listed herein will be provided for a fee of $95.00 per hour.
(h) All communications will be done during regular business hours, which are Monday through Friday from 9:00 a.m. – 4:00 p.m. (PST).
(i) Company has no control over third-party hosting companies in regards to server downtime, incompatibilities with software, PHP compatibility issues, etc.
(j) Company is not responsible for Client’s third-party email issues or troubleshooting problems on Client’s computer.
(k) Company has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept, now or in the future. Client’s website(s) may be excluded from any search engine in the future. Client’s website(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
(l) Unused Monthly Support Time is not accumulative and does not transfer from month to month.
(m) Company is not responsible for changes made to Client’s website(s) by other parties, including the Client themselves.
(n) Company is not responsible for third party plugins that may become unusable as a result of Maintenance Services performed.
(o) Recovery or repair of Client’s website is not guaranteed.
(p) Availability of backups is not guaranteed.
16. CLIENT REPRESENTATIONS
Client makes the following representations and warranties for the benefit of Company:
(a) Client represents to Company and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks or other artwork furnished to Company are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect and defend Company and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
(b) Client guarantees to Company and unconditionally guarantees that Client’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
(c) From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce.
(d) Client agrees that the Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of Internet electronic commerce.
17. READ AND UNDERSTOOD
By purchasing a Maintenance Package, Client acknowledges that they have read and understand this Agreement and agree to be bound by its terms and conditions.
18. CONTACT INFORMATION
If you have any questions or comments about this Agreement as outlined above, you can contact Company at [email protected]. Company is not affiliated with the WordPress Foundation or Automattic.