Maintenance Services Agreement
Effective Date: January 1, 2022
This Website Maintenance Agreement (“Agreement”) is hereby entered into between you, your employees and agents (collectively “Client”) and applies to the purchase of all website maintenance services (hereinafter collectively referred to as “Maintenance Services”) ordered by Client.
Term and Termination
This Agreement shall be effective as of the date Client signs up for, or purchases, Maintenance Services. This Agreement may be terminated by either party upon 30 day written notice to the other. If either party breaches any material obligation provided hereunder and the breaching party fails to remedy such breach within thirty (30) days of receipt of written notice of the breach, then this agreement may be terminated by written notice. This Agreement may be terminated by Flawless Websites (i) immediately if Client fails to pay any fees hereunder; or (ii) if Client fails to provide prompt and timely responses to Flawless Websites inquiries or requests, or if Client hinders Flawless Websites ability to perform the Maintenance Services hereunder.
Flawless Websites agrees to provide Client with Maintenance Services as described in this Agreement. Maintenance Services include:
- Updates to text, images, and other minor changes to Client’s website pages and/or posts. The amount of time dedicated towards these tasks each month will be specified by the Maintenance Plan/Package purchased by Client.
- Any website support requests, above and beyond what is outlined in package, or WordPress questions requiring a response by Flawless Websites will count towards the monthly allotted time.
- Upgrades to Client’s content management system, including plugins and themes.*
- Cloud backup of website on a daily, weekly, or monthly basis, depending on Maintenance Package purchased.*
- Recovery/restoration of website files from backups.*
- Uptime monitoring (if included in plan/package purchased).*
- Regular security scans (if included in plan/package purchased, or if the Clients site is hosted by Flawless Websites).*
*These are tasks that are done throughout the month and will be detailed in your monthly report. Some items, such as updates, only occur when necessary and when we know the update is a stable version and it is okay to proceed.
Malware, Spam, or Malicious Code
- Removal of malware, spam, and malicious code from Client’s website is available for an additional charge of $199 per incident for clients who are on a maintenance plan at the time of infection.
- Removal of malware, spam, and/or malicious code that is existing on a website when a Client purchases a maintenance plan/package will be charged at a rate of $599 for diagnosis and removal. This charge also includes a one year subscription to Premium site security scanning and protection services (provided by WordFence) (a $99 value) after removal has been done. This charge does not include working with Google or other search engines on your behalf to solve any issues your infection may have caused with their services.
Fees / Limitations on Refunds / Cancellation Fees
Client agrees to pay Flawless Websites any and all fee(s) as billed in accordance with this Agreement. The fee(s) must be received prior to the start of any Maintenance Services. THE CLIENT FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY CLIENT, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE CLIENT FURTHER AGREES TO PAY UPON CANCELLATION ANY OTHER AMOUNTS DUE TO FLAWLESS WEBSITES FOR WORK PROVIDED AT CLIENT’S REQUEST ABOVE AND BEYOND THE MONTHLY ALOTTED TIME OF MONTHLY AGREEMENT. FLAWLESS WEBSITES IS HEREBY AUTHORIZED TO CHARGE CLIENT’S CREDIT/DEBIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CLIENT TO FLAWLESS WEBSITES.
For the purposes of providing these services, Client agrees:
- To properly convey to Flawless Websites the specific content that needs to be changed or added.
- To respond and answer any questions from Flawless Websites promptly.
- To provide Flawless Websites with access to its website administration area for the purpose of providing Maintenance Services.
- To provide Flawless Websites access their web hosting account, and/or related services accounts (including domain, email, payment processor, and search services accounts), and providing active user name and password combinations for access to these accounts.
Client understands, acknowledges and agrees that:
- The amount of time allotted for updates to text, images, and other minor changes, is determined by the Maintenance plan/package purchased and will be billed in thirty (30) minute increments.
- Client understands that all work for monthly maintenance tasks will be scheduled according to Flawless Websites workflow management process. Flawless Websites workflow management process is defined and implemented at its sole discretion. In the case of a “website down” issue where the site cannot be accessed via the Internet in a web browser, this type of issue will be considered “urgent” by Flawless Websites and addressed promptly.
- Failure by Client to respond to any requests and/or answer any question(s) from Flawless Websites within 8 hours on business days, or withing 24 hours on weekends or holidays, may cause that task to be moved to the “end of the line” in Flawless Websites work queue. This may cause that issue(s) to roll over and consume effort against the subsequent month’s available maintenance hours.
- Once the time allotted in a Maintenance plan/package has been reached in any month, any remaining effort needed to address a maintenance request(s) will be rolled over and applied against the subsequent months available maintenance hours.
- All responses to maintenance requests are scheduled at Flawless Websites convenience and in accordance with its schedule.
- Client requests to have additional tasks completed that exceed available maintenance hours will be billed by Flawless Websites to Client on an hourly basis, at the rate of $75 per hour.
- Client understands that when they provide Flawless Websites with a maintenance task and the task has been completed, then they subsequently request additional or further changes to that task, or a similar task, any time used to make these subsequent changes will count first against the monthly allotment of time, and then as additional time. And additional time will be billed to Client on an hourly basis, at the rate of $75 per hour.
- Website updates do not include page redesign, adding new site features and functionality, editing or changing features and functionality, database design, database changes, programming, server systems configuration, and search engine optimization (SEO).
- CMS setup and design, plugin/module installation and configuration, or programming of things that require extensive time to set up and configure, including but not limited to audio and videos, blogs, e-commerce and payment processing, API integrations with third party services, and web forums are not considered “maintenance” changes and therefore are not included in this Maintenance Agreement. These require a separate design & development agreement.
- This Maintenance Agreement does not include training on how to use your website, WordPress, email, or any other site related tools, applications or services.
- This Maintenance Agreement does not include training on search engine optimization (SEO) or other online digital marketing tools, applications or services.
- All communications related to this Maintenance Agreement will be made during regular business hours, which are Monday through Friday from 9:00 AM to 5:00 PM (EST), except for an instance where the site is down and not accessible via a web browser connected to the Internet.
- Where Client elects to use a 3rd party for its site hosting, Flawless Websites has no control over Client’s hosting company with regards to site downtime, software or plugin incompatibilities, PHP or other compatibility issues, backup availability, security monitoring, etc.
- Flawless Websites is not responsible for Client’s email service.
- Flawless Websites is not responsible for troubleshooting issues on Clients own computer(s).
- Flawless Websites 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 web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
- Additional fees may be charged where content provided has to be typed, edited, and/or re-formatted and where the effort required exceeds allotted maintenance hours available.
- If changes are made by Flawless Websites according to Client’s information, and the changes are subsequently found to be incorrect, additional time to remedy will be first charged against allotted maintenance hours available, and then billed to Client on an hourly basis, at the rate of $75 per hour.
- Unused time is cumulative. Unused time rolls over and transfers from month to month for a rollover period of one year (12 months). After one year, any unused maintenance hours expire. A new rollover period begins each year.
- Flawless Websites is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
- Flawless Websites is not responsible for changes made to Client’s web site(s) by other parties, including the Client themself.
- During the duration of this contract, the Client agrees that Flawless Websites will be the sole provider of maintenance services for the website, and no other party will have access to or rights to change the web site. If a party, including the Client, other than Flawless Websites makes changes to the web site, any errors that are created must be repaired and will be charged for at the hourly rate specified above.
- Flawless Websites is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
- Flawless Websites will not repair Client’s website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
- Recovery or repair of Client’s website is not guaranteed.
- Availability of backups is not guaranteed.
Scheduling of Maintenance Tasks
Because of the nature of our business, we manage multiple maintenance clients, and several web design projects, at any given time. Because time is at a premium, scheduling is a priority for us. We schedule all work to maintain a workflow that promotes our business and serves the needs of our Clients. Please understand that the scheduling of a Clients tasks is totally at the discretion of Flawless Websites. The only time we “bump” one Client’s tasks ahead of another Client’s is in the case of an emergency or “urgent” request. Only issues with e-commerce checkouts not working, or where a site is totally down or offline are considered “emergency” or “urgent” issues. We will use allotted maintenance time you have contracted for in any month towards addressing emergency or “urgent” maintenance requests, in accordance with our schedule.
Additional services not listed herein will be provided for a fee of $75.00 per hour. Flawless Websites maintenance services do not include:
- Search Engine Optimization (SEO)
- Developing (Writing) New Content
- New Page Design
Client will be charged additional fees for Addktional Services at the hourly rate of $75.00 per hour (discounted fees do not apply toward this type of work). Clients who need SEO work must sign up for our SEO Services separately.
Client shall indemnify and hold harmless Flawless Websites (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Flawless Websites as a result of any claim, judgment, or adjudication against Flawless Websites related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Client to Flawless Websites (the “Client Content”), or (b) a claim that Flawless Websites’ use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Flawless Websites must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defense and all related negotiations.
Disclaimer Of All Other Warranties
FLAWLESS WEBSITES DOES NOT WARRANT THAT THE MAINTENANCE SERVICES WILL MEET THE CLIENT’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CLIENT. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, FLAWLESS WEBSITES PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
IN NO EVENT SHALL FLAWLESS WEBSITES BE LIABLE TO Client FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THERE SHALL BE NO REFUNDS. FLAWLESS WEBSITES MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
Client makes the following representations and warranties for the benefit of Flawless Websites:
- Client represents to Flawless Websites and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Flawless Websites 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 Flawless Websites and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
- Client guarantees to Flawless Websites and unconditionally guarantees that Client’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
- Client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Flawless Websites for inclusion on the website above are owned by Client, or that Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Flawless Websites and its subcontractors from any liability or suit arising from the use of such elements.
- From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce.
- Client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Flawless Websites and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of Internet electronic commerce.
The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Flawless Websites and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
Relationship Of Parties
Flawless Websites, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Client does not undertake by this Agreement, or otherwise, to perform any obligation of Flawless Websites, whether by regulation or contract. In no way is Flawless Websites to be construed as the agent or to be acting as the agent of Client in any respect, any other provisions of this Agreement notwithstanding.
Notice & Payment
Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party, mailed by certified, registered or Express mail, return receipt requested or by Federal Express. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
Agreement Binding on Successors
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Flawless Websites. Flawless Websites reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
No Inference Against Author
No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
This Agreement shall be governed in accordance with the laws of the State of Georgia. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Georgia including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
Client and Flawless Websites agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Fulton County, Georgia and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Georgia sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Georgia or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
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.