MASTER SERVICES AGREEMENT (v 1.0.1)
THIS MASTER SERVICES AGREEMENT (“Agreement”) governs your use of and the services provided by The Website Exchange. The Website Exchange, a California company (“Provider”), to you, the undersigned person, company, agency, or other entity (“Customer”) whose representative signs this Agreement. By signing this Agreement, you are accepting to be bound to the terms of this Agreement on the date annotated on the signature page (“Effective Date”). Provider and Customer is each a “Party” and collectively are the “Parties.”
Provider provides Website Hosting Services, domain registration, and website development services. Customer desires to obtain and Provider agrees to provide such Services as specified herein in accordance with this Agreement and the Statements of Work attached and made part of this Agreement. Customer and Provider agree that the following terms and conditions shall govern Provider’s provision of such Services and Customer’s acceptance of those Services.
TERMS AND CONDITIONS
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Provider hereby agree as follows:
Definitions. The terms have the meanings outlined below. If a term is defined and capitalized within this Agreement and is not listed in this Section 1, such term or terms have the meaning so described, which applies throughout this Agreement.
1.1 “Affiliate” means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the specified Person.
1.2 “Agreement” shall mean this Master Services Agreement, including its SOWs, and including any future SOWs executed between the Parties in accordance herewith.
1.3 “Completion Timeline” means the timeline established by the SOW or by the agreement of the Parties as to the milestones, timeline for completion, and other events required to complete the Services and provide the Deliverables contemplated by this Agreement.
1.4 “Custom Website” means the website was developed with the most input from the Customer.
1.4 “Deliverables” shall mean the software solutions, reports, work papers, plans, designs, programming, or other designated work product specified in the applicable SOW.
1.5 “Fees” shall mean Provider’s fees to be paid Provider by Customer for Provider’s performance of the Services and/or provision of the Deliverables as specified in the applicable SOW.
1.6 “Person” means an individual, corporation, limited liability company, partnership, trust, association, or entity of any kind or nature, or a governmental authority.
1.7 “Scoping” means a review of the Customer’s website or other product by the Provider in order to define the scope of future work, develop proposals, and determine the needs of the Customer.
1.8 “Services” shall mean those Services (e.g., consultative, implementation, design, programming, installation) to be provided to Customer by Provider as specified in the applicable SOW.
1.9 “Statement of Work” or “SOW” shall mean an addendum to this Agreement executed by Customer and Provider that specifies the Services to be provided to Customer by Provider, including any additional terms and conditions specific to that SOW.
1.10 “Subscription” means the Customer shall mean a monthly subscription service including a website designed the themes and layouts from the Provider’s portfolio.
1.11 “Website Hosting Services” means that the Provider hosts or otherwise provides space for the housing of a Customer’s website, access to the website via the internet, and other aspects of providing accessibility to the website by Customer and the Customer’s users. Website Hosting Services does not include email hosting.
Term and Completion Timelines.
2.1 The term of this Agreement shall be from the Effective Date of the Agreement and continue until completion of the Services or for fixed term as defined in any SOW or Completion Timeline, unless earlier terminated by either Party in accordance with this Agreement; provided however, upon such termination, this Agreement shall continue to remain in effect with respect to any SOWs made a part hereunder during the term of this Agreement until such SOWs are themselves expired and performance thereunder is completed.
2.2 Website Go Live and Access: A project is considered complete when full Services outlined in the applicable SOW are completed, final payment is received in accordance with Section 4, and project is approved and accepted by the Customer. Request for additional modifications after acceptance may be completed for a fee at Provider’s discretion. After the completion and acceptance of the project, Customer has one week to launch the website, or relay to Provider any credentials necessary to bring the website online. Failure to launch the website within one week of completion of the project may delay the go live date and may incur additional costs. All changes after the completion of the project will be subject to Provider’s standard website maintenance schedule. Account access to website and written or verbal training, as agreed to in the initial proposal, will be granted only after the final payment for the project is received by Provider.
3.1 Provider shall provide Website Hosting, website development, Scoping, or other Services as specified in the SOWs mutually entered into from time to time by and between Customer and Provider and attached hereto as an addendum.
3.2 Provider shall provide scheduled website maintenance, updates, and training as outlined in the SOW. Provider schedules these services during regular business hours on weekdays from 9am – 4pm. Customer agrees to fees specified in subsection 4.3 and 4.6 for the website maintenance, updates, and training services. Website maintenance may include any additions or modifications to the website done by the Provider or Provider’s Affiliates. Additional consulting and training time may be subject to additional billing per Section 4.6.
3.3 Provider will monitor the Customer’s current disk storage and bandwidth. If usage exceeds the amount allocated in the SOW, Provider will contact the Customer in an attempt to arrange for additional Services. If Customer does not respond, or is unable to be reached, Provider shall have the right to take corrective actions for exceeding service allocations. Such actions may include assessing additional charges, increasing, or changing Services, temporarily discontinuing Services, or terminating this Agreement. If the Customer feels that more disk storage is required, it is the customer’s responsibility to contact Provider to discuss options for increased disk storage.
3.4 Provider does not provide email hosting services in any form. Customer is responsible for obtaining separate email hosting services if such service is desired or required.
3.5 Third-Party Service Providers. Customer acknowledges and agrees that from time to time Provider may use personnel that are not Provider employees or Services, such as web hosting, that are provided by third parties under the direction and supervision of the Provider.
Fees and Payments
4.1 Custom Website Development: Customer shall pay a 50% down payment on all custom website development and design services and a 100% down payment on all consulting-related Services included in a SOW. Final payment is due within 15-days of completion and/or prior to website go-live and Access as described in Section 2.2 and the release of any assets to the Customer when Provider is not providing Website Hosting Services. Website Hosting services may be paid monthly or annually per Section 4.5 below. Customer agrees with full understanding under this Agreement if the services are terminated due to no fault of the Provider, excluding force majeure, the down payment is non-refundable.
4.2 Subscription Services: Provider requires a down payment of the first month for subscription services and full payment for any add-ons prior to development. Provider requires Monthly Auto-Pay for subscription services. At Provider’s discretion, monthly services may be invoiced via a paper statement mailed at the beginning of each calendar month. A paper statement fee will be added to monthly invoices. Payment for monthly invoicing is due by the 15th of each month.
4.3 Consultation / Development: Provider shall be billed in 15-minute increments for website development and addition of the new website features at the rate of listed in Section 4.6(c). Invoices for consultation/development services are due monthly.
4.4 Scoping: Provider requires payment in full (100% down payment) for all Scoping Services.
4.5 Website Hosting Service: Billing for Website Hosting Service will commence when an order form including hosting service is submitted. The following options are available for website hosting service:
(A) Annual invoicing. Provider will mail an annual invoice for the upcoming calendar year, January 1 – December 31, to accounts not on monthly auto-pay. Payment is due by January 15, or the account will receive monthly paper invoicing. New hosting service accounts will receive a prorated annual invoice for the remainder of the current year.
(B) Monthly Auto-Pay. Hosting service fees will be automatically charged to your credit card on the 1st day of each month.
(C) Monthly Paper Invoicing. Provider will mail an invoice for hosting service each month. A paper statement fee will be added to monthly invoices. Payment for monthly hosting invoicing is due by the 15th of each month.
Provider does not offer monthly email invoicing for hosting service. Termination of Website Hosting Services with Provider requires a 30- day advance notification via phone, email, or postal mail. If a customer chooses to activate a domain name through Provider, any such domain name registration will expire upon termination of Website Hosting Service. Provider reserves the right to change the rates by notifying customers 60 days in advance of the effective date of the change. Provider reserves the right to cancel Website Hosting Service at any time. Refunds will not be issued in the case that a customer cancels their Website Hosting Service before the period for which they have pre-paid.
4.6 Provider shall invoice Change Orders and Customer shall pay in full by down payment for the following services according to following schedule:
Timeline change: $150.00
Each Additional Feature: Cost of the Additional Feature plus a fee of $150.00.
Additional development time at $150.00 per hour.
4.7 Payment is due 15 days after the date of an invoice for all services. Accounts are in default if payment is not received 20 days after the invoice date. If customer pays by check that does not clear, the customer is immediately in default and subject to a returned check charge of $35. Accounts unpaid 60 days after date of invoice will be subject to service interruption. Such interruption does not relieve you from the obligation to pay the monthly charge. Accounts in default are subject to a late fee of $10.00 or 10%, whichever is greater. If your state law does not allow for late fees, penalties, or returned check charges applicable in this Section, then the maximum allowable rate for your state will be charged. If you default, you agree to pay Provider its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights under these Terms and Conditions.
4.8 Provider reserves the right, upon reasonable notice to the Customer, to adjust the prices included in Section 4 of this Agreement once per year. The Customer agrees that consent to such price increases does not require the consent of Customer.
4.9 ALL DOWN PAYMENTS ARE NON-REFUNDABLE UPON RECEIPT AND EXECUTION OF THIS AGREEMENT. At the sole discretion of the Provider, and upon the Customer signing a separate termination and release agreement, the Provider may provide a refund for payments received upon termination of this Agreement in accordance with Section 7.
Ownership of Materials
5.1 Custom Websites: The copyright on a custom website is transferred to the website purchaser after full payment has been received for the website. If copyright transfer has been processed, customer may receive a full backup of their website upon termination. The backup will include the entire file structure in a .zip file and, if applicable, an SQL file containing the MySQL database dump.
5.2 Subscription: WordPress login credentials are not available to Customers who purchase Subscription or layout websites. The copyright on Subscription website development is transferred to the website purchaser after two (2) years of active Subscription service. If a Subscription website is paid for in advance, the copyright is transferred upon full payment for website development. If copyright transfer has been processed, Customer may receive a full backup of their website upon termination. The backup will include the entire file structure in a .zip file and, if applicable, an SQL file containing the MySQL database dump. Additionally, Subscription customers must satisfy the two (2) year active service requirement in order to request administrative access under Section 8.
5.3 Provider as part of Customer’s website development project used proprietary development methods, including Provider’s core theme. Use of Provider’s proprietary development content and distribution or use of Provider’s theme, including sharing theme files with other website developers, is strictly prohibited and a violation of this Agreement and Section 5.4 below.
5.4. Confidentiality and Non-Disclosure.
5.4.1 “Confidential Information” shall mean proprietary information and materials provided by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), which at the time of disclosure is designated as confidential by the Disclosing Party or which by its nature would be understood to be confidential information. This includes, but is not limited to, intellectual property, information concerning subsidiaries, affiliates and contractors, business plans, customers, employees, trading partners, trade secrets, new products and concepts, proprietary systems and technologies, financial data and operating procedures, and patient information regardless of form or media.
5.4.2 Information provided by the Disclosing Party shall not be considered Confidential Information if the Receiving Party can demonstrate the disclosed information: (a) was known to the Receiving Party prior to disclosure by the Disclosing Party, (b) is or becomes publicly known in the public domain, (c) is given to the Receiving Party by a third-party who has the right to disclose the information, (d) is independently created or developed by the Receiving Party, or (e) is required to be disclosed by law or court of competent jurisdiction.
5.4.3 Provider and Customer agree that the Confidential Information made available to the Receiving Party by the Disclosing Party shall be used by the Receiving Party solely for the purposes set forth in this Agreement and the applicable SOWs, and that no license or grant, express or implied, in the Confidential Information is made by the Disclosing Party. Unless otherwise expressly authorized by either Party or required by law, all Confidential Information shall be kept in strict confidence. Provider and Customer shall execute similar confidentiality and non-disclosure agreements with all officers, employees, agents, consultants, and sub-contractors that may have access to Confidential Information and agree to be responsible for any breach of this Section 5.
6.1 Customer agrees to review in full all SOWs for website development, website design, and other Services provided by Provider.
6.2 Customer acknowledges and Provider reserves Provider’s right to refuse project add-ons or invoice appropriately to account for additional time and materials required by change orders.
6.3 Customer agrees to abide by the schedule set, to review the project timeline and adhere to the dates for Deliverables on its part. If customer fails to meet the scheduled deadlines that result in a delay of project, or risk putting the project on hold, Provider may invoice the Customer for additional resources required or costs incurred should any delay interrupt Provider’s scheduled workflow. The Provider may also, by giving written notice, terminate this Agreement for Customer’s failure to adhere to the requirements this Section 6.3.
6.4 Customer agrees and acknowledges that if Customer causes a delay of 30 days or more on any project or aspect of any project by its failure to provide approval or information to move the project along, to otherwise perform its obligations under this Agreement, or failure to meet deadlines included in any Completion Timeline, the Provider shall deem the project as inactive (“Inactive Project”). Any Inactive Project shall be placed on hold and Provider shall cease all performance of Services in support of the Inactive Project. In order to resume Services, Customer shall pay a fee for any Inactive Project on hold between 30 and 90 days (“Reactivation Fee”). Any Inactive Project on hold for more than 90-days shall subject to a Reactivation Fee and a new Statement of Work with updated Fees and Completion Timeline as provided for by the Provider. Customer shall be responsible for paying any applicable Reactivation Fee, updated down-payment, or other fees prior to Provider performing any Services on reactivated projects.
6.5 Customer is responsible for all content posted or stored on its web hosting space. Provider exercises no control over the content or information contained on the servers used for Website Hosting Services. Provider will not be responsible for any direct, indirect, or consequential damages which may result from the use of this service by its customers or any other related or unrelated third parties. Provider is not responsible for backup or recovery of data in case of loss on the customer’s behalf. There are no warranties expressed or implied for the services Provider provides or the software used by Customer.
6.6 All services provided may be used only in accordance with applicable law. Storage, documentation, transmission, or presentation of information or data that violates International, US Federal, state, or local law is strictly prohibited. This includes, but not limited to, copyrighted or plagiarized material, racist or threatening material, material that is obscene, pornography, “adult only” content, or material protected by other statute. Provider prohibits Website Hosting Service customers from participating in pirating unlicensed software, pirating mp3 files, listing hacker programs or archives, Hosting warez websites, pornography. Use of Provider’s Website Hosting Services to send Unsolicited Commercial E-mail (UCE or “SPAM”) is strictly prohibited and may be cause for immediate account termination. The Customer agrees to pay Provider any reasonable expenses, including attorney and system administration fees, incurred in responding to complaints and damages caused by the action of sending UCE.
6.7 Customer agrees that any access to other networks connected to Provider’s network must comply with the rules appropriate for that other network.
6.9 Customer agrees to keep all user IDs and access codes/passwords confidential. Sharing of account information and passwords is strictly forbidden. If Customer’s user ID or password has been compromised, Customer agrees to contact Provider immediately via e-mail or telephone.
Cancellation or Termination.
7.1 Website Hosting Services. Provider requires a 30-day notice prior to canceling a Website Hosting Service account.
7.2 Subscription Services. Whereas the cost of development is broken down into monthly payments rather than an upfront development charge, a one-year minimum contract is required. If service is cancelled early, the final balance on remaining months of service is due. Two years of consecutive service must be paid for in order to be eligible to obtain copyright transfer under Section 5.2 or to request administrative access under Section 8. Upon cancellation, you will be sent a bill with your final balance (up to 30 days after notification) after your cancel request. At the time of cancellation all website files will be deleted from our server; you are responsible for requesting a backup of these files should you need them for future use.
7.3 Termination by Provider. Provider may choose to terminate this agreement subject to subsection 6.3 by providing written notice of termination. Provider may also choose to terminate this Agreement if Customer commits a breach of material term. Provider may choose to offer a partial refund contingent upon Customer agreement not to pursue any action against the Provider or make derogatory statements about Provider on any social media and/or review websites. Under no other circumstances, unless expressly stated as part of a SOW or this Agreement, shall a Customer be entitled to a refund of monies paid for Services.
8.1 Provider uses a WordPress content management system that runs on open source code. Provider ensures the security of the website as part of the services and updates any plugins Provider develops. To prevent malware installation on our servers, full administrative access to a WordPress installation on Provider’s hosting services will not be granted to customers. Customers may request access to specific features of a website, and access may be granted at Provider’s discretion.
8.2 If Customer requires administrative access to a website or any specific features of any website, the Customer will be required to sign an Administrative release, the contents of which shall, at a minimum, include the following terms and conditions:
8.2.1 Provider produces custom developed websites for Customers and granting administrative access to the WordPress installations allows a user to install third-party plugins and modify core files in Provider’s chosen theme. Customer understands that use of third-party plugins, and/or modification of Provider’s theme files, may conflict with Provider’s custom programming and could cause Customer’s website to function poorly. Customer by assuming administrative rights accepts the responsibility to ensure that all new programming introduced to the website through plugin installation will be compatible with our customer website development.
8.2.2 Customer understands and acknowledges once administrative user access is granted to the Customer, the Provider is released from responsibility of vetting and monitoring third-party plugins. Customer understands and agrees with gaining administrative user access it may install third-party plugins or change the secure password to another of its own choosing thereby releasing Provider from liability for vulnerabilities.
8.2.3 Customer understands and agrees that a grant of administrative access releases Provider from support for any Custom Website developed by the Provider. Customer will have full access to change website functionality. Provider will no longer provide free support for features that were previously handled by Provider’s development team. Further support inquiries are subject to standard hourly development rate. Malware removal from insecure user passwords or third-party plugin installation is billed at 150% Provider’s then hourly rate.
Choice of Law
9.1 Provider’s principal place of business is located in Anoka, Minnesota. This Agreement will be performed in and governed by the laws of the State of Minnesota and any dispute or claim under this Agreement shall be brought in a court of competent jurisdiction in Anoka County, Minnesota. Any claims or legal action arising out of this Service Agreement must be instituted within one year after the claim or cause has arisen. Provider reserves the right to discontinue service for violation of any of the conditions of this service Agreement.
9.2 All claims, disputes, and controversies arising out of or in relation to the performance, interpretation, application, or enforcement of this agreement, including but not limited to breach thereof, shall be referred to mediation before, and as a condition precedent to, the initiation of any adjudicative action or proceeding, including arbitration.
10.1 Except for Customer’s payment obligation to Provider, neither Party shall be liable to the other for any delay, service interruptions, or inability to perform its obligations under this Agreement if such delay or inability arises from an act, event, or cause beyond its reasonable control. In the event of such a delay or inability to perform, the time for performance shall be extended for a period of time at least equal in length of the delay; provided, however, that if any such delay or inability lasts for more than 180 days, either Party may terminate this Agreement by written notice to the other.
Indemnification and Limitation of Liability
11.1 It is understood by the Parties that under the terms of this Agreement, Provider may provide ideas, recommendations, and certain Services (as identified in the applicable SOW) to Customer, and Customer shall be responsible for how Customer subsequently uses those ideas, recommendations, and Services. Each Party shall be liable only for damages that might arise from the performance of its own responsibilities created herein.
11.2 Customer shall indemnify, defend, and hold harmless Provider and its officers, employees, partners, agents, principals, and sub-contractors, from any and all losses, liabilities, and claims, including costs and expenses, arising out of or resulting from Customer’s subsequent use of Provider’s ideas, recommendations, Services, or other work provided to Customer by Provider under this Agreement. The Customer agrees to indemnify and hold Provider harmless from any claims resulting from Customer’s use of Provider’s services that damage the Customer or another party.
11.3 EXCLUSIVE REMEDY AND LIMITATION OF LIABILITY. UNLESS FURTHER LIMITED ELSEWHERE IN THIS AGREEMENT, THE ENTIRE LIABILITY OF PROVIDER, AND CUSTOMER’S EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), WILL NOT IN THE AGGREGATE EXCEED THE LESSER OF (a) THE FEES PAID TO PROVIDER BY CLIENT PURSUANT TO THE SOWS (FOR WHICH SUCH SERVICES GAVE RISE TO THE LIABILITY) FOR THE SIX (6) MONTHS PRIOR TO THE MONTH IN WHICH THE MOST CURRENT EVENT GIVING RISE TO THE LIABILITY OCCURRED, OR (b) THE FEES PAID TO PROVIDER BY CLIENT PURSUANT TO THE SOW(S) FOR WHICH SUCH SERVICES GAVE RISE TO THE LIABILITY.
11.4 DISCLAIMER OF CERTAIN DAMAGES. IN NO EVENT SHALL PROVIDER BE LIABLE FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, REVENUES, PROFITS OR SAVINGS, OR LOSS OF OR DAMAGE TO CLIENT DATA FROM ANY CAUSE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.1 This Agreements constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
12.2 Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
13.1 If any provision or part-provision of this agreement is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
13.2 If any provision or part-provision of this agreement is deemed deleted under the clause 12.1, the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.1 Provider warrants that all Services shall be performed by personnel with relevant skill sets, familiar with the subject matter for the SOW, in a professional, competent, and workman-like manner.
14.2 The Provider warrants that the website will perform substantially in accordance with the website specification for a period of 90 days from Acceptance. If the website does not perform, the Provider shall, for no additional charge, carry out any work necessary in order to ensure that the website substantially complies with the website specification.
14.3 The warranty set out in Clause 14.2 shall not apply to the extent that any failure of the website to perform substantially in accordance with the website specification is caused by the website software or any materials or by the Customer’s installation of third-party plugins or other modifications to the website not performed by the Provider.
14.4 This agreement sets out the full extent of the Provider’s obligations and liabilities in respect of the supply of the services. All conditions, warranties or other terms concerning the services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
14.5 WARRANTY DISCLAIMER. UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, ALL WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE REGARDING THE SERVICES AND DELIVERABLES ARE HEREBY DISCLAIMED AND EXCLUDED. PROVIDER DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR WILL PERFORM, OR BE PERFORMED, WITHOUT ERROR OR INTERRUPTION, AND PROVIDER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
15.1 All notices, requests, demands or other communications to either Party shall be in writing and will be deemed to have been duly given if sent by electronic mail (email) to the addresses provided by each Party, or if personally delivered. If electronic mail or personal delivery is impractical, notice may be sent by overnight courier or mailed with package tracing capability to the other Party at the address or addresses provided by either Party.
IN WITNESS WHEREOF, and intending to be legally bound, Provider and Customer have executed this Agreement on the Effective Date.