Website Maintenance Agreement
This Website Maintenance Agreement (“Agreement”) is hereby entered into between you, your employees and agents (collectively “Client”) and applies to the purchase of all monthly website maintenance services (hereinafter collectively referred to as “Maintenance Services”) ordered by Client.
Term and Termination
This Agreement shall be effective as of the time frame Client signs up for Maintenance Services. This Agreement may be terminated by either party upon 30 day written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by Ralph Walker Designs (i) immediately if Client fails to pay any fees hereunder; or (ii) if Client fails to cooperate with Ralph Walker Designs or hinders Ralph Walker Designs’ ability to perform the Maintenance Services hereunder.
Ralph Walker Designs agrees to provide Client with Maintenance Services as described in this Agreement. Maintenance Services include:
*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
Fees; Limitations on Refunds and Cancellation Fees
Client agrees to pay Ralph Walker Designs 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 RALPH WALKER DESIGNS FOR WORK PROVIDED AT CLIENT’S REQUEST ABOVE AND BEYOND THE MONTHLY ALOTTED TIME OF MONTHLY AGREEMENT. RALPH WALKER DESIGNS IS HEREBY AUTHORIZED TO CHARGE CLIENT’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CLIENT TO RALPH WALKER DESIGNS.
For the purposes of providing these services, Client agrees:
Client Acknowledgements – Client understands, acknowledges and agrees that:
Scheduling of Maintenance Tasks – Because of the nature of our business, we are juggling multiple maintenance clients, on top of several large web design projects, at any given time. Because time is at a premium, we don’t take on more Clients than we can handle, however, scheduling is a priority for us. We schedule all work for the month in advance to maintain a workflow that is conducive for our business and for all of our Clients. When we take on a maintenance Client they are given a set amount of time in our schedule for maintenance tasks that can be done each month that are counted towards their monthly time allotment. Please understand that the scheduling of these tasks is totally at the discretion of Ralph Walker Designs. The only time we “bump” one Client’s tasks for another Client’s place in line is in the case of an emergency. Unless a website problem interrupts your business monetarily, for instance an eCommerce site that goes down or has problems with checkouts, or it is totally down or offline, it is not considered an emergency. We will provide the amount of time you have contracted for each month towards updates, however we do it in accordance with our schedule. This is the only way we can be fair to all of our Clients.
Additional Services – Additional services not listed herein will be provided for a fee of $100.00 per hour. Ralph Walker Designs is not responsible for search engine optimization (SEO), developing new content, or writing new copy for Client. Client will be charged an additional fee for writing content, based on the hourly rate of $100.00 per hour (discounted fees do not apply toward this type of work). Clients who need SEO work done must sign up for one of our SEO Packages.
Indemnification – Client shall indemnify and hold harmless Ralph Walker Designs (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 Ralph Walker Designs as a result of any claim, judgment, or adjudication against Ralph Walker Designs 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 Ralph Walker Designs (the “Client Content”), or (b) a claim that Ralph Walker Designs’ use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Ralph Walker Designs 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 – Ralph Walker Designs 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, RALPH WALKER DESIGNS 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.
Limited Liability – IN NO EVENT SHALL RALPH WALKER DESIGNS 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. RALPH WALKER DESIGNS 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 Representations – Client makes the following representations and warranties for the benefit of Ralph Walker Designs:
Confidentiality – 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, Ralph Walker Designs 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.
Force Majeure – 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 – Ralph Walker Designs, 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 Ralph Walker Designs, whether by regulation or contract. In no way is Ralph Walker Designs 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 and 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.
Jurisdiction/Disputes – This Agreement shall be governed in accordance with the laws of the State of Florida. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Florida 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.
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.
Assignability – Client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Ralph Walker Designs. Ralph Walker Designs reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
Waiver – 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.
Severability – 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.
Disputes – Client and Ralph Walker Designs 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 Hernando County, Florida 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 Florida 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 Florida 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.
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Document Name: Maintenance Contract
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