This Agreement describes Andrew J. Talcott’s (hereinafter referred to as “Company”) specifications for any Company provided services from the date of your first order, including any future orders, but not limited to: Andrew J. Talcott’s Websites & Applications, coding, WordPress development, Advertising Management Services, Graphic Design, Print Advertising Design, Copy or Blog Writing, Pre-Written Content, Strategic Traffic Analysis Services, any Search Optimization Service, Social Media Marketing Service, Web Page or Social Network Administration Services, Any 3rd Party Application, Hosting Service (hereinafter referred to as “Services”) and defines the terms and conditions under which Company will provide such Services to Client. Company agrees to create, service, provide labor for and furnish all parts necessary to maintain Services in proper operating order subject to the following terms and conditions.
1. Term of the Agreement
1.1 This Agreement, including any immediate or future order, shall begin as documented on Sign-up form and once the electronic order is submitted.
1.2 The Company may, at its option, immediately terminate this Agreement, or temporarily suspend all of its responsibilities stated in this Agreement, for payment delinquency in any amount in excess of thirty (30) calendar days or for Client failure to perform obligations under this agreement.
1.3 The Company may, at its option, make changes to this services agreement.
2. Charges / Payment
2.1 Design, Build & Monthly Service Charges for this Agreement shall be executed electronically via email invoice notification, online payment, or recurring monthly payment. Client is obligated to notify Company of any email address change. Design, setup, and build fees are non-refundable and shall be due upon receipt of invoice. Once client has been provided their “Company” website, Monthly Services Charges are due and then one day in advance of the first day of each month. Charges for the first month of service may include a pro rata portion depending on website release date.
2.2 Additional build and/ or service costs over what is standard may stem from 1) 3rd party application research, programming, integration & education not already mentioned; not already provided or for what has been provided, but changed by the 3rd party , 2) specialized application programming not already mentioned or provided, 3) any site or site element redesign; logo or header design work beyond what is standard, 4) any on-page content creation and/ or 5) standard site on board education that has to be repeated. Additional charges of any kind will be communicated in advance and invoiced prior to billing. All hourly charges will be at standard hourly rates.
3.1 Either party may terminate this Agreement on a month-to-month basis, with or without cause. Cancellation is effective on the last day of the month in which cancellation notice was provided. As such, Client will be billed for “Company’s” service through the end of the month in which a cancellation request is submitted. All posted content and any available website design files will be made available, when requested. Requests for posted content and any available website design files must be made within 30 days of the termination date or they will no longer be available.
3.2 In the event a client setup/ build project goes on hold due to a lack of information or communication from client, or if there is a failure to communicate with “Company”, from client on the project for a period of over 90 days after project has begun the monthly service fee will either commence or the project will be considered a cancellation. In the event build fees increase during this time, client would become responsible for the difference between what was and what is now billed for those same services.
3.3 Because we are committed to billing transparency and full confirmation communication in advance of doing any work, any credit card chargeback not done through “Company” will be treated as an immediate notice of termination for all services. In the event website content or a reinstatement is requested we would require a signed agreement, reimbursement of any Credit Card Company fees and also fees for any time at hourly rates required to execute.
4. Non-Exclusive Agreement
4.1 Non-Exclusivity. Company shall retain the right to perform work of any kind for others during the term of this Agreement.
5. Open Source Software
5.1 Some products are built using open source software and code. Parts of the site coding and infrastructure are not proprietary and remain the works of the open source community.
6. Third [3rd] Party Code
6.1 Company is willing to add safe 3rd party plugin applications AS-IS at client’s request. Company shall not be liable to Client for any failure or delay of Company’s infrastructure caused by the insertion and/or use of a 3rd party code. At Client’s request and for a fee, Company will attempt to troubleshoot, research, configure, educate on, fix and/or replace a failed 3rd party code. If any 3rd party application has a cost, Company shall pass the cost along to client. Additional charges of any kind must be approved by Client.
7. DNS (Domain Name Services)
7.1 Your site is connected to Company servers via Domain Name Server [DNS] records. We are not responsible for the management and upkeep of these DNS records. If you are using a sub-domain such as blog.mysite.com, these records are managed by your third party website provider (the controller of www.mysite.com). If you switch website providers, it is up to you to ensure your DNS records are retained by your new web provider or you will lose connectivity to your site. Connection can be restored at any time with a simple record update. In the event Company has to troubleshoot or restore a break in the connection between its’ servers and the Domain Name Server caused by client; client failure to renew the domain or any 3rd party action, there would be cost. Additional charges of any kind must be approved by Client.
8. Password Security
8.1 Company makes no representation as to the security of Client’s passwords and/or personal information contained on a site. Company will not be liable for the consequences of viruses and/or hackers; however, Company shall make reasonable efforts to protect the security of the site against viruses and hackers.
9.1 It is understood by Company and Client that downtime of a site is likely during the term of operation. Company makes no representation that the operation of the products will be uninterrupted and cannot guarantee 100% up time. Company will not be liable for the consequences of any interruptions, errors, downtime or delays of Client’s sites.
10. Storage (Where applicable)
10.1 All sites include a minimum of 500MB of storage for media and content. Storage required beyond this capacity may be charged per the standard rate card.
11. Search Engine Optimization
11.1 Company does not guarantee search engine optimization, traffic, subscription or visibility with content.
12. Bandwidth (Where applicable)
12.1 3rd Party Content. As part of its services, Company may include bandwidth for serving 3rd party content on a client site. In the event Client adds media, such as video, images and/or audio, from an external site onto its site then Company reserves the right to modify its bandwidth services and/or completely remove said services from Client’s site if it is determined that said 3rd party service is affecting said site.
12.2 3rd Party Sites. In the event Client embeds media, such as video, images and/or audio, from a Company created site onto a third party site then Company reserves the right to modify its bandwidth services and/or completely remove said services from Client’s site. In the event Client requires additional media hosting, at Client’s request and for a fee Company may provide third party solutions.
12.3rd Party Site Performance. It is understood by Company and Client that 3rd party service is likely to affect page load or other content rendering provided by Company. As such, Company makes no representation and takes no responsibility for site performance in the event Client uses 3rd party services.
13. Site Technology and Ownership
13.1 Client shall have the right to download all client-created content loaded into their site at any time. This file is provided in an XML format and can be imported into any WordPress platform. In the event services are terminated, all alternative content database files will be made available by request.
14. Ownership of Intellectual Property
14.1 All right, title and interest in and to any pre-existing copyrightable works and trademarks of Client shall remain the property of Client, whether or not supplied to Company.
15. Indemnification for Client Content
15.1 As part of the Professional Services, Company may be requested by Client to include in the Project certain materials or content, including copyrights and trademarks, furnished and provided by Client.
15.2 Client agrees to indemnify and hold harmless Company for any claims, losses or damages (including reasonable attorney’s fees and costs) for any 3rd party claims that said Client materials (whether or not incorporated into the Project or used by Company) infringed upon the copyrights, trademarks, trade dress, publicity rights, privacy rights and other rights of others or are in violation of law.
16. Hold Harmless for Company Services
16.1 Client agrees to defend, reimburse, indemnify and hold Company and its employees, agents and representatives, harmless from and against any and all claims, actions, liabilities, damages, costs, expenses and fees, including reasonable legal fees (preparatory, defense or otherwise) relating to this Agreement, Andrew J. Talcott’s Products and Services, or any act or omission in the use of same.
16.2 Content Creation Services. Client agrees to defend, indemnify and hold Company and its employees, agents and representatives, harmless from and against any and all claims, actions, demands, losses, and causes of action including, but not limited to, libel claims, slander claims, patent, trademark, copyright or similar intellectual property infringement claims related to Company’s content creation services. Client further agrees to indemnify and hold Company harmless against any damages resulting from Client’s unauthorized use of its site, its content, images, graphics or related product.
16.3 Traffic Analytics and Education Consulting. Client agrees and acknowledges that the summarization and advice related to traffic analytics consulting is highly subjective and based on Company’s best efforts and opinions. Client agrees to indemnify and hold Company and its employees, agents and representatives, harmless from and against all claims, actions, demands, losses, and causes of action related to Company’s traffic analytics consulting and education consulting.
16.4 Comment Spam Blocking and Comment Moderation Software. Client agrees to indemnify and hold Company and its employees, agents and representatives, harmless from and against all claims, actions, demands, losses, and causes of action related to comment spam blocking and/or comment moderation software provided by Company to Client. Client further agrees to indemnify and hold Company harmless against any damages resulting from Client’s unauthorized use of its comment spam blocking and/or comment moderation software.
17. Force Majeure
17.1 Company shall not be liable to Client for any failure or delay caused by events beyond Company’s control, including, without limitation, Client’s failure to furnish necessary information; sabotage; failure or delays in transportation or communication; failures or substitutions of equipment; labor disputes; accidents; shortages of labor, fuel, raw materials or equipment; or technical failures.
18. Successors & Assigns
18.1 Except as provided herein, this Agreement may not be assigned or otherwise transferred without the prior written consent of the non-transferring party. In the case of any assignment or transfer which may be permitted under this Agreement, this Agreement or the relevant provisions thereof shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto. Notwithstanding any provisions in this Agreement to the contrary, the parties consent and agree that all rights, duties and obligations of this Agreement shall be fully transferable in connection with a Company acquisition or merger, or in connection with the sale of all or substantially all Company assets.
19. Independent Contractors
19.1 The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. Personnel supplied by Company shall work exclusively for Company and shall not, for any purpose, be considered employees or agents of Client. Company assumes full responsibility for the acts of such personnel while performing services hereunder and shall be solely responsible for their supervision, direction and control, compensation, benefits and taxes.
20. LIMITATION OF LIABILITY
20.1 NEITHER PARTY WILL BE LIABLE UNDER ANY SECTION OR SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY (I) INCIDENTAL OR CONSEQUENTIAL DAMAGES OR (II) COST OF PROCUREMENT OF SUBSTITUTE SERVICES.
21.1 Client represents and warrants to Company that (i) it has the right to enter into this Agreement and perform its obligations hereunder in the manner contemplated by this Agreement, and (ii) this Agreement shall not conflict with any other agreement entered into by it. EXCEPT FOR THE FOREGOING WARRANTIES, AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BOTH PARTIES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, CONCERNING OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY STATUTORY WARRANTIES OF NON-INFRINGEMENT. IN ADDITION, COMPANY MAKES NO REPRESENTATION THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE, AND COMPANY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
22. Entire Agreement
22.1 This Agreement, including any exhibits attached hereto, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. It may be changed only by a writing signed by both parties. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.