This service agreement (the “Agreement”) is made and entered into between Chalk & Apples LLC, DBA Kristen Doyle Web Design, (“We”, “Us”, or “Company”), a Limited Liability Corporation located in Tennessee and the client (“You” or “Client”) upon submission of a WPCare Plan order (collectively, the “Parties”). The date of order submission shall serve as the effective date of this Agreement.
By placing an order for a WPCare Plan, you agree to retain us for website maintenance and agree to the terms and conditions as set forth in this Agreement.
ALL CARE PLANS INCLUDE:
- Weekly checks and updates to WordPress Core, Plugins, Themes and Security
- If after updates to WordPress Core, WordPress Plugins or WordPress Themes are performed it is determined that one or more of the updates caused problems for the overall functioning of the website, then the site will be ‘rolled back’ to the state before the updates were performed using the latest website backup. Company will then contact the Client to discuss options to remedy the issue.
- Weekly checks and updates to WordPress Core, Plugins, Themes and Security
- Daily backup of Database and Files
- 24/7 security and uptime monitoring
- Monthly client report detailing updates and monitoring above
ALL CARE PLANS DO NOT INCLUDE:
- Addition or editing of pages, posts, forms, menus, or plugins
- Addition of new features to the website or modification of existing features
- Changes to the design of the website
- Installation of new WordPress plugins
- Installation of new WordPress themes
- Search Engine Optimization
- SSL certificate installation and maintenance
- Domain name changes
- Integrations or support of existing integrations
- Repair of website issues caused by Client
- Loading or formatting of e-commerce products
- Interpretation of Google Analytics, Google Search Console, or Google Page Speed Insights
- Repair of website issues caused by Client
Any work required to remedy an issue where a change or update caused problems to the overall functioning of the website will be discussed with you beforehand. Work expected to take more than a few minutes will be charged separately at your discounted hourly rate.
CLIENT RESPONSIBILITIES
Client agrees to:
- Provide Company with an Administrator account on website
- Provide login information for website Domain and Hosting
- Allow installation of Company’s website maintenance plugin
- Not deactivate, delete or alter Company’s website maintenance plugin
- Allow installation of an approved security plugin, if one does not already exist
- Not deactivate, delete or alter the approved security plugin
SERVICE REQUESTS
It is Client’s responsibility to notify Company of any technical issues on the website and request service to remedy issues. Company will carry out work only where a written request is provided in the form on the client’s website dashboard and in the WordPress Care Plan Portal. In the event of a true emergency, Client should email Company with the word EMERGENCY in the subject line after submitting the request.
“Emergency” Service Requests are defined as follows:
- Hack or disaster recovery request
- Errors that render the site inaccessible (502, 504, White Screen of Death, etc.)
The following Service Requests are NOT considered an “Emergency”:
- PHP errors where the site is still accessible.
- Changes to existing website content including text, images, pages, forms, menus etc.
- Slow load times
- Website Login Issues
PAYMENT AND FEES
In consideration of the provision of the Services by us and the rights granted to you under this Agreement, you will pay the agreed-upon Care Plan fee, which is automatically charged either monthly or annually according to the selected payment schedule. Any services not covered under the Care Plan will be billed at the discounted rate of $125 per hour, with payment due within 7 days of invoicing.
A late fee of 10% will be assessed monthly on any unpaid balance, prorated daily, beginning immediately after payment becomes past due, in accordance with Tennessee state law. In the event of any payment failure:
- For recurring Care Plan payments, if automatic payment fails, we will attempt to process the payment multiple times over a period of approximately 14 days. If payment remains unsuccessful after these attempts:
- Your subscription will be automatically canceled
- A $50 reinstatement fee will apply to reactivate services
- New subscription terms and current rates will apply upon reactivation
- Three instances of payment failures requiring multiple retry attempts within a 12-month period will result in mandatory annual prepayment for continued service
- For additional service invoices, if payment is not received within 7 days:
- All ongoing work will immediately cease until payment is made
- Care Plan services may be suspended without notice
- Recurring subscription charges will continue to accrue during suspension
- Services may be terminated if payment remains outstanding for 30 days
Payment to us of such fees shall constitute payment in full for the performance of the Services. We reserve the right to require annual prepayment or alternative payment arrangements for accounts with a history of payment issues.
CANCELLATION
This agreement remains in effect until either you or Company cancels it. You agree to a minimum commitment of three (3) months before you may cancel your membership. After this period, you may cancel at any time by providing 14 days’ notice via email. No prorated refunds will be given, and service will continue through the end of the term in which the cancellation was made. Should you decide to cancel this agreement, you acknowledge that that no refunds will be given on amounts you have already paid. You also authorize Company to charge your credit card or other payment method for any payments that remain outstanding.
Company reserves the right to cancel this agreement at any time, for any reason, and without prior notification. Should Company decide to cancel this agreement, you will be sent a cancellation notice via email.
PRIVACY AND CONFIDENTIALITY
Client and Company agree all emails and other correspondence are to remain private. NO terms of this contract are to be shared with anyone other than parties involved. Pricing is strictly confidential.
Company understands that the Client may be providing confidential information about their business throughout the course of the project and agrees not to disclose that information to any third or utilize it in any way without express consent from the Client. Company is responsible for safeguarding confidential client information such as account numbers, passwords and license keys.
CONFIDENTIAL AND PROPRIETARY INFORMATION
Each party acknowledges that information disclosed to it by the other in connection with this agreement is confidential and proprietary and that it shall remain the property of the disclosing party. Each party shall treat all information from the other as confidential and proprietary. The receiving party shall take all reasonable and necessary precautions to prevent such information from being made known or disclosed to any person or entity except in accordance with this engagement. However, if the receiving party is required by legal process or action of government agencies to disclose any information, it may do so. The receiving party shall promptly notify the other of such requirements so that the other may take whatever action it deems appropriate to protect such information against disclosure.
Confidential information does not include information, technical data or know-how which:
- Is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; or
- Prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party or is approved for release by the disclosing party.
Company shall not be precluded from using data regarding Client received during the performance of this engagement in materials published by Company provided that Client is not identified nor identifiable as the source of the data.
Client shall treat as confidential all information, records, computer files and documents of Company and handle and dispose of them in the same fashion as required of Company.
INDEPENDENT CONTRACTOR
It is understood and agreed that Company is acting as an independent contractor in the performance of the services hereunder, and nothing herein contained shall be deemed to create an agency relationship between Company and Client.
CODE OF FAIR PRACTICE
Company warrants and represents that, to the best of their knowledge, the work assigned hereunder is original and has not been previously published, or that consent to use has been obtained on an unlimited basis; that all work or portions thereof obtained through the undersigned from third parties is original or, if previously published, that consent to use has been obtained on an unlimited basis; that Company has full authority to make this agreement; and that the work prepared by Company does not contain any scandalous, libelous, or unlawful matter. This warranty does not extend to any uses that Client or others may make of Company’s product that may infringe on the rights of others. Client expressly agrees that it will hold the Company harmless for all liability caused by the Client’s use of the Company’s product to the extent such use infringes on the rights of others.
WARRANTY AND LIMITATION OF LIABILITY
Client warrants that Company’s use of any and all materials furnished by Client hereunder will not violate or conflict with any U.S. intellectual property rights of any third persons including, but not limited to, copyrights, patent and trademarks. Company warrants that the deliverables and all work products created for and provided to Client by Company will not violate or conflict with any U.S. intellectual property rights of any third persons including, but not limited to, copyrights, patents and trademarks. Company further warrants that all services will be performed in a professional and workmanlike manner. Company makes no warranty with respect to third party rights in any materials furnished to Company by Client. Except as set forth in this paragraph, neither party makes any express or implied representation or warranties, including–but not limited to–implied warranties of merchantability and fitness for a particular purpose.
Neither party shall be liable hereunder for special, indirect, consequential or incidental losses or damages of any kind or nature whatsoever, including but not limited to lost profits, lost records or data, lost savings, loss of use of facility or equipment, loss by reason of facility shutdown or non-operation or increased expense of operations, or other costs, charges, penalties, or liquidated damages, regardless of whether arising from breach of contract, warranty, tort, strict liability or otherwise, even if advised of the possibility of such loss or damage, or if such loss or damage could have been reasonably foreseen.
Except as otherwise expressly provided herein, damages shall be Client’ exclusive remedy hereunder and Company’s liability hereunder, regardless of the form of action, shall not exceed the total amount paid for services under this agreement. Company’s liability shall not be so limited with respect to injuries to persons or damage to tangible property arising out of the negligence or willful misconduct of Company or its subcontractors.
While performing tasks related to this contract Company cannot accept liability for losses caused by the unavailability, malfunction or interruption of the Client’s website. Company cannot guarantee that its work will be error-free and so Company also cannot be liable to the Client or any third party for damages, including lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate this website and any other web pages, even if the Client has advised Company of the possibilities of such damages.
No action, regardless of form, arising under this Agreement, may be brought more than one year after the cause of action has arisen, except that an action for nonpayment may be brought within one year after the date of the most recent payment.
DISPUTE RESOLUTION
Any disputes in excess of maximum limit for small-claims court arising out of this Agreement shall be submitted to binding arbitration before a mutually agreed-upon arbitrator pursuant to the rules of the American Arbitration Association. The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof. Client shall pay all arbitration and court cost, reasonable attorney’s fees, and legal interest on any award of judgment in favor of the Company. All actions, whether brought by Client or by Company will be filed in Company’s state/county of business/residence. This contract is held accountable to the legal system of California and any applicable statutes held therein.
ENTIRE AGREEMENT
This agreement is the entire agreement between the parties with respect to its subject matter and there are no other representations, understandings or agreements between the parties relative to such subject matter. No amendment to, or change, waiver or discharge of any provision of this agreement shall be valid unless in writing and signed by any authorized representative of the party against which such amendment change waiver or discharge is sought to be enforced.
MODIFICATIONS TO AGREEMENT:
This Agreement may be modified by written agreement, verbal agreement between the parties, or through a course of conduct demonstrating mutual assent to the changes. Company will provide notice of any modifications, and Client’s continued use of services following such notice shall constitute acceptance of the modifications. All modifications shall have the same effect as the original Agreement terms, with original terms not specifically modified remaining in full effect. Client may request a current copy of the Agreement terms at any time.
ACCEPTANCE OF AGREEMENT
BY PLACING THIS ORDER, CLIENT AGREES THEY HAVE THOROUGHLY READ THROUGH THIS CONTRACT, AND UNDERSTAND + AGREE TO ALL ITS PARTS.
