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.
CORE SERVICES INCLUDED WITH ALL WPCARE PLANS
- 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.
- Daily backup of database and files with 90-day retention
- 24/7 security and uptime monitoring
- Monthly client report detailing updates and monitoring above
- Up to 15 minutes per month of minor website support or updates (Unused monthly support time does not roll over)
Additional services may be included based on the WPCare Plan tier selected by Client. The specific services and features included with Client’s selected plan are described in Company’s then-current plan materials, subject to any modifications made in accordance with this Agreement. Services not expressly included in Client’s selected plan are outside the scope of this Agreement and may be billed separately.
SERVICES NOT INCLUDED IN CORE WPCARE
Unless specifically included as part of Client’s selected WPCare Plan tier, the following services are not included in the core WPCare services and may require an additional fee:
- 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 or themes
- Search Engine Optimization
- Domain name changes
- Integrations or support of existing integrations
- Loading or formatting of e-commerce products
- Analytics, SEO, or performance analysis and reporting
- Repair of website issues caused by Client
If a WordPress core, plugin, or theme update causes an issue, Company may restore the website to a recent backup or otherwise reverse the update when reasonably possible. Troubleshooting, repair, replacement, or redevelopment required to resolve compatibility issues, discontinued or unsupported software, third-party conflicts, or other underlying website issues is not included in the Care Plan unless specifically included in Client’s selected tier and may be billed separately.
CLIENT RESPONSIBILITIES
Client agrees to:
- Provide Company with an Administrator account on the website
- Provide login information for website domain and hosting accounts, as reasonably necessary
- Allow Company to install and maintain plugins, software, connections, or other tools reasonably necessary to provide WPCare services.
- Not deactivate, delete, alter, or interfere with tools installed or configured by Company for maintenance, backup, security, monitoring, or other WPCare services without first notifying Company.
- Provide any information, content, images, access, approvals, or other materials reasonably required for Company to perform the services included in Client’s selected plan.
- Notify Company of significant changes made to the website by Client or third parties that may affect website functionality, security, or Company’s ability to provide services.
SERVICE REQUESTS
It is Client’s responsibility to notify Company of technical issues or requested website work. Service requests must be submitted through Company’s designated WPCare request form or other designated support channel. Requests sent through email, text message, social media, or other channels may not be considered received or scheduled.
“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
In the event of a true emergency, Client should submit the service request and then email Company with the word EMERGENCY in the subject line.
Emergency designation does not guarantee immediate resolution or availability outside Company’s normal business hours.
ADDITIONAL PLAN SERVICES
Certain WPCare Plan tiers may include additional services such as website updates, periodic refreshes, website assessments, strategic recommendations, or other services as described in Client’s selected plan. These services are subject to the terms below in addition to the other terms of this Agreement.
Website updates and refresh services are limited to the scope reasonably included within Client’s selected plan. If requested work exceeds the included scope, Company may recommend prioritizing the requested work, completing remaining work at an additional charge, or scheduling it for a future service period.
Client is responsible for providing requested content, materials, instructions, approvals, and access necessary to complete included services. Delays in providing these items may delay or prevent completion of services during the applicable service period.
Included refreshes, service time, assessments, or other periodic benefits do not accumulate or roll over from one service period to another unless otherwise agreed to by Company.
Periodic services will be scheduled based on Company’s availability and the timing of Client’s submission of required materials. Inclusion of a service within a WPCare Plan does not guarantee completion on a specific date unless otherwise agreed in writing.
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 fee associated with your selected WPCare Plan tier, which is automatically charged either monthly or annually according to the selected payment schedule. Changes to Client’s selected plan tier are subject to Company’s then-current pricing, availability, and plan terms.
Any services not included in Client’s selected WPCare Plan will be billed separately at Company’s then-current WPCare client rate or at a separately quoted project fee. Payment terms for additional services will be provided at the time the work is approved.
A late fee of 10% will be assessed monthly on any unpaid balance, prorated daily, beginning immediately after payment becomes past due. 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 may be canceled and Care Plan services discontinued
- A $150 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. If Client cancels, no prorated refunds will be given, and service will continue through the end of the term in which the cancellation was made. You also authorize Company to charge your credit card or other payment method for any payments that remain outstanding.
Any unused services, sessions, refreshes, or other benefits included with Client’s selected plan must be used while that plan is active and do not have a cash value. Upon cancellation or downgrade, any unused benefits associated with the canceled or previous plan tier will be forfeited unless otherwise agreed to by Company in writing.
Company reserves the right to cancel this Agreement and discontinue services at any time. In the event Company terminates an active prepaid service term without cause, Company may provide a prorated refund for the unused portion of the term. No refund will be required when termination results from Client’s breach of this Agreement, nonpayment, misuse of services, or other violation of Company policies.
PRIVACY AND CONFIDENTIALITY
Client and Company agree to keep non-public communications and confidential business information exchanged in connection with this Agreement private, except where disclosure is reasonably necessary to professional advisors or required by law.
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 party 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’s 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.
Any recommendations, strategies, assessments, or other guidance provided as part of a WPCare Plan are based on Company’s professional judgment and the information reasonably available at the time. Company does not guarantee any specific results from implementing such recommendations, including but not limited to increases in website traffic, search rankings, leads, conversions, sales, revenue, or other business outcomes.
DISPUTE RESOLUTION
Any disputes in excess of the 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 costs, 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 Tennessee 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.
MODIFICATIONS TO AGREEMENT:
This Agreement may be modified by written agreement 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.