WEBSITE MAINTENANCE & SUPPORT SUBSCRIPTION AGREEMENT

Transcription

1 WEBSITE MAINTENANCE & SUPPORT SUBSCRIPTION AGREEMENT This Website Support and Maintenance Subscription Agreement ( Agreement ) is made by and between Goose Dog Designs (the Developer ) and the aforementioned client (the Client ). Developer and Client may hereafter be RECITALS referred to collectively as the parties, or individually as a party. WHEREAS, Developer is a leading provider of website solutions; and WHEREAS, Developer and Client previously entered a Website Design Agreement for the design and development of Client s website; and WHEREAS, Client desires to subscribe to the website Support and Maintenance Services Packages as further described herein. NOW THEREFORE, in consideration of the premises and undertakings set forth herein, the parties agree as follows: AGREEMENT 1. Maintenance and Support Service Packages. Client may subscribe to maintenance and support services packages ( Service Packages ), which provide various technical support services ( Services ) for Client s website as further specified in Exhibit A attached hereto. Service Package subscriptions are offered in Basic, Professional or Enterprise levels. Service Packages are available for subscription on a biannual or per-quarter basis. No separate set-up charges or other fees are charged. Client may upgrade or downgrade a Service Package subscription at any time; however, changes will only take place at the start of the following subscription period. 2. Pricing and Payment. Service Package subscription rates are set forth in Exhibit A. Client shall pay inadvance for Service Package subscriptions on-line via designated electronic payment mechanisms. Subscription fees paid for Service Packages are non-refundable for the initial subscription period, and Services shall expire if not used by Client within the subscription period in which they were subscribed. Subscriptions shall automatically renew for an additional subscription period, unless either party provides advance written

2 notice of termination prior to the end of the then current subscription period. Developer shall inform Client periodically of the Services used in each subscription period. In the event Client requests that Developer provide Services at Client facilities, Client shall reimburse Developer for any actual costs incurred for transportation, hotel, meals or other costs reasonably incurred. Developer will submit a written invoice for reimbursement of these expenses. 3. Warranty. Developer shall provide the Services to Client with the degree of skill and care associated with generally accepted industry standards. No specific outcomes are promised or guaranteed under this Agreement. Client s sole remedy for a breach of this warranty shall be re-performance of the non-conforming Services. The parties agree that the relationship established herein is nonexclusive and nothing in this Agreement will prevent Developer at any time from providing services to other parties that are similar or related to those provided hereunder. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, Developer DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. 4. Client s Responsibilities. Client is responsible for providing access to all applicable facilities, hardware, software, documents, manuals, specifications and other items that are required for the provision of Services. 5. Term and Termination. The term of this Agreement shall commence when Client s subscription payment is received by Developer and shall continue until the expiration of the Service Package term. Client may cancel a Service Package subscription upon written notice to Developer only within the first seven (7) days of the end of the previous subscription period ( cancellation period ). Client acknowledges and agrees that Service Package subscription fees are non-refundable once the cancellation period has passed. If either party fails to perform any material obligation, or violates any material term or condition of this Agreement, and such failure or violation is not cured within thirty (30) calendar days following receipt of a written default notice from the other party, then the non-defaulting party shall have the right to terminate this Agreement immediately upon written notice to the defaulting party. If either party files for bankruptcy protection, admits insolvency, makes an assignment for the benefit of creditors, or has a trustee or receiver appointed over all or any substantial portion of its assets, the other party may, in its discretion, immediately terminate this Agreement. Termination of this Agreement shall not limit either party from pursuing any other remedies available to it, including injunctive relief. 6. Intellectual Property Ownership. This Agreement grants no intellectual property rights to Client in any form. For the avoidance of doubt, Client acknowledges and agrees that any and all ideas, inventions, documents, data, programs, and/or other materials developed or produced by Developer in the performance of this Agreement (hereinafter collectively referred to as Work Product ) are and shall be the sole and exclusive property of Developer, and Developer shall have the right to use the Work Product for any purpose whatsoever without compensation to Client. Client shall not make the materials developed pursuant to this Agreement available to any third party without the prior written consent of Developer. 7. Confidential Information. During the term of this Agreement, one party may become aware of, gain access to, or receive certain information from the source party which is of a proprietary, confidential, or technical nature. If such information is considered sensitive by the source party, the source party shall designate it,

3 orally, or in writing, as Confidential (hereafter Confidential Information ). Confidential Information does not include (a) information already known to a party upon the effective date of this Agreement or which was obtained without any breach of confidentiality of other parties; or (b) information which is or becomes part of the public domain through no fault of a party. Neither party shall disclose Confidential Information to any third party for a period of three (3) years following the date of initial disclosure unless such disclosure is lawfully required by any governmental agency, is otherwise required to be disclosed by law, or is necessary in any legal proceeding establishing rights and obligations under this Agreement. Each party agrees to immediately notify the other party of any unauthorized disclosure of Confidential Information. Client agrees that Developer may include Client s name in a listing of Developer Clients. 8. Indemnification. Each party shall defend, indemnify and hold the other harmless from and against any and all claims and actions, and all costs and expenses (including reasonable attorney s fees) incidental to such claims or actions, based upon or arising out of damage to property or injury or death to persons, to the extent proximately and proportionately caused by the negligence or willful misconduct of the indemnifying party or anyone acting under that party s direction, control, or on its behalf in the course of the performance of its obligations under this Agreement. The indemnifying party shall conduct the defense and shall have control of the litigation; the indemnified party shall give prompt notice of claims and shall cooperate in defending against the claim. 9. Limitation of Liability. To the fullest extent permitted by applicable law, the total aggregate liability of Developer under this Agreement, regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise, shall be limited to the amount of fees actually paid by Client for the Service Packages giving rise to the liability. Notwithstanding anything herein to the contrary, under no circumstances will Developer be liable for incidental, consequential, indirect, special or punitive damages, including but not limited to, lost revenues, lost profits, loss of data, loss of goodwill, or delays attributable to the provision of Service Packages, from all causes of action of any kind, including contract, tort or otherwise, even if they are foreseeable or if Developer has been advised of the possibility of such damages. Client acknowledges and agrees that Developer shall not be held liable in any way for Client s decisions, purchases or actions based on the provision of advice, recommendations or analyses by Developer hereunder. 10. Force Majeure. Neither party to this Agreement shall be liable for delay or failure in the performance of its contractual obligations arising from any one or more events which are beyond its reasonable control, including but not limited to, acts of God, omissions or regulations of any government or subdivision thereof, judicial action, fire, storm, accident, war, riot, labor disputes, labor stoppages, transportation failure, communications failures or disruptions or internet failures or disruptions. Upon such delay or failure affecting one party, that party shall notify the other party and use all reasonable efforts to cure or alleviate the cause of such delay or failure with a view to resuming performance of its contractual obligations as soon as practicable. Notwithstanding the foregoing, in every case the delay or failure to perform must be beyond the control and without the fault or negligence of the party claiming excusable delay. Performance times under this Agreement

4 shall be considered extended for a period of time equivalent to the time lost because of any delay which is excusable hereunder. 11. Dispute Resolution. Developer and Client agree that any and all disputes arising out of or related to this Agreement shall be resolved by binding arbitration pursuant to the California Arbitration Act, California Code of Civil Procedure section 1280, et. seq. Any arbitration shall be conducted in San Francisco County and shall be presided over by a single neutral arbitrator who shall be a retired judge of the San Francisco County Superior Court. The cost of the arbitrator shall be split evenly between the parties. In the event of any dispute arising out of, or related to, this Agreement, each party will bear its own costs, expenses and attorneys fees. 12. Notices. All notices or other communications required or permitted to be made or given hereunder by one party to the other shall be in writing and shall be deemed to have been given: (a) when hand delivered, or (b) on the third (3rd) business day after the day of deposit in the United States mail when sent by certified mail, postage prepaid and return receipt requested to the address of the party set forth above. 13. Assignment. Neither party may assign this Agreement to a third party without the prior written consent of the other. Any attempt to assign this Agreement without the prior written consent of the other party is void and without legal effect, and such an attempt constitute grounds for termination by the other party. It is further understood and agreed that consent by either party to such assignment in one instance shall not constitute consent by the party to any other assignment. A transfer of corporate control, merger, sale of substantially all of a party s assets and the like, even though including this Agreement as an assigned asset or contract, shall not be considered an assignment for these purposes. 14. Hiring of Employees. During the term of this Agreement, and for a period of twelve (12) months thereafter, unless prohibited by law, neither party shall employ, or solicit for employment, either directly or indirectly, any employee of the other without the other party s prior written consent. 15. Miscellaneous. Developer and Client agree that each of the parties hereto is an independent contractor and that nothing in this Agreement or its performance shall be construed as creating an employer-employee, partnership, or joint venture relationship, or the promise or expectation of any of them. This Agreement shall be governed by and construed in accordance with the laws of the State of California and shall be subject to the exclusive jurisdiction of the courts in San Francisco County. If, for any reason, any provision of this Agreement shall be finally determined to be invalid, void or unenforceable by a court or regulatory body of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. No oral changes to the scope of the Agreement shall be permitted. This Agreement takes precedence over the language of any implementing Client purchase order or similar document. No change or counter-offer to this Agreement is effective unless in writing and signed by both parties. Nothing contained in this Agreement shall be construed as requiring the commission of any act contrary to law. By signing below, Client agrees to subject itself to the personal jurisdiction of the State of California, County of San Francisco, as to all legal actions arising out of or relating to this Agreement. This Agreement may be executed simultaneously or concurrently in one or more counterparts, each of which will be deemed a duplicate original but all of which together constitute one and the same agreement. No failure or

5 delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege. This Agreement is intended to benefit and shall be binding on the parties hereto and their respective legal representatives, successors and permitted assigns. EXHIBIT A: MAINTENANCE AND SUPPORT SERVICE PACKAGES 1. Service Package Options. Additional support discount $100/hour $160/hour $140/hour As of the Effective Date of this Agreement, Developer s standard rate for website development services is One Hundred Dollars ($100) per hour. With a subscription to a Professional or Enterprise Service Package, Client Service requests are given priority status for faster service. All Services performed by Developer under any Service Package shall include extensive testing after every website update or edit, a full website backup, and detailed reporting. 2. Definitions. The following Service terms shall have the meaning set forth below: Website Backup. Developer shall provide full website backups. A full website backup of Client s website includes backup of all database and files to ensure that any changes made to Client s website are not permanent. With a website backup, minor edits made by Client or any outside security threat will never permanently damage the PACKAGE FEATURES BASIC PROFESSIONAL ENTERPRISE Subscription fee $195 every six (6) months $355 every three (3) months $475 every three (3) months Full website backup Monthly Weekly Weekly Software updates Monthly Weekly Weekly Advanced security Included Included Included Website Health Report Included Included Included Website edits/updates Not included One hour per period Two hours per period website. Client s website can be restored to its former, non-damaged version instantaneously.

6 Software Updates. Software Updates consist of bug fixes to website software to ensure that Client s programming remains compatible and up-to-date, and is able to continue to function effectively with changing web browsers and devices. Advanced Security. Developer shall provide Client with website security system updates to prevent attacks from hackers, keep Client s website clear of spam and malware, and ensure it is working efficiently. Website Updates/Edits Hours. Under the Basic Package, Developer Services to update and edit Client s website at Client s direction shall be performed at the rate of One Hundred dollars ($100) per hour. With the Professional package, one (1) hour of Services by Developer shall be included per quarter in the Professional Package Price at no additional charge, and any additional work requested by Client shall be performed at the rate of One Hundred Sixty dollars ($160) per hour. Under the Enterprise Package, two (2) hours of Services by Developer shall be included per quarter in the Enterprise Package price, and any additional work requested by Client shall be performed at the rate of One Hundred Forty dollars ($140) per hour. Service Delivery. All Services shall be provided remotely (unless on-site Services are requested by Client, in which case additional charges as set forth in the Agreement will apply). Consultations between Client and Developer shall take place via telephone or . No consultation shall be provided for third party products (operating systems, databases etc.). Client Service requests may be entered by telephone, and via website. Website Health Report. At the close of every payment period, Developer will provide Client a report services performed over the previous payment period.