Left Coast Creative® agrees to provide Client with Maintenance Services as described in this Agreement. Maintenance Services include:
- Updates to content (text, images, and other minor changes) on Client’s website pages.
The amount of time dedicated towards these tasks each month will be determined by the Maintenance Package purchased by Client at the time of signup.
- Any website support requests above and beyond what is outlined in package, or WordPress® questions requiring a response by Left Coast Creative® will count towards the monthly allotted time.
- Updates to Client’s content management system, including plugins and themes.*
- Backup of website on a daily, weekly, or monthly basis, depending on Maintenance Package purchased.*
- Recovery of website from backups.*
- Uptime monitoring (if included in package purchased).*
- Regular security scans (if included in package purchased).*
*These are tasks that are done as needed throughout the month. Some updates only occur when necessary and when the update is confirmed to be a stable version.
Fees; Limitations on Refunds and Cancellation Fees
Client agrees to pay Left Coast Creative® 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 the Client, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. The Client further agrees to pay upon cancellation any other amounts due to Left Coast Creative® / Scott Norton Design for work provided at Client’s request above and beyond the monthly allotted time of monthly agreement. Left Coast Creative® 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 Left Coast Creative®.
Client Agrees – For the purposes of providing services:
- To properly convey intended updates to Left Coast Creative®.
- To promptly answer any questions from Left Coast Creative® with regard to task work on website.
- To provide Left Coast Creative® with proper access to Client’s website for creating new pages, and making changes for the purpose of providing Maintenance Services.
- To provide Left Coast Creative® direct access to Client’s web hosting account, providing active user name / password combinations for access to the server via FTP, and assuring that ‘write permissions’ are in place on hosting provider.
Client Acknowledgements – Client understands, acknowledges and agrees that:
- The amount of time allotted for updates to text, images, and other minor changes, is determined by the Maintenance Package purchased and is billed in fifteen (15) minute increments.
- All work for monthly maintenance tasks will be scheduled according to Left Coast Creative® workflow. We maintain sites for many Clients; therefore all website task work that counts towards the monthly time allotment is done on a first come first serve basis - except in case of a total website crash, which would be considered an “emergency.”
- Client failure to answer a critical question for the completion of a task within 5 business days may cause that task to be “bumped” and moved to the “end of the line” in our work queue. Depending on the time of month, this could cause that task to roll over into the next month’s update sequence.
- Once the Maintenance Package time allotment has been reached for the month, any unfinished tasks on Client’s website will be rolled into the next month’s update sequence.
- Client requests for service above and beyond the monthly time allotment and to be completed in the same month are billed on an hourly basis @ $100 / hour.
- Client requests for changes to a completed task will count towards the monthly time allotment.
- Website updates exclude, image editing, graphic design, graphic editing, copywriting, database design, database changes, programming, search engine optimization, etc. These are separate services and are billed as such.
- CMS design, integration of plugins that require intensive configuration, programming, or add-ons (such as widgets) that require extensive set up time, including but not limited to blogs, shopping carts, API integrations with third party services, and web forums are not considered “minor” changes and therefore are not included in any Maintenance Agreement. These require a separate design or development agreement.
- Maintenance Agreement does not include training on how to use your website, WordPress, or email. Training is a separate service and is billed accordingly.
- Maintenance Agreement does not include training on search engine optimization (SEO) or other online digital marketing.
- Left Coast Creative® has no control over your hosting company with regard to server downtime, software incompatibilities, PHP compatibility issues, etc.
- Left Coast Creative® is not responsible for Client’s email issues or troubleshooting problems on Client’s local desktop. We are your web publisher, not your IT Dept.
- Left Coast Creative® has no control over the policies of search engines or directories with regard to the type of sites and/or content that they accept now or in the future. Client’s web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
- Maintenance Services monthly time allotments are strictly month to month. Unused time does not “roll over” to the next month.
- Left Coast Creative® is not responsible for the clarity or accuracy of Client’s content. Editing services, such as rewriting sentences, restructuring paragraphs, checking for typos, misspellings, etc. are considered Copywriting, which is a separate service and billed accordingly.
- Left Coast Creative® is not responsible for changes made to Client’s web site(s) by other parties, including the Client.
- For the duration of this contract, Client agrees that Left Coast Creative® will be the sole provider of maintenance services to the website(s). If any party other than Left Coast Creative®, including the Client, makes changes to the web site then any errors created and must be repaired will be charged for at $150 / hour.
- Left Coast Creative® is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
- Left Coast Creative® will not repair Client’s website(s) found to have been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
- Left Coast Creative® cannot guarantee recovery or repair of a crashed or compromised website. While we perform routine backups and make every effort to maintain stable and consistent websites, there are technological limits and occasionally unforeseen circumstances that may prevent the successful recovery of a damaged website.
Scheduling of Maintenance Tasks – Scheduling is a priority for Left Coast Creative®. We maintain a workflow conducive to our business and that balances the needs of all of our Clients. Maintenance tasks are allotted a set amount of time in our schedule and prioritized as required to achieve our monthly goals. Therefore, scheduling at the sole discretion of Left Coast Creative®.
Additional Services – Additional services not listed herein may be provided at an additional cost.
Indemnification – Client shall indemnify and hold harmless Left Coast Creative® / Scott Norton Design (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 as a result of any claim, judgment, or adjudication against Left Coast Creative® / Scott Norton Design 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 Left Coast Creative® (“Client Content”), or (b) a claim that Left Coast Creative® / Scott Norton Design’s use of the Client Content infringes the intellectual property rights of a third party.
Disclaimer of All Other Warranties – Left Coast Creative® cannot warrant that the maintenance services will meet the Client’s expectations or requirements. All risks as to the quality and performance of the website is the sole responsibility of the Client. Except as Otherwise specified in this agreement, Left Coast Creative® provides all services “as is” and without warranty of any kind. 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 distributions 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 Left Coast Creative®/ Scott Norton Design 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. Left Coast Creative® 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 Left Coast Creative®:
- Client unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Left Coast Creative® for inclusion on the website above are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Left Coast Creative® / Scott Norton Design and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
- Client unconditionally guarantees that Client’s website has not been compromised, hacked, or otherwise defaced or infected prior to engaging Maintenance Services.
- Client agrees to be solely responsible for complying with any such laws, taxes, and tariffs, and will hold harmless, protect, and defend Left Coast Creative® and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of Internet electronic commerce.
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, Nora Kramer 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.
Relationship of Parties – Left Coast Creative®, 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 Left Coast Creative® / Scott Norton Design, whether by regulation or contract.
In no way is Left Coast Creative® / Scott Norton Design 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 California. All disputes under this Agreement shall be resolved by litigation in the courts of the State of California 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 Left Coast Creative®. Left Coast Creative® reserves the right to assign subcontractors as needed ensure on-time completion of maintenance tasks.
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 Left Coast Creative® 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 San Diego County, California 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 California 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 California 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.