This Agreement may be terminated by Lift-Off Design Studio.
(i) immediately if Client fails to pay any fees hereunder; or
(ii) if Client fails to cooperate with Lift-Off Design Studio or hinders
Lift-Off Design Studios’ ability to perform the maintenance services hereunder.
Maintenance Services
Lift-Off Design Studio agrees to provide Client with Maintenance Services as described in this Agreement. Maintenance Services include:
* Analyze Website Performance
* Test Website Forms
* Test Order Process
* Backup Website
* Check Website Security
* Test Website Speed
* Check Website Links
* Update Content - text, images, and other minor changes to website pages
* Any website support requests, above and beyond what is not outlined in this Agreement will be charged an extra fee.
* Upgrades to Client’s content management system, including plugins and themes.
*These are tasks that are done throughout the month and will be detailed in your monthly report. Some items, such as updates, only occur when necessary and when we know the update is a stable version and it is okay to proceed.
Malware, Spam, or Malicious Code
* Removal of malware, spam, and malicious code from Client’s website is available for an additional charge of $199 per incident for clients who are on a maintenance plan at the time of infection.
Fees; Limitations on Refunds and Cancellation Fees
Client agrees to pay Lift-Off Design Studio 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 Client, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE Client FURTHER AGREES TO PAY UPON CANCELLATION ANY OTHER AMOUNTS DUE TO LIFT-OFF DESIGN STUDIO FOR WORK PROVIDED AT CLIENT’S REQUEST ABOVE AND BEYOND THE MONTHLY ALOTTED TIME OF MONTHLY AGREEMENT.
Client Responsibilities
For the purposes of providing these services, Client agrees:
* To properly convey to Lift-Off Design Studio the information that needs to be changed or added.
* To answer any questions from Lift-Off Design Studio, in regards to task work on website, promptly.
* To provide Lift-Off Design Studio with access to its website for creating new pages, and making changes for the purpose of providing Maintenance Services.
* To provide Lift-Off Design Studio access their web hosting account, providing active user name / password combinations for access to the server via FTP, 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.
* Client understands that all work for monthly maintenance tasks will be scheduled according to Lift-Off Design Studio’ workflow.
* Failure by Client to answer a question critical to 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.
* Should the Client wish to have additional tasks completed in the same month, they will be billed accordingly to task and not an hourly rate.
* Website updates exclude, but are not limited to, image editing, graphic design, graphic editing, additional pages, additional links, database design, database changes, programming, and search engine optimization.
* Website updates do not include website redesign, re-alignment or re-development equalling more than 50% change to web page.
* CMS design, integration of plugins that require intensive configuration, or programming of things that require extensive time to set up, 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 the Maintenance Agreement. These require a separate design or development agreement.
* Maintenance Agreement does not include training on search engine optimization (SEO) or other online digital marketing.
* All communications will be done during regular business hours, which are Monday through Friday from 9:00 AM to 5:00 PM (EST).
* Lift-Off Design Studio has no control over your hosting company in regards to server downtime, incompatibilities with software, PHP compatibility issues, etc.
* Lift-Off Design Studio is not responsible for Client’s email issues or troubleshooting problems on their own computer. Our role is toe maintain and keep your website running at it’s optimal capabilities.
* Lift-Off Design Studio has no control over the policies of search engines or directories with respect 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.
* If changes are made by Lift-Off Design Studio according to Client’s information, and the changes are not correct, additional time to remedy the changes fall under the time allotted each month.
* Unused time is not accumulative.
* Unused time does not transfer from month to month.
* Maintenance Services time is strictly month to month.
* Lift-Off Design Studio is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
* Lift-Off Design Studio is not responsible for changes made to Client’s web site(s) by other parties, including the Client themself.
* During the duration of this contract, the Client agrees that Lift-Off Design Studio will be the sole provider of maintenance services for the website, and no other party will have access to or rights to change the web site. If a party, including the Client, other than Lift-Off Design Studio makes changes to the web site, any errors that are created must be repaired and will be charged for at the hourly rate specified above.
* Lift-Off Design Studio is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
* Lift-Off Design Studio will not repair Client’s website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
* Recovery or repair of Client’s website is not guaranteed.
* Availability of backups is not guaranteed.
Indemnification – Client shall indemnify and hold harmless LIFT-OFF DESIGN STUDIO (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 by Lift-Off Design Studio as a result of any claim, judgment, or adjudication against LIFT-OFF DESIGN STUDIO 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 by Client to LIFT-OFF DESIGN STUDIO (the “Client Content”), or (b) a claim that LIFT-OFF DESIGN STUDIO’ use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, LIFT-OFF DESIGN STUDIO must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defense and all related negotiations.
Disclaimer of All Other Warranties – LIFT-OFF DESIGN STUDIO DOES NOT WARRANT THAT THE MAINTENANCE SERVICES WILL MEET THE Client’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH Client. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, LIFT-OFF DESIGN STUDIO PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE 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 DISTRIBUTION 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 LIFT-OFF DESIGN STUDIO 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. LIFT-OFF DESIGN STUDIO 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 LIFT-OFF DESIGN STUDIO:
* Client represents to LIFT-OFF DESIGN STUDIO and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to LIFT-OFF DESIGN STUDIO 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 LIFT-OFF DESIGN STUDIO and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
* Client guarantees to LIFT-OFF DESIGN STUDIO and unconditionally guarantees that Client’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
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, Lift-Off Design Studio 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.
Disputes – Client and Lift-Off Design Studio 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 Cary, North Carolina 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 North Carolina 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 Florida 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.