Website Maintenance Agreement
This Website Maintenance Agreement (“Agreement”) is hereby entered into between you, your employees and agents (collectively “Client”) and applies to the purchase of all monthly website maintenance services (hereinafter collectively referred to as “Maintenance Services”) ordered by Client.
Term and Termination
This Agreement shall be effective as of the time frame Client signs up for Maintenance Services. This Agreement may be terminated by either party upon 30 day written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by Fluid Minds, LLC (i) immediately if Client fails to pay any fees hereunder; or (ii) if Client fails to cooperate with Fluid Minds, LLC or hinders Fluid Minds, LLC’s ability to perform the Maintenance Services hereunder.
Fluid Minds, LLC agrees to provide Client with Maintenance Services as described in this Agreement. Maintenance Services include:
- Updates to text, images, and other minor changes to 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 Fluid Minds, LLC will count towards the monthly allotted time.
- Upgrades to Client’s content management system, including plugins and themes.*
- Cloud backup of website on a daily, weekly, or monthly basis, depending on Maintenance Package purchased.*
- Recovery of website files from backups.*
- Uptime monitoring (if included in package purchased).*
- Regular security scans (if included in package purchased).*
*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.
- Removal of malware, spam, and malicious code that is existing on a website when a Client signs up for a maintenance plan will be charged at a rate of $499 for removal. This charge includes a one year subscription to WordFence Premium ($99 value) after removal has been done. This charge does not include working with Google or other search engines on your behalf to solve any issues your infection as caused you with their services.
Fees; Limitations on Refunds and Cancellation Fees
Client agrees to pay Fluid Minds, LLC 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 FLUID MINDS LLC FOR WORK PROVIDED AT CLIENT’S REQUEST ABOVE AND BEYOND THE MONTHLY ALOTTED TIME OF MONTHLY AGREEMENT. FLUID MINDS LLC 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 FLUID MINDS LLC.
For the purposes of providing these services, Client agrees:
- To properly convey to Fluid Minds, LLC the information that needs to be changed or added.
- To answer any questions from Fluid Minds, LLC, in regards to task work on website, promptly.
- To provide Fluid Minds, LLC with access to its website for creating new pages, and making changes for the purpose of providing Maintenance Services.
- To provide Fluid Minds, LLC 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 that they purchased and will be billed in fifteen (15) minute increments.
- Client understands that all work for monthly maintenance tasks will be scheduled according to Fluid Minds, LLC’s workflow. We have a process and maintain sites for many Clients, therefore all website updates work that counts towards your monthly time allotment is done on a first come first serve basis, except in the case of a total website down issue, which would be considered an “emergency.”
- 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. Depending on the time of month, this could cause that task to roll over into the next month’s bucket of update requests.
- Once the time allotted in their Maintenance Package has been reached for the month, any unfinished tasks on the Client’s task list will be rolled into the next month for processing.
- All monthly updates are scheduled in accordance with our schedule. The only exception being in the case of Client’s website being totally offline or down for some reason, in which case their issue would be considered an ‘emergency’ and would take priority.
- Should the Client wish to have additional tasks completed in the same month, they will be billed on an hourly basis of $125 per hour less the discount rate provided for such work in the Maintenance Package that they purchased.
- Client understands that if they provide Fluid Minds, LLC with a maintenance task and the task has been completed, then they wish to make changes to the task, any additional time to make these changes will count towards the monthly allotment of time.
- Website updates exclude, but are not limited to, image editing, graphic design, graphic editing, database design, database changes, programming, and search engine optimization.
- Website updates do not include website redesign, re-alignment or re-development equaling 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 how to use your website, WordPress, or email.
- 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 7:00 AM to 4:00 PM (CST).
- Fluid Minds, LLC has no control over your hosting company in regards to server downtime, incompatibilities with software, PHP compatibility issues, etc.
- Fluid Minds, LLC is not responsible for Client’s email issues or troubleshooting problems on their own computer. Our role is to maintain and keep your website running at its optimal capabilities. We are not your IT team.
- Fluid Minds, LLC 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 Fluid Minds, LLC 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.
- Fluid Minds, LLC is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
- Fluid Minds, LLC is not responsible for changes made to Client’s web site(s) by other parties, including the Client.
- During the duration of this contract, the Client agrees that Fluid Minds, LLC 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 Fluid Minds, LLC 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.
- Fluid Minds, LLC is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
- Fluid Minds, LLC 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.
- The availability of backups is not guaranteed.
Scheduling of Maintenance Tasks – The scheduling of maintenance tasks is at the discretion of Fluid Minds, LLC. Scheduling is a priority for us. We schedule blocks of time for maintenance activities and web design and development activities each week. We strive to schedule all work for the month, in advance, to maintain an optimized workflow for our Clients. Maintenance requests are handled in the order in which they are received each week, unless a website problem interrupts your business causing an emergency maintenance activity. For instance, an eCommerce site that goes down or experiences checkout issues. In this case, the emergency tasks will take priority over other maintenance activities performed by Fluid Minds, LLC. Clients are informed of the estimated time of completion when a maintenance request is made. Clients are updated if emergencies occur that will affect the scheduling of their maintenance activities.
Additional Services – Additional services not listed herein will be provided for a fee of $125.00 per hour. Fluid Minds, LLC is not responsible for search engine optimization (SEO), developing new content, or writing new copy for Client.
Indemnification – Client shall indemnify and hold harmless Fluid Minds, LLC (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 Fluid Minds, LLC as a result of any claim, judgment, or adjudication against Fluid Minds, LLC 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 Fluid Minds, LLC (the “Client Content”), or (b) a claim that Fluid Minds, LLC’s use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Fluid Minds, LLC 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 – FLUID MINDS, LLC 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, FLUID MINDS, LLC 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 FLUID MINDS LLC 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. FLUID MINDS, LLC 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 Fluid Minds LLC :
- Client represents to Fluid Minds, LLC and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Fluid Minds, LLC 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 Fluid Minds, LLC and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
- Client guarantees to Fluid Minds, LLC and unconditionally guarantees that Client’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
- Client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Fluid Minds, LLC for inclusion on the website above are owned by Client, or that Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Fluid Minds, LLC and its subcontractors from any liability or suit arising from the use of such elements.
- From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce.
- Client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Fluid Minds, LLC 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, Fluid Minds, LLC 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. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
Relationship of Parties – Fluid Minds, LLC, 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 Fluid Minds, LLC, whether by regulation or contract. In no way is Fluid Minds, LLC 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 Iowa. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Iowa 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 Fluid Minds, LLC. Fluid Minds, LLC reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
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.
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.