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 and yearly website maintenance and services (hereinafter collectively referred to as “Maintenance Services”) ordered by Client.

Term and Termination

This Agreement shall be effective as of the time 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 Swatch Junkie Creative (i) immediately if Client fails to pay any fees hereunder; or (ii) if Client fails to cooperate with Swatch Junkie Creative or hinders Swatch Junkie Creative’s ability to perform the Maintenance Services hereunder.

What’s included:

Swatch Junkie Creative agrees to provide Client with Maintenance, Support and/or Hosting services as described in this Agreement. 

Maintenance Plan services:

  • Upgrades to Client’s content management system, including plugins and themes.*
  • Cloud backup of website on a weekly basis.*
  • Recovery of website files from backups.
  • Uptime monitoring.*
  • Regular security scans.*
  • Monthly reports

*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.

Support Plan services:

  • All services from Maintenance Plan, plus;
  • Unlimited updates to text, images, and other minor changes to Client’s website pages; 
  • Daily cloud backups (2x)
  • Weekly reports

Managed WordPress Hosting Plan services:

  • All services from Support Plan, plus;
  • Priority support (8-hour turnaround time)
  • Premium plugins (WP Smush Pro, WP Rocket)
  • Speed and security optimization
  • Daily cloud backups (4x)
  • Weekly traffic analysis reports (Google Analytics and Google Search Console)

What’s not included:

  • Website updates exclude, but are not limited to, image editing, graphic design, graphic editing, database design, database changes, programming, and search engine optimization.
  • 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 Service-Level Agreement. These require a separate design or development agreement.

Additional Services

  • Additional services not listed herein will be provided for a fee of $100.00 per hour. Swatch Junkie is not responsible for developing new content or writing new copy for Client. Client will be charged an additional fee for writing content, based on the hourly rate of $100.00 per hour.

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 has caused you with their services.

Fees; Limitations on Refunds and Cancellation Fees

Client agrees to pay Swatch Junkie 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 Client, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE Client FURTHER AGREES TO PAY UPON CANCELLATION ANY OTHER AMOUNTS DUE TO SWATCH JUNKIE DESIGNS FOR WORK PROVIDED AT CLIENT’S REQUEST ABOVE AND BEYOND THE MONTHLY ALLOTTED TIME OF MONTHLY AGREEMENT. SWATCH JUNKIE DESIGNS 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 SWATCH JUNKIE DESIGNS.

Client Responsibilities

For the purposes of providing these services, Client agrees:

  • To properly convey to Swatch Junkie Creative the information that needs to be changed or added.
  • To answer any questions from Swatch Junkie Creative, in regards to task work on the website, promptly.
  • To provide Swatch Junkie Creative with access to its website for creating new pages, and making changes for the purpose of providing services.
  • To provide Swatch Junkie Creative access to 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 the hosting provider.

Client Acknowledgements

Client understands, acknowledges and agrees that:

  • All monthly updates are scheduled at our convenience and in accordance with our schedule. We have a process and a workflow that we use to maintain all of our clients’ websites in a fair and orderly fashion. 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.
  • Swatch Junkie is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
  • Swatch Junkie is not responsible for changes made to Client’s website(s) by other parties, including the Client themself.
  • Swatch Junkie is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
  • Swatch Junkie 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.
  • Client understands that if they provide Swatch Junkie Creative with a Support 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 as an Additional Service and be billed at the hourly rate of $100.
  • 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.
  • Swatch Junkie Creative 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, not manage IT. 
  • Swatch Junkie Creative 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 website(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
  • During the duration of this contract, the Client agrees that Swatch Junkie Creative 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 Swatch Junkie Creative 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.
  • Swatch Junkie Creative will not repair Client’s website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.

Client Representations

Client makes the following representations and warranties for the benefit of Swatch Junkie Creative:

  • Client represents to Swatch Junkie Creative and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Swatch Junkie Creative 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 Swatch Junkie Creative and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
  • Client guarantees to Swatch Junkie Creative and unconditionally guarantees that Client’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
  • 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 Swatch Junkie Creative and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of Internet electronic commerce. 

Indemnification – Client shall indemnify and hold harmless Swatch Junkie Creative (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 Swatch Junkie Creative as a result of any claim, judgment, or adjudication against Swatch Junkie Creative 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 Swatch Junkie Creative (the “Client Content”), or (b) a claim that Swatch Junkie Creative’s use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Swatch Junkie Creative 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 – Swatch Junkie Creative 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, SWATCH JUNKIE DESIGNS 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 SWATCH JUNKIE DESIGNS 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. SWATCH JUNKIE DESIGNS 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. 

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, Swatch Junkie Creative 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 – Swatch Junkie 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 Swatch Junkie Creative, whether by regulation or contract. In no way is Swatch Junkie Creative 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 Washington. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Washington 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 Swatch Junkie Creative. Swatch Junkie Creative 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.

Disputes – Client and Swatch Junkie 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 King County, Washington 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 Washington 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 Washington 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, Support or Hosting plan, Client acknowledges that they have read and understand this Agreement and agree to be bound by its terms and conditions.