Alex Mustin

Maintenance Agreement

This Maintenance Agreement (“Agreement”) is hereby entered into between Alex Mustin (“Developer”), and you, your employees and agents (collectively “Customer”) and applies to the purchase of all Monthly Website Maintenance Services (hereinafter collectively referred to as “Maintenance Services”) ordered by Customer.

  1. Term and Termination – This Agreement shall be effective as of the time frame Customer signs up for Maintenance Services on Developer’s website. Customer will be billed monthly and charges will reoccur automatically on the first day of each month. This Agreement may be terminated by either party upon 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 Customer immediately by cancelling the Monthly Maintenance subscription on Developer’s website. This Agreement may be terminated by Developer (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with Developer or hinders Developer’s ability to perform the Maintenance Services hereunder.
  2. Maintenance Services – Developer agrees to provide Customer with Maintenance Services as described in this Agreement. Maintenance Services include:
    • Upgrades to Customer’s content management system, including plugins and themes.
    • Removal of malware, spam and malicious code from Customer’s website.
    • Recovery of files or email from backups, if available.
  3. Fees; Limitations on Refunds and Cancellation Fees – Customer agrees to pay Developer 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 CUSTOMER FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY CUSTOMER, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE CUSTOMER FURTHER AGREES TO PAY UPON CANCELLATION THE AMOUNT OF ANY CANCELLATION FEES OR OTHER AMOUNTS DUE TO DEVELOPER AS PROVIDED IN THE AGREEMENT. DEVELOPER IS HEREBY AUTHORIZED TO CHARGE CUSTOMER’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CUSTOMER TO DEVELOPER.
  4. Customer Responsibilities – For the purposes of providing these services, Customer agrees:
    • To provide Developer with access to its web site(s) for the purpose of providing Maintenance Services.
  5. Customer Acknowledgements – Customer understands, acknowledges and agrees that:
    • Only one (1) hour of time for Maintenance Services is allotted per month.
    • Any repair work which arises from Maintenance Services performed which exceeds one (1) hour will be billed at the hourly rate of $40.00 per hour.
    • Unused time is not accumulative. Unused time does not transfer from month to month. Maintenance Services time is strictly month to month.
    • Developer is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
    • Developer is not responsible for changes made to Customer’s web site(s) by other parties.
    • Developer is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
    • Developer is not responsible for addressing or rectifying issues arising from hacks, external bot attacks, or spam attempts on the Customer’s website.
    • Developer will not repair Customer’s website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
    • Recovery or repair of Customer’s website is not guaranteed.
    • Availability of backups is not guaranteed.
    • Developer 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. Customer’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.
  6. Additional Services – Additional services not listed herein will be provided for a fee of $40.00 per hour. Developer is not responsible for developing new content or writing new copy for Customer. Customer will be charged an additional fee for writing content, based on the hourly rate of $40.00 per hour.
  7. Indemnification – Customer shall indemnify and hold harmless Developer (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 Developer as a result of any claim, judgment, or adjudication against Developer 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 Customer to Developer (the “Customer Content”), or (b) a claim that Developer’s use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Developer must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defense and all related negotiations.
  8. Disclaimer of All Other Warranties – DEVELOPER DOES NOT WARRANT THAT THE MAINTENANCE SERVICES WILL MEET THE CUSTOMER’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, DEVELOPER 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.
  9. Limited Liability – IN NO EVENT SHALL DEVELOPER BE LIABLE TO CUSTOMER 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. DEVELOPER 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.
  10. Customer Representations – Customer makes the following representations and warranties for the benefit of Developer:
    • Customer represents to Developer and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Developer are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Developer and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer.
    • Customer guarantees to Developer and unconditionally guarantees that Customer’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. Customer agrees that it is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Developer and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce.
  11. 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, Developer and Customer 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.
  12. 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.
  13. Relationship of Parties – Developer, 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. Customer does not undertake by this Agreement, or otherwise, to perform any obligation of Developer, whether by regulation or contract. In no way is Developer to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.
  14. 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.
  15. 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.
  16. 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.
  17. Assignability – Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Developer.
  18. 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.
  19. 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.
  20. 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.
  21. Disputes – Customer and Developer 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 El Dorado 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.
  22. Read and Understood – Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.