The following Terms & Conditions were last modified on November 15, 2018:
Provider is engaged in the business of the design, implementation, maintenance, and marketing of Internet websites. Client desires to retain Provider for said purposes as set forth herein, and Provider and Client agree to the following terms and conditions:
- Scope of Services: Provider agrees to establish, conduct, and maintain various Internet marketing services (“Services”) for Client in accordance with the specifications established between Client and Provider as set forth in the separate Harvest Estimate(s) or any other written agreement, Work Order, Service Ticket, or Project signed by Client. This Agreement and the terms established herein shall extend to any and all Services set for in the Harvest Estimate(s) or other written agreement, Work Order, Service Ticket, or Project signed by Client.
- Price and Payment Terms: Client will pay Provider for the Services according to the terms and timeframes for completion set forth between said parties in the Harvest Estimate(s) electronically signed by Client when “accepted,” or any other written agreement, Work Order, Service Ticket, or Project signed by Client. After the fulfillment of the terms of the agreement stated in the Harvest Estimate(s) or other written agreement, Work Order, Service Ticket, or Project signed by Client, if applicable, the Services provided shall automatically renew month-to-month unless terminated as described in Section 3 below.
- Term and Termination: Unless otherwise stated in a separate Harvest Estimate or any other written agreement, Work Order, Service Ticket, or Project signed by Client, Client or Provider may terminate Services without cause upon thirty (30) days written notice to the other party; however, Services for any product that Client has agreed to pay in monthly installments may not be terminated or cancelled within the first twelve (12) months of this Agreement. In the event of termination of Services, Client agrees to pay Provider for all Services performed up to the date of termination. Provider may terminate this Agreement for breach of this Agreement immediately upon written notice to the Client. Termination for breach will not preclude Provider from exercising any other remedies for breach of this Agreement. This termination agreement supersedes any other termination agreement previously signed.
- Ownership of Intellectual Property: Client warrants and represents that Client is the rightful owner and/or licensee of all content, including, but not limited to, all written content, stock images, photos, videos, audio, etc., that Client may provide to Provider for Services performed by Provider. Client shall indemnify, defend, and hold Provider harmless from any claims, damages, actions, judgments, costs, or attorney’s fees arising out of or related to Client’s use of any intellectual property, content, photos, videos, audio, or the like, provided to Provider. Moreover, Client accepts sole responsibility for procuring and retaining patient consent related to the reflection and use of any and all photos.
- HIPAA Compliance: Client warrants that all information of any kind provided to and used by Provider is in compliance with the Health Insurance Portability and Accountability Act (“HIPAA”) and acknowledges that Provider will take no independent action to assure or confirm compliance with HIPAA. Any damages that may be suffered by Provider as a result of Client’s failure to comply with HIPAA shall be expressly included in Client’s requirement to indemnify Provider as outlined in Section 11 below.
- FTP Transfers: Provider reserves the exclusive right to grant and/or deny File Transfer Protocol (“FTP”) as it deems reasonable and practical in the performance of Services. Client releases Provider of any and all responsibility related to the provision of “FTP” access and the ramifications associated with inappropriate use. If Provider has to recreate, reestablish, restore, or reapply any web files, code, programming, image, etc., that is lost, corrupted, overwritten, or skewed by Client’s FTP access, Client understands that this is a billable charge at Provider’s then current hourly rate.
- Ownership: Upon payment in full, Client retains sole and exclusive ownership of any and all data files, videos, and/or photographs provided by Client, and the final work product of Client’s website and/or blog. Further, Client retains sole and exclusive ownership of the final work product of Client’s marketing pages (e.g., Procedure Pages and Campaigns). Client’s ownership shall continue indefinitely upon termination of this Agreement for any reason. Client does not retain ownership of any and all working files and/or source files of Client’s website and/or blog, including any and all working files and/or source files for the graphic design and textual content, including, but not limited to, Adobe Photoshop (.psd) and Adobe Illustrator (.ai) files. Also, Client does not retain ownership of any licensing applications, software, and/or other licensed content provided by any third party, including, but not limited to, WordPress, NextGEN, Gravity Forms, Advanced Custom Fields, ToolSet, Adobe Typekit, EmailMeForm, MailChimp, iStockphoto, Shutterstock, and People Images. Provider retains sole and exclusive ownership of any and all working files and/or source files of Client’s website and/or blog, including any and all working files and/or source files for the graphic design and textual content, including, but not limited to, Adobe Photoshop (.psd) and Adobe Illustrator (.ai) files. Provider retains sole and exclusive ownership of any and all database application software programs used in the creation and maintenance of all Services, including, but not limited to website photo galleries, website shopping carts, directory web pages, etc. Moreover, Provider exercises sole and exclusive ownership of all advertising and Pay Per Click (PPC) programs. Provider’s ownership shall continue indefinitely upon termination of this Agreement for any reason. Provider reserves all reasonable remedies to ensure and protect said interest.
- Confidential Information: All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Provider and will not be disclosed or used by Provider except to the extent that such disclosure or use is reasonably necessary to the performance of Services or is required by law. All information relating to Provider that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Client and will not be disclosed or used by Client except to the extent that such disclosure or use is reasonably necessary to the Performance of Client’s duties and obligations under this Agreement or is required by law. These obligations of confidentiality will extend for a period of two (2) years after the termination of this agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
- Warranty and Disclaimer: Provider warrants that the Services will be provided in a professional, skillful manner, and in conformity with generally prevailing industry standards. Provider makes no implied warranties whatsoever concerning Services, including matters relating to the merchantability of Services or their suitability for any particular purpose. No express warranty is made regarding any Services unless set forth herein or in writing signed by Provider. If Provider shows Client any model or sample of Services, that model or sample was merely used to illustrate the general type and quality of Services and does not represent that Services would necessarily conform to the model or sample. Further, Provider makes no warranty, either express or implied, regarding the accuracy or validity of any information or material supplied by Client under this Agreement, and Provider has no obligation to conduct any independent investigation or research concerning any information provided or supplied by Client.
- Limitation of Liability: In no event will Provider be liable for any loss of profit or revenue by Client, or for any other consequential, incidental, punitive, indirect, or economic damages incurred or suffered by Client arising as a result of or related to Services, whether in contract, tort or otherwise. Client further agrees that the total liability of Provider for all claims of any kind arising as a result of or related to the Agreement, or to any act or omission of Provider, whether in contract, tort, or otherwise, will not exceed an amount equal to the amount paid by Client to Provider for Services during the twelve (12) month period preceding the date the claim arises.
- Indemnification: Client shall indemnify, defend, and hold Provider harmless from any liability, action, claim, or damages whatsoever, based or asserted by a third party, including but not limited to all costs, expenses, attorney’s fees, and judgments incurred by Provider therein, arising out of or in conjunction with Client’s performance under or breach of this Agreement.
- Venue: The parties agree that for any dispute arising concerning this Agreement or Services, the proper venue shall be the Superior Court for the County of San Bernardino, in the State of California. Either party may attend any court hearing and/or proceeding telephonically or via video services, including, but not limited to, Facetime or Skype, unless ordered by the Court to attend any court hearings and/or proceeding in person.
- Chargebacks: Client agrees that any amount due from Client to Provider resulting from a credit card chargeback will be subject to a four percent (4%) fee on the amount due. If any check provided by Client to Provider is returned from Provider’s bank for insufficient funds or any other reason, Client shall be responsible for all fees and costs incurred by Provider associated with such return.
- Content for Website: Unless otherwise stated in a separate Harvest Estimate or any other written agreement, Work Order, Service Ticket, or Project agreed to by Client and Provider, website design does not include content writing. Content provided by Client will be taken “AS IS,” and Provider will not edit Client’s content for spelling or grammar before adding it to the website. If Client wants Provider to edit content provided by Client, Client understands that this is a billable charge at Provider’s then current hourly rate. Provider has stock content available for Client to use if desired.
- Client Review and Approval: Client understands that Client is responsible for reviewing and approving projects, including but not limited to content writing and homepage design. Provider will give Client a minimum of fifteen (15) days in which to review and approve such projects. If, after fifteen (15) days, Client has not informed Provider of any change requests Client wishes Provider to make to the project, Client understands and agrees that Provider will assume Client’s approval and move forward with the project. Thereafter, any change request by Client will be billable at Provider’s current hourly rate. (Provider will not launch Client’s website without written approval signed by Client.)
- Client Abandonment: If, after three (3) months, Client has failed to respond to Provider regarding any project, Client understands and agrees that Provider will assume Client has abandoned the project and will archive it. If, after archiving said project, Client wishes to move forward with the project, Client understands and agrees to pay Provider a fee of up to $500.00 to unarchive said project.
- Advertising: Client understands and agrees that Provider may use Client’s website design or online digital marketing or a graphic representation of Client’s website design or online digital marketing that Provider creates for Client in Provider’s advertising or trade or for any other lawful purpose, in all forms and media, including Provider’s Case Study Gallery.
- Force Majeure: If either party is unable to comply with any provision of the Harvest Estimate(s) or other written agreement, Work Order, Service Ticket, or Project signed by Client due to causes beyond its reasonable control, and which could not have been reasonably anticipated, such as acts of God, acts of war, civil disorders, or other similar acts, such party shall not be held liable for such failure to comply.
- Miscellaneous Provision: This Agreement constitutes the entire agreement between the parties regarding the subject matter contained in it. No modification of the Agreement, other than Harvest Estimate(s), Work Order(s), Service Ticket(s), or Project(s) as set forth herein, shall be binding unless executed in writing by all of the parties. No waiver of any provision of this Agreement shall be deemed a waiver of any of the other provisions of this Agreement, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless made in writing and executed by the party making the waiver. If any portion of this Agreement becomes illegal, null, or void for any reason, or is held by any court of competent jurisdiction to be so, the remaining portions will remain in full force and effect. This Agreement shall be subject to and construed in accordance with the laws of the State of California. This Agreement shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, successors, assigns, licensees, partners, and agents of the parties to this Agreement. The captions heading the various sections of this Agreement are for the convenience and identification only and shall not be deemed to limit or define contents of the respective sections. Time is of the essence for performance of this Agreement. This Agreement may be executed in any number of counterparts, all of which together shall constitute one and the same instrument. This Agreement may also be executed and transmitted via facsimile or electronic mail. Each of the parties warrants and represents that they have the authority and right to execute this Agreement and carry out the obligations set forth herein. In any action arising between the parties concerning this Agreement, the prevailing party shall be entitled to the recovery of reasonable attorneys’ fees and costs.
Addendum – WordPress / Plugin Upgrades
Provider builds the majority of its clients’ websites on the WordPress framework. At this time, Provider finds the WordPress framework to be the most efficient, flexible, and cost-effective framework available for its customers. There are hundreds of community volunteers working to enhance and evolve the core WordPress software, and there are thousands of plugins and add-ons created and supported by thousands of developers to add additional features to WordPress. As the Internet evolves, so must the software that powers Client’s website. Provider prides itself on all quality of the websites it designs, builds, and launches. Many of Provider’s customers appreciate the flexibility its sites offer for future development, maintenance, and updates. Because Provider uses the most standardized and widely used web framework, its clients are not locked into its services for support and maintenance and are free to use other developers for upgrades, maintenance, or future development services. Provider strongly urges its customers to choose a maintenance plan with Provider that will keep their WordPress install up-to-date with not only core WordPress features but also important security updates. In addition to the core WordPress software, all third party plugins and add-ons should be updated whenever their respective creators offer an update. Unlike most website providers in the medical industry, Client owns the website Provider designs and builds for Client (see Section 7 to the ISA above). Therefore, it is Client’s sole responsibility to update Client’s website, plugins, and add-ons or contract with a developer to do so. Provider strongly recommends that whoever is responsible for Client’s updates follows the recommended WordPress process, including backing up all Client’s files and databases in such a way as to quickly restore a previous version if an update is not successful. Provider is not responsible for any updates to Client’s website or plugins made by any third party. Therefore, if Client, Client’s employee, an outside developer, or anyone other than Provider updates Client’s WordPress software or plugins and Client’s website no longer functions properly, Provider will not be held responsible. Upon Client’s request, Provider will assist in the recovery of Client’s website. Client understands that this is a billable charge at Provider’s current hourly rate.