This Contract is between the individual or company who has paid for services (the "Client") and Convology LLC (the "Provider").
Provider is engaged in the business of the design, implementation, maintenance, and marketing of Internet websites using Thrive Themes plugins and other third party tools. Client desires to retain Provider for said purposes as set forth herein, and Provider and Client agree to the following terms and conditions:
1. 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 this agreement or any other written agreement, proposal, statement of work, or service ticket signed or agreed upon by Client. This Agreement and the terms established herein shall extend to any and all Services set forth in the Proposal(s) or other written agreement, Work Order, Service Ticket, or Project signed or agreed upon by Client.
2. Price and Payment Terms
Client will pay Provider for the Services according to the terms and time frames for completion set forth between said parties in this service agreement electronically signed by Client or any other proposal, written agreement, work order, service ticket, or project signed by Client. The Client will reimburse the Provider's expenses. Expenses must be pre-approved by the Client. After the fulfillment of the terms of the agreement stated in the Proposal(s) or other written agreement signed by Client, if applicable, the Services provided shall automatically renew and be charged to the payment method on file on a month-to-month basis unless terminated as described in Section 3 below.
3. Term and Termination
Unless otherwise stated in a separate Proposal 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. 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.
4. 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 consent related to the reflection and use of any and all photos.
5. Access to Provider’s Servers
Provider reserves the exclusive right to grant and/or deny access to Provider's servers via File Transfer Protocol (“FTP”), or any other access method to its servers, 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 to Provider’s Servers, Client understands that this is a billable charge at Provider’s then current hourly rate.
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 and procedure pages. 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, 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 Background IP, licensing applications, software, and/or other licensed content provided by any third party, including, but not limited to, form processors, Thrive Themes Plug-ins, review software, page builders,etc, licensed by Provider. Provider retains sole and exclusive ownership of any and all working files and/or source files, 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 applications or software programs used in the creation and maintenance of all Services, including, but not limited to website photo galleries, website shopping carts, website plugins, and other licensed background intellectual property.
7. 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.
8. 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.
9. 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.
Client shall indemnify, defend, and hold Provider harmless from any claims, damages, or actions by third parties, including all costs, expenses, and attorney’s fees incurred by the Provider therein, arising out of or in conjunction with Client’s performance under or breach of this Agreement.
11. Arbitration / Venue
As the exclusive means of initiating adversarial proceedings to resolve any dispute arising under this Service Agreement, a party may demand that the dispute be resolved by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules.
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.
13. Content for Website
Unless otherwise stated in a separate Proposal 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.
14. Client Review and Approval
Client understands that Client is responsible for reviewing and approving projects, including but not limited to content writing and website 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.
15. 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.
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, YouTube channel, and other social media.
17. 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 Proposal(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.