Terms of Service 2018-03-31T18:28:50+00:00

TERMS OF SERVICE (“TERMS & CONDITIONS”)

By subscribing and submitting payment the WP Care Plan of our choice, you hereby agree to the following Terms of Service:

This agreement is between ODesk Solutions, the Developer (“ODS”), and You, the Client. Client is contracting ODS, as a provider of monthly WordPress website maintenance services “WP Care Plan”.

Services

What IS included in this agreement based on what WP Care Plan You have selected:

What is NOT included in this agreement:

  1. Website redesign, re-alignment or re-development equaling 50% or more changes to any single web page, website, web graphics on the website.
  2. CMS design or integration including but not limited to blogs, shopping carts and web forums. These require a separate design agreement.
  3. Graphic design.
  4. Copywriting.
  5. E-Commerce management.
  6. Email Marketing
  7. SEO Services
  8. Social Media Services
  9. Blog creation, management or set-up.
  10. Search engine optimization work (separate agreement), unless specifically stated in your plan.  
  11. Logo design.
  12. Purchasing of any third-party services.
  13. Anything not included in this agreement.  

Total Agreement

ODS shall provide Client with minor updates to the website for an indefinite period of within this agreement. The agreement will be paid on a recurring monthly basis on the 1st of each month.  During the duration of this contract, the Client agrees that ODS, will be the sole provider of maintenance services for the web site, and no other party will have access to or rights to change the web site. If a party other than ODS makes changes to the web site, any errors that are created must be repaired and will be charged at the standard hourly rate. Minor updates should not exceed 50% or more of the content on any single site page, THE PERCENTAGE TO BE DETERMINED BY ODS. 

Payment

Payment for ongoing website maintenance is billed automatically on the 1st of every month. If payment is not received by the 1st of the month, work will be billed at the standard hourly rate and any hours performed will not be counted towards the maintenance plan after payment has been received.  Subscribing to a WP Care Plan is your consent to charge the payment method you select to use for the monthly recurring charges for said WP Care Plan. You can modify, change or cancel at any time by going to My Account.  Any cancellations will need to be done before the next billing cycle.  

NOTE: Unused hours included in your WP Care Plan will not be refunded after cancellation, however, your WP Care Plan will continue until end of the plan month.

NOTE: Additional charges may apply if someone else designed/developed the site, or if it’s been worked on by several people designers/developers and issues arise from poor designer/development.

Chargeback

If Client initiates a chargeback with the provider of a credit card or initiates a similar action to a payment provider allowed by ODS for charges billed by ODS for services, ODS will be immediately suspended without notice. Reestablishment of service following a chargeback or similar action will require sufficient explanation for the action and payment of the disputed charge and/or Host’s bank dispute fee.  

Breach for Failure to Pay

Failure of Client to fully pay any fees within sixty (30) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by ODS, and will be sufficient cause for immediate termination of this Agreement by ODS. Any such suspension does not relieve Client from paying past due fees plus interest and in the event of collection enforcement, Client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys’ fees, court costs and collection agency fees. 

Completion of Assignments/Tickets for Support

All assignments and/or support requests will be submitted in form of a “ticket request” via the Help Desk.  Tickets submitted for support will be completed by ODS Solutions within a reasonable amount of time, unless.

             i. ODS communicates with the Client a specific estimated time that the assignment(s) and/or task(s) should be completed; and/or

             ii. As otherwise agreed to by the Parties.

In the event that ODS has any issues in delivering on a quoted deadline, Client will be notified via email or telephone the reasoning for any change.

Rush Services

ODS reserves the right to add a surcharge on all rush requests to be completed within a “less than reasonable” and/or must be completed on the same day will incur an rush fee of $150.00.

Monthly Developer Hours

Client monthly developer time as set forth in the WP Care Plan selected.  Unused time does not rollover to the following month. We encourage the Client to send several update request simultaneously to get the most of the time available each month via the Help Desk. (Suggestion: send any maintenance requests once a week.)  Any updates that exceed the allotted time will be billed at the standard hourly rate.  

Exceed Your Monthly Developer Hours

If at any given month the Client exceeds the monthly developer hours as provided in your WP Care Plan, or there are no hourly credits available for use before the next billing cycle, and the Client needs further services from ODS, ODS will provide a Quote to the Client for further services needed.  If the Client agrees to the Quote provided by ODS, payment will need to be made before work can begin. Once payment is received, ODS will work on said task/assignment as set forth in said Quote.

Additional Services

Any revisions, additions or redesign Client requests ODS to perform that is not specified in this agreement shall be considered “additional” and will require separate agreement and payment. ODS, shall advise Client on any requested work that falls within these bounds. The minimum charge for maintenance is based on the monthly plan you selected for your monthly website maintenance, and any additional work outside of the scope of your monthly plan and is not included in this agreement will be charged at the standard hourly rate.

Authorization (3rd Party Host)

Client hereby authorizes ODS, to access their web hosting account (if not hosting with ODS), providing active user name / password combinations for access to the server via FTP, assuring that ‘write permissions’ are in place on said hosting provider.

List of Holidays (US)

Our office will be closed on the following days: 

 – January – 1 New Year’s Day

 – March/April – Passover

 – May – Memorial Day

 – July 4 – Independence Day

 – September – Labor Day

 – September – Rosh Hashanah & Yom Kippur

 – November – Thanksgiving Day (Thursday, Friday, Saturday & Sunday)

 

 – December – Winter Holiday/Vacation

LEGAL:

Copyright

The Client agrees to indemnify and hold harmless ODS, against any and all claims, costs, and expenses, including attorney’s fees, due to materials included in the Work at the request of the Client for which no copyright permission or previous release was requested or uses which exceed the uses allowed pursuant to a permission or release.

Governing Laws

 

This Agreement shall be governed by and construed in accordance with the laws of the State of California as applicable therein. By subscribing and submitting payment for a WP Care Plan the Client hereby agrees to the terms as set forth in the Terms of Service “Terms & Conditions.”

Disclaimer

We strive to provide awesome website maintenance care so that your website is running at optimal performance and security.  ODS, does do not represent, guarantee or warrant that the functions contained in your web pages or website will be uninterrupted, error-free, free from loss (if there are no backup copies), corruption, attack, viruses, interference, hacking, or other security intrusions and disclaims any liability relating thereto, especially if ODS did not build the software, plugins used on the website and/or the Client decides to host the website with a 3rd party.  There is no 100% guaranteed “hacker proof” website. (Example: Major department stores, government, and other major companies websites have been hacked.)

Disclaimer (Hosting)

ODS provides dedicated, secured and monitored hosting platform/servers specifically for WordPress for any Client that would like to subscribe to this service.  ODS does not “share” any of its servers, therefore providing a much more secure hosting option. However, if you decided to opt-out from hosting with ODS, we cannot be held responsible if your hosting platform/server (especially if it is a shared server) is in any way interrupted, corrupted, attacked, has a virus, is interfered with, attached, hacked, or any other security intrusions that may affect the performance in any way of your website.  For this reason, ODS reserves the right to charge the Client an additional fee to manage and communicate with any 3rd party hosting $75 each time we have to communicate with your host in addition to the monthly developer hours.  Said $75 fee will be sent to the Client as an invoice via email and is due immediately upon receipt.  

Electronic Contracting

ODS and the Client desire to facilitate certain transactions pursuant to this Agreement by exchanging documents, records and signatures electronically or by utilizing electronic agents. The use of electronic facilities or agents shall be in accordance with procedures established by Host and governed by the applicable provisions of the Uniform Electronic Transactions Act as adopted in the State of California.

Hosting Agreement

By subscribing and submitting payment the WP Care Plan of choice and opt to include Hosting, you hereby agree to the following Terms of Service:

This agreement is between ODesk Solutions, the Host (“Host”), and You, the Client “Client.”  The Host and the Client shall be collectively referred to as the Parties. Under this Agreement, the Host will provide Web Hosting

and related services to Client. The parties agree as follows:

1. Acceptance

By accepting this Agreement and using Host’s Website Hosting Services (“Services”), Client agrees to be bound by all the terms and conditions of this Agreement.

2. Provision of Services

Host agrees to provide Client with website hosting services, consisting of website server space, e-mail capability, internet access, domain name registration, and such additional services as may be provided by Host from time to time or as specifically hereinabove mentioned. Host reserves the right to change or modify the features of Client’s service plan from time to time on within 30 days written or e-mailed notice to Client. Client’s continued use of Host’s services after receipt of such a notice of modification shall constitute Client’s acceptance of and agreement to be bound by the Host’s modification of the terms and conditions of this Agreement.

3. Agreement Term

The initial term of this Agreement shall commence on the date payment is received from the Client for said services, and shall continue through the remainder of the calendar month. After the initial term, this Agreement shall be automatically renewed for successive monthly periods until terminated by one of the parties as provided in this agreement.

4. Termination without Cause

(a) Client may terminate this Agreement at any time, for any reason, by contacting Host, either by phone or e-mail, and requesting that Client’s account be canceled or by going to My Account.  In the event of a cancellation, Host will not refund amounts already billed for the current monthly service period in which Client terminates the Agreement. Any amounts paid in advance by Client for future service terms following the current monthly service term are non-refundable and will to be refunded to the Client.  

(b) Host may terminate this Agreement at any time, for any reason, by providing written or e-mail notice of termination to Client’s primary website e-mail contact address no less than 30 days prior to the service termination.

(c) If either Party terminates this Agreement, Host will back up all Client’s current Website content, databases, and e-mail messages as an archive file, and send them to Client either as an attachment to an e-mail or via other file transfer process, or mail them to Client in the form of a CD-ROM.

5. Termination for Cause

Client agrees to abide by the terms of this Agreement and by Host’s general use policies as set forth in this Agreement, as those policies may exist from time to time. Host may change its use policies on 30 day written notice to Customer by e-mail. Any violation by Client of the terms of this Agreement or of Host’s general use policies shall be grounds for immediate termination of Client’s account for cause. If Host terminates Client’s account for a violation of this Agreement, Host shall not be required to refund any amounts billed for the billing period in which Host terminates Client’s services.

6. Payment Terms

(a) Payment for hosting services is included in the Client’s WP Care Plan as a premium option.  However, Host reserves the right to change or modify its charges for Client’s plan from time to time on 30 days notice written or e-mailed to Client. Client’s continued use of Host’s services after receipt of such a notice shall constitute Client’s acceptance of and Agreement to be bound by the Host’s modified charges for its services. Additional charges for add-on services not included in Client’s plan will be made as mutually agreed upon.

(b) Any upgrades to the Client’s current hosting package, or performing add-on requests, will not be billed until the next invoice and every monthly thereafter as a recurring charge on the 1st of every month.  

7. Taxes

Host shall not be liable for any taxes and other governmental fees related to purchases made by Client or from Host’s server. Client agrees that s/he will be fully responsible for all taxes and fees of any nature associated with products or services sold through the use of or with the aid of services provided to Client by Host.

8. Materials and Products

Any material and data Client provides to Host in connection with Services shall be in a form requiring no additional manipulation on the part of Host. Host shall make no effort to validate this material or data for content, correctness, or usability. Material or data that is not in this condition shall be a breach of this Agreement. Host, in its sole discretion, may reject material or data that Client has placed on Host’s servers or that Client has requested that Host put on Host’ servers. Host agrees to notify Client immediately of its refusal of any material or data and provide Client with an opportunity to amend or modify the material or data to meet the Host’s requirements. Client’s failure to amend or modify the data or material as directed by Host within a reasonable time shall be a breach of this Agreement.

9. Violations of Network Security

Client is prohibited from violating or attempting to violate the security of the network. Violations of system or network security may result in civil or criminal liability in addition to immediate termination of Client’s agreement. Host will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Clients who are involved in such violations. These violations include, without limitation:

(a) Accessing data not intended for the Client or logging into a server or account that the Client is not authorized to access.

(b) Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization.

(c) Attempting to interfere with service to any Client, host or network, including, without limitation, via means of overloading, “flooding,” “mail bombing,” or “crashing”.

(d) Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.

(e) Taking any action in order to obtain services to which the Client is not entitled.

10. Client Content

Client assumes sole responsibility for (i) acquiring any authorization(s) necessary for hypertext links to third party websites; (ii) the accuracy of materials on the Website, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted; and (iii) ensuring that the Client Content does not infringe or violate any right of any third party.

11.  Warranty against Unlawful Use

Client warrants and represents that Client shall use Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of Client’s account for cause.

12. Liability; No Warranty; Limitation of Damages

(a) Client expressly agrees that use of Services provided by Host is at Client’s sole risk.

(b) Availability of Website.  Unless otherwise indicated on Schedule A hereto, the Website shall be accessible to third parties via the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Hosting Services due to causes beyond the control of Host or which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. In the event of any loss or interruption of Hosting Services, Client’s sole and exclusive remedy and Host’s sole and exclusive liability for any loss or interruption of Hosting Services shall be as follows: for loss or interruption of Hosting Services which is due to (i) causes other than scheduled maintenance and required repairs; (ii) causes beyond the control of Host; or (iii) causes which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, which loss or interruption of Hosting Services exceeds a continual period of twenty-four (24) hours, Client shall receive a credit against future developer services equal to a pro rata portion of monthly WP Plan Care fees for the period of downtime.

(c) Host, its agents, affiliates, licensors or the like, do not represent or warrant, expressly or impliedly, that their services will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of their services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through their services, unless otherwise expressly stated in this Agreement.

(d) Host, its officers, agents, or anyone else involved in providing services shall not be liable for any direct, indirect, incidental, special, or consequential damages that result from the use or inability to use services; or for any damages that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of god, communication failure, theft, destruction, or unauthorized access to Host’s records, programs, or services.

(e) Host will exercise no control over the content of the information passing through Host’s network except those controls expressly provided herein.

(f) Host makes no warranties or representations of any kind, express or implied, for the services it is providing. Host also disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays or non-deliveries.

13. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights

(a) Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to Client. Client agrees that all right, title, and interest in any product or service provided to Client belongs to Host. These products and services are only for Client’s use in connection with Services provided to Client as outlined in this Agreement.

(b) Client expressly warrants to the Host that Client has the right to use any patented, copyrighted, or trademarked material which Client uses, posts, or otherwise transfers to Host servers.

  1. Hardware, Equipment, and Software

Client is responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access Host servers. Host makes no representations, warranties, or assurances that Client’s equipment will be compatible with Host Services.

14. Age

Client expressly represents and warrants that Client and any person to whom Client grants access to Client’s Host account are at least 18 years of age.

15. Indemnification

Client agrees to defend, indemnify, and hold Host harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against Host, its agents, servants, officers, and employees, that may arise or result from any Service provided or performed or agreed to be performed or any product sold by Client, Client’s agents, employees, or assigns. Client further agrees to defend, indemnify, and hold harmless Host against liabilities arising out of:

(a) Any liability to Host arising by virtue of any use of Host’s services by Client for any unlawful purpose, or in violation of any valid federal, state, or local law or regulation governing use of e-mail or the Internet;

(b) Any injury to person or property caused by any products sold or otherwise distributed in connection with Services provided to Client;

(c) Any material supplied by Client infringing or allegedly infringing on the property or proprietary rights of a third party;

(d) Copyright or trademark infringement by Client, or violation by Client of intellectual property rights of any other party; and

(e) Any defective product which Client sold or distributed by means of Services. Client agrees that the liability limit of Host shall in no event be greater than the aggregate dollar amount which Client paid during the terms of this Agreement, including any reasonable attorneys’ fees and court costs.

16. Proprietary Rights of Client

As between Client and Host, Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Except as provided in this Section, nothing in this Agreement shall be construed to grant Host any ownership right in, or license to, the Client Content provided by Client to Host.

17. Proprietary Rights of Host

All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Host or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by Host to provide the Services to Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively “Host Materials”) shall remain the sole and exclusive property of Host or its suppliers. To the extent, if any, that ownership of the Host Materials does not automatically vest in Host by virtue of this Agreement or otherwise, Client hereby transfers and assigns to Host all rights, title and interest which Client may have in and to the Host Materials. Client acknowledges and agrees that Host is in the business of hosting Websites, and that Host shall have the right to provide to third parties services which are the same or similar to the Hosting Services, and to use or otherwise exploit any Host Materials in providing such services.

18. Confidentiality

Each party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving party can demonstrate (i) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party; (ii) was known to the receiving party as of the time of its disclosure; (iii) is independently developed by the receiving party; or (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in this Agreement, each party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each party and its employees shall survive the expiration or termination of this Agreement.

19. Acceptable Use Policy

Host does not intend to and shall have no obligation to systematically monitor the content that is submitted, stored, distributed or disseminated by Client via the Website. An Acceptable Use Policy (“AUP”) is in effect for the Hosting Services. Any violation of the AUP may result in the immediate cancellation or suspension of any or all Services without warning.

 

20. Indemnification

 

The Client agrees to defend, indemnify and hold Host, its officers, managers and its employees harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of your breach of this Agreement and/or your use of the Services.

21. Attorneys’ Fees

If Host takes any action to enforce any part of this entire Agreement, ODesk Solutions will be entitled to recover from the Client, and the Client agrees to pay, all reasonable and necessary attorney’s fees, costs, and any cost of arbitration, in addition to any other relief, at law or in equity, to which such parties may be entitled.

22. Notice

Client agrees to keep Host informed of all current contact information for Client’s account. Changes in Client’s account information may be reported to Host by logging on to by going to My Account. Failure to maintain or keep current all contact information shall be a ground for Host to terminate Client’s account for cause.

23. Governing Law

This Agreement has been entered into in the State of California, and its validity, construction, interpretation and legal effect shall be governed by the laws of that state applicable to contracts entered into and performed entirely within that state.

24. Severability

In case any one or more of the provisions of this Agreement be held for any reason to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid provision(s) had never been contained in this Agreement, provided that those provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.

25. Waiver

No waiver by Host of any breach by Client of any provision of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No waiver shall be effective unless it is in writing, and then only to the extent expressly set forth in such writing.

26. Entire Agreement

This Agreement shall constitute the entire agreement between Client and Host, and no other agreement, statement, or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding.

27. Electronic Contracting

Host and Client desire to facilitate certain transactions pursuant to this Agreement by exchanging documents, records and signatures electronically or by utilizing electronic agents. The use of electronic facilities or agents shall be in accordance with procedures established by Host and governed by the applicable provisions of the Uniform Electronic Transactions Act as adopted in the State of California.