Terms of Service Agreement
Website Services - Terms of Service
Authorization
You are engaging KMA Web Design, LLC, as an independent contractor to perform work as described in the package(s) or service(s) you have purchased (website care plan or SEO services). In the event access to your website is necessary, you hereby authorize KMA Web Design, LLC access and “write permissions” to all directories and files of your account with any other third-party hosting provider, as well as permission to install any necessary WordPress plugins for maintenance and security.
Introduction
Although there is also some unavoidable standardized legalese at various places in the document which our attorney required, in this document we try to write everything in plain English. To do this, we frequently use terms like “we” and “you.” “We,” “us,” “our,” and “the Company” means KMA Web Design LLC, a corporation registered in the State of Massachusetts. “You,” “your,” “Customer” or “Client” in this document is you, our Client.
Current Hourly Rate
Throughout this document, reference is made to our current hourly rate. This rate is defined as our hourly rate that is in place at the time a service is requested, not at the time this agreement is signed. We will provide you with our current hourly rate upon request.
Availability and Communication
We are available via email Monday through Thursday from 9:00 am to 4:00 pm Eastern time. Our normal response time is one business day, though our response time may vary. We do not work on weekends or holidays. Clients with current website management services receive priority response times. Office email is the primary means of communication accepted for our work together. We do not communicate via mobile phone, text message, social media, or instant/private messaging (like Facebook Messenger) since we cannot track these requests as a team.
Website Hosting
Website hosting will be at a preferred WordPress web host. The client will pay for their web hosting service directly to the hosting provider.
Website Care Plan Service
Our Website Care Plan includes website software updates, website backups, and website security along with support time detailed on the website care plan details page.
Website Security
We employ industry-leading security software that actively guards your website against hack attempts at multiple levels in the WordPress system.
Website Backups
Your website’s files and database will be backed up automatically each day your website has activity (if your website does not have activity, there is no need for a backup to occur). This backup is stored in our cloud data vault where we typically retain the previous 30 backups for your site.
Software Updates
Each month, at our discretion, we will apply available updates for the WordPress core software, your theme files, and your plugin files. We perform these updates for the items that appear in the “Updates” area of your WordPress dashboard. We also watch WordPress industry security news and proactively perform these updates more frequently during times of enhanced threat levels.
While it is impossible to guarantee that your site will never be hacked, all of these techniques make your website a more difficult target for hackers. In addition, it is well known that hackers tend to exploit easier targets first – sites without security measures in place. However, in the event that your site is hacked, we will restore it to pre-hack condition at no additional cost either by restoring a site backup or performing a malware cleanup at our discretion. We shall have no other or further liability beyond restoration of the site to the nearest available pre-hack condition.
Restoring Backups
Should your site become compromised by a hack or if your site becomes inoperable because of user error, we will restore a backup for you.
If the restorations are the result of a hack, there is no limit to the number of restorations we will perform for you under this service. If the restorations are due to user error, we will perform a maximum of 2 restorations in any 30-day period. Additional user error-related restorations will be performed at our current hourly rate with a one-hour minimum.
Premium (Paid) Themes and PluginsMany websites use themes and/or plugins that require the payment of a recurring license fee to maintain access to ongoing software updates. We have secured appropriate licensing for many of these.
If we have appropriate licenses for the themes and/or plugins used by your website, the cost for recurring license fees are included in your Website Management Services, and licensing will be maintained for you as long as you are an active subscriber to our Website Care Plan Services.
If your website uses premium themes and/or plugins and we do not have appropriate licensing, the responsibility is yours for maintaining the appropriate licensing to ensure the availability of updates. We will advise you of the themes and/or plugins for which you will need to maintain licensing and assist you as needed in the process of obtaining them.
WE CANNOT BE HELD LIABLE FOR PROBLEMS SUCH AS BUT NOT LIMITED TO HACKS, INOPERABILITY OR INTERCOMPATIBILITY THAT ARISE FROM PREMIUM PLUGINS WHICH YOU CHOOSE NOT TO LICENSE AND ARE OUT OF DATE.
Plugin Compatibility
If an update to a plugin creates conflicts or causes issues with the functionality of your website, we will consult with you to determine the best course of action. Typically, we will remove the offending plugin and replace it with a similar plugin or other programming. If the time required to resolve a plugin compatibility issue exceeds 1 hour, additional time will be billable at our current hourly rate.
IT IS YOUR RESPONSIBILITY TO INFORM US IF YOUR SITE IS EXPERIENCING PROBLEMS AND NEEDS ATTENTION.
IF YOU ELECT NOT TO PURCHASE OUR WEBSITE CARE PLAN SERVICE, THE TOTAL RESPONSIBILITY IS YOURS FOR PERFORMING BACKUPS AND KEEPING WORDPRESS (AND ITS THEMES AND PLUGINS) UPDATED.
Payment and Cancellation for Website Care Plan
Payment for Website Care Plan Services is due each month through a recurring payment subscription unless a different billing schedule has otherwise been agreed upon.
You may cancel website care plan services with a 30-day notice. WE DO NOT OFFER REFUNDS ON WEBSITE CARE PLAN.
IF YOU ELECT TO DISCONTINUE THE WEBSITE CARE PLAN, THE TOTAL RESPONSIBILITY IS YOURS FOR PERFORMING BACKUPS AND KEEPING ALL COMPONENTS OF YOUR WEBSITE BACKED UP, SECURED, AND UPDATED. If you desire to migrate your website to another web host. We will at your discretion (1) provide you with an administrator login for your WordPress site so a backup can be performed and migrated to the new location, (2) provide to you a backup created using an industry standard WordPress backup system at a cost of $100, or (3) perform the website migration for you at our current hourly rate.
Your Responsibilities in Website Security
We employ basic WordPress security techniques when building your website. However, studies have shown that one of the most common ways that hackers gain access to your website is through keylogging programs installed on the infected computers of users. You agree to protect any computer that you control that will log into the website by:
- Installing and maintaining updated security software
- Using the most up-to-date version of your preferred web browser
- Keeping the operating system patched with recommended updates
- Keeping versions of other installed software up to date if they are installed
- Using a strong password (as shown by the WordPress password indicator) for any account you use to log in and edit your website, and this password will only be used on your website.
You also agree that any employees, contractors, or other entities to whom you give (or ask us to give) access to the website will meet the requirements above.
We recommend the use of a password manager so that you have strong unique passwords for every site you access.
Third-Party Services
From time to time, our clients might employ a third party (such as but not limited to a social media professional, or content writer) whose services involve modifications to the website. WE CANNOT BE RESPONSIBLE FOR THE WORK OF A THIRD PARTY. Should our services be necessary due to any work performed by a third party, these services are billable at our current hourly rate.
OUR WEBSITE CARE PLANS DO NOT COVER WORK NECESSARY DUE TO ACTIONS PERFORMED BY A THIRD PARTY. SHOULD OUR SERVICES BE NECESSARY DUE TO ANY WORK PERFORMED BY A THIRD PARTY, THESE SERVICES ARE BILLABLE AT OUR CURRENT HOURLY RATE.
Search Engine Optimization (SEO)
If we build your website, we guarantee that your site will be able to be indexed by search engines like Google and others at the time of launch. Your ranking and placement on search engines depend on a myriad of factors. WE CANNOT GUARANTEE RANKING OR PLACEMENT ON ANY SEARCH ENGINE.
Website Accessibility and Compliance
If laws require that your website is accessible to users with disabilities, or if you desire for it to be, it is your responsibility to inform us of this requirement.
If your website or any associated data must meet compliance requirements of any kind for any entity, organization, or regulatory body (such as but not limited to HIPAA, FERPA, etc.), it is your responsibility to inform us of the specific compliance requirements involved.
WE DO NOT GUARANTEE TO MEET ANY COMPLIANCE FOR ACCESSIBILITY OR OTHER REQUIREMENTS UNLESS WE HAVE EXPLICITLY AGREED TO DO SO AS PART OF THE SCOPE OF WORK.
Legal Pages and Privacy Requirements
Depending on the nature of your site and your location, legal pages such as Terms of Use and policy pages such as Privacy Policy, Return Policy, etc. may be required for your site by government entities, vendors or licensing agencies.
IT IS THE SOLE RESPONSIBILITY OF THE CLIENT TO DETERMINE WHETHER SUCH PAGES ARE REQUIRED. It is advisable to consult an attorney to determine your responsibilities in this matter. Creation of the content for these legal pages is not included in the Proposal of Services for your new website unless specifically itemized. However, if you provide the content for these pages, we will typically add them at no additional cost.
IT IS THE SOLE RESPONSIBILITY OF THE CLIENT TO INFORM US THAT YOUR WEBSITE MUST BE COMPLIANT WITH ANY REGULATORY BODY such as but not limited to the EU’s General Data Protection Regulation (GDPR) or the California Online Privacy Protection Act (CalOPPA). Compliance with these, or any other regulations or laws, must be included as a line item in the Scope of Work and accepted by you to be a part of the contract between the parties.
Email Deliverability
Occasionally, your website will send email when certain events occur such as the completion of a contact form, sale of a product, update/reset of a user’s password, etc. These emails that are automatically generated by the WordPress system are often flagged as spam (or not delivered at all) by email providers like Google/Gmail, Microsoft, Yahoo and others.
SINCE WE CANNOT CONTROL THE RECEIPT OF EMAIL, WE CANNOT BE HELD RESPONSIBLE FOR ANY EMAILS THAT WERE NOT DELIVERED TO THE CLIENT FOR ANY REASON.
IT IS THE CLIENT’S RESPONSIBILITY TO REGULARLY CHECK SPAM FOLDERS AND WEBSITE FORM AND ORDER INTERFACES FOR ANY NOTIFICATIONS THAT WERE NOT DELIVERED TO THE CLIENT’S INBOX.
Email Service
WE DO NOT PROVIDE OR SUPPORT EMAIL SERVICE TO CLIENTS. We recommend consulting with an IT Professional about implementing professional email service from a reliable vendor.
Domain Names
Registering a domain name for your website and paying the accompanying annual registration fee is your responsibility. We can assist in the process of registration and connecting your domain name to the website if you desire. You can purchase your domain name for multiple years, or renew it annually at your discretion. It is your responsibility to ensure that the credit card the domain registrar has on file for your domain registration is current for rebilling.
WE ARE NOT RESPONSIBLE FOR SUSPENSION OR LOSS OF DOMAIN NAMES BECAUSE YOUR CARD COULD NOT BE BILLED OR FOR ANY OTHER REASON. If you lose access to your domain name through non-payment, suspension or any other reason, your website will no longer be accessible or viewable by the public. Work needed as a result of domain expiration is billable at our current hourly rate.
Our Employees and Contractors
From time to time we may utilize employees and independent contractors to work on your project. Some of these employees and contractors may work outside the United States. You agree not to directly contact or solicit any of our employees and contractors for employment or contract work of any kind.
Disclosure to Law Enforcement
We will disclose information about our clients to law enforcement agencies without further consent or notification to the client upon lawful request from such agencies. We will cooperate fully with the legal requests of law enforcement agencies.
Indemnification
The Client agrees to indemnify and hold harmless the Company, its subsidiaries, contractors, employees and affiliates and each of their respective directors, officers, employees, shareholders and agents (each an “Indemnified Party”) against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or related to the Agreement, Client’s use of the Services, breach of any confidentiality obligation or any alleged infringement of any trademark, copyright, patent or other intellectual property right and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party, in connection with investigating, defending, or settling any Loss, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
Choice of Law and Forum
This Agreement, and any related Statements of Work, shall be construed in accordance with, and governed by, the laws of the State of Massachusetts without regards to Conflict of Law principles.
In the event of any dispute or disagreement with respect to the meaning, effect or interpretation of this Agreement or in the event of a claimed breach of this Agreement, the parties hereto agree that such dispute shall be determined through mediation. The parties will mutually select a mediator and share the cost of mediation equally. If the parties cannot agree upon a mediator then each party shall select a mediator and those mediators shall, independent of party input or control, select a mediator to mediate the dispute.
Unless otherwise mutually agreed, the location of the mediation will be in Norfolk County, Massachusetts. The parties agree to cooperate fully with the mediator in good faith in order to reach a mutually satisfactory resolution of the dispute. If the dispute is not resolved within 60 days after it is referred to the mediator, either party has the option to litigate the dispute in a court of law located in Norfolk County, Massachusetts.
Refusal or Discontinuation of Service
We reserve the right to refuse, restrict or terminate service to any client for any reason.
Disclaimer of Warranty
We will perform our work in accordance with good industry practices and at the standard expected from a suitably qualified person with relevant experience. We cannot guarantee that our work will be error-free and so we cannot be liable to you or any third-party for damages, including lost profits, lost savings or other incidental, consequential or special damages, even if you’ve advised us of them.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT SERVER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL.
Limitation of Damages or Liability
IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE COMPANY, ITS AFFILIATES AND ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, FOR HARM CAUSED BY OR RELATED TO THE CUSTOMER'S SERVICES OR INABILITY TO UTILIZE THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
NOTWITHSTANDING ANYTHING ELSE IN THIS MASTER SERVICES AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF THE COMPANY ANY OF ITS EMPLOYEES, AGENTS, CONTRACTORS OR AFFILIATES, UNDER ANY THEORY OF LAW SHOULD NOT EXCEED THE AMOUNT OF FEES IT HAS COLLECTED ON THE CUSTOMER’S ACCOUNT IN THE LAST SIX MONTHS.
Severability
No part of this Agreement will be affected if any other part of it is held unenforceable or invalid.
Headings
The headings in this Agreement are inserted for convenience only and are not a part of this Agreement.
Entire Agreement
This Agreement, and any Proposals of Service attached, constitute the entire agreement and understanding of the parties with respect to the transactions contemplated hereby and supersedes any and all prior agreements and understandings relating to the subject matter hereof. This Agreement may not be waived, assigned, extended, amended, supplemented or modified orally, but only by a written instrument signed by the party against whom enforcement of any such waiver, assignment, extension, amendment, supplement or modification is sought.
Modifications
This Agreement may not be changed or modified except in writing signed by the parties.
Construction
The parties acknowledge and agree that they have read, understood and have actively negotiated the terms of this Agreement, participated in its drafting and have been represented by legal counsel. Therefore, this Agreement shall not be deemed to be the product of either party and shall not be enforced or interpreted any more stringently or strictly against either party.
Assignability
Neither the Company nor the Client may assign this Agreement without the prior consent of the other.
Acceptance
Please note that you are agreeing to all of our terms of service as they are written here. KMA Web Design, LLC reserves the right to change or update these terms at any time without prior notice. The client agrees to the terms of this agreement on behalf of his or her organization or business. This Agreement constitutes the entire understanding of the parties. Any changes or modifications thereto must be in writing and signed by both parties.
Please contact us with any questions regarding the KMA Web Design, LLC terms of service by email at kerry@kmawebdesign.com.