1. Services to Be Performed.
Contractor agrees to maintain Client’s existing website at the Web address: _____________ (the “Site”).
“Maintenance” refers to providing technical support and guidance on a recurring basis to maintain the functionality, appearance, and operation of the Site. Contractor will provide the following Maintenance services (the “Services”):
- Technical support necessary to maintain reliable performance of the features and functionality of the Site
- Consulting and new development services
- Modifications of the Site to operate within new versions of existing browsers
- Simple navigational, graphic, linking, and text changes and updates
- Simple changes to existing page designs and addition of new pages within the existing page templates
- Periodic Site backup
- Recovery from disasters including denial-of-service attacks, hacking, and server breakdowns, and
- Performance monitoring.
- Additional Services provided by Contractor are listed on Exhibit A, attached.
“Maintenance” does not refer to major changes to the Site that require redevelopment, re-alignment, new page or CMS designs, major recoding of the Site, integration of blogs, shopping carts, and Web forums, or major formatting to optimize the Site for non-traditional browsers such as mobile device, or marketing or search engine optimization advice. (“Non-maintenance Services”). If Client desires any Non-maintenance Services, Client shall negotiate with Contractor separately and in good faith for such services.
2. Authorization.
If applicable, Client authorizes Contractor to access the Site’s hosting account located on the following ISP’s host computer: ______________________.
3. Payment.
In consideration for the Services to be performed by Contractor, Client agrees to pay Contractor at the rate of $250 per month according to the terms of payment set forth below. Contractor’s total compensation shall not exceed $250 without Client’s written consent.
4. Terms of Payment.
Contractor shall send Client an invoice monthly. Client shall pay Contractor within 10 days from the date of each invoice.
5. Late Fees.
If Client is late paying Contractor, Contractor’s damages will be difficult to measure. As a reasonable estimate of the damages Contractor will sustain, and as liquidated damages and not as a penalty, Client agrees to pay Contractor an additional 10% per month interest charge on the amount owed.
6. Expenses.
Contractor shall be responsible for all expenses incurred while performing services under this Agreement.
However, Client shall reimburse Contractor for all reasonable travel and living expenses necessarily incurred by Contractor while away from Contractor's regular place of business to perform services under this Agreement. Contractor shall submit an itemized statement of such expenses. Client shall pay Contractor within 30 days from the date of each statement.
7. Materials.
Contractor will furnish all materials and equipment used to provide the services required by the Agreement.
8. Intellectual Property Ownership.
Contractor licenses to Client the following intellectual property rights in the work created or developed by Contractor under this Agreement: any modifications to HTML code or CMS.
This license is conditioned upon full payment of the compensation due Contractor under this Agreement. Contractor reserves all rights not expressly granted to Client by this Agreement. The rights granted above are nonexclusive.
9. Reusable Materials.
Contractor owns or holds a license to use and sublicense various materials in existence before the start date of this Agreement ("Contractor's Materials"). Contractor's Materials include, but are not limited to, those items identified in Exhibit A, attached to and made part of this Agreement. Contractor may, at its option, include Contractor's Materials in the work performed under this Agreement. Contractor retains all right, title, and interest, including all copyrights, patent rights, and trade secret rights, in Contractor's Materials. Contractor grants Client a royalty-free nonexclusive license to use any of Contractor's Materials incorporated into the work performed by Contractor under this Agreement. The license shall have a perpetual term and may not be transferred by Client.
10. Releases.
Client shall obtain all necessary copyright permissions and privacy releases for materials included in any Web pages at Client's request. Client shall indemnify Contractor against all claims and expenses, including reasonable attorney fees, due to Client's failure to obtain such permissions or releases.
11. Copyright Notice and Credit Line.
A copyright notice and credit line in Contractor's name shall be placed in the following location: in documentation of proprietary modules and themes, and in the following form: Ó Avalon MIS
12. Term of Agreement.
This agreement will become effective when signed by both parties and will terminate on the earliest of:
the date Contractor completes the services required by this Agreement
or the date a party terminates the Agreement as provided below.
13. Terminating the Agreement.
Either party may terminate this Agreement at any time by giving 30 days’ written notice of termination. Contractor shall be entitled to full payment for services performed prior to the date of termination.
14. Independent Contractor Status.
Contractor is an independent contractor, not Client’s employee. Contractor’s employees or subcontractors are not Client’s employees. Contractor and Client agree to the following rights consistent with an independent contractor relationship:
- Contractor has the right to perform services for others during the term of this Agreement.
- Contractor has the sole right to control and direct the means, manner, and method by which the services required by this Agreement will be performed.
- Contractor has the right to hire assistants as subcontractors or to use employees to provide the services required by this Agreement.
- Contractor or Contractor's employees or subcontractors shall perform the services required by this Agreement; Client shall not hire, supervise, or pay any assistants to help Contractor.
- Neither Contractor nor Contractor's employees or subcontractors shall receive any training from Client in the skills necessary to perform the services required by this Agreement.
- Client shall not require Contractor or Contractor's employees or subcontractors to devote full time to performing the services required by this Agreement.
- Neither Contractor nor Contractor's employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of Client.
15. Local, State, and Federal Taxes.
Contractor shall pay all income taxes and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. Client will not:
Withhold FICA from Contractor's payments or make FICA payments on Contractor's behalf;
Make state or federal unemployment compensation contributions on Contractor's behalf; or
Withhold state or federal income tax from Contractor's payments.
The charges included here do not include taxes. If Contractor is required to pay any federal, state, or local sales, use, property, or value added taxes based on the services provided under this Agreement, the taxes shall be separately billed to Client. Client shall be responsible for paying any interest or penalties incurred due to late payment or nonpayment of any taxes by Client.
16. Exclusive Agreement
This Agreement constitutes the entire agreement between the parties. It supersedes any and all understandings or representations of any kind prior to the date of this Agreement. Any exhibits and attachments to this Agreement are incorporated by reference.
17. Modifying the Agreement.
Client and Contractor recognize that:
Contractor's original cost and time estimates may be too low due to unforeseen events or to factors unknown to Contractor when this Agreement was made;
Client may desire a midproject change in Contractor's services that would add time and cost to the project and possibly inconvenience Contractor; or
Other provisions of this Agreement may be difficult to carry out due to unforeseen circumstances.
If any intended changes or any other events beyond the parties' control require adjustments to this Agreement, the parties shall make a good faith effort to agree on all necessary particulars. Such agreements shall be put in writing, signed by the parties, and added to this Agreement.
18. Resolving Disputes.
If a dispute arises under or relating to this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in San Luis Obispo County. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties. If the dispute is not resolved within 30 days after it is referred to the mediator, any party may take the matter to court.
If any court action is necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs, and expenses in addition to any other relief to which the party may be entitled.
19. Limited Liability.
Contractor's total liability to Client under this Agreement for damages, costs, and expenses shall not exceed $250 or the compensation received by Contractor under this Agreement, whichever is less.
Contractor shall remain liable for bodily injury or personal property damage resulting from grossly negligent or willful actions of Contractor or Contractor's employees or agents while on Client's premises to the extent such actions or omissions were not caused by Client.
NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE FOR THE OTHER'S LOST PROFITS, OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES.
20. Notices.
All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows:
When delivered personally to the recipient's address as stated on this Agreement
Three days after being deposited in the United States mail with postage prepaid to the recipient's address as stated on this Agreement, or
When sent by fax or electronic mail, such notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first class mail or the recipient delivers a written confirmation of receipt.
21. No Partnership.
This Agreement does not create a partnership relationship. Neither party has authority to enter into contracts on the other’s behalf.
22. Governing Law.
This Agreement will be governed by the laws of the state of
23. Assignment and Delegation.
Either Contractor or Client may assign rights or may delegate duties under this Agreement.
SIGNATURES
Name of Client: ________________________________________________________________________
Signature: ________________________________________________________________________
Printed Name: ________________________________________________________________________
Title: ________________________________________________________________________
Date: ________________________________________________________________________
Name of Contractor: ________________________________________________________________________
Signature: ________________________________________________________________________
Printed Name: ________________________________________________________________________
Title: ________________________________________________________________________
Taxpayer ID Number: ________________________________________________________________________
Date: ________________________________________________________________________
Exhibit A
Additional Services:
Website Hosting Services Included: Professional hosting plan with 5 GB Storage and 30 GB of Bandwidth. Also includes 50 Email accounts.
