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 7th Circle Designs. “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 and phone Monday through Friday from 9:00 am to 5:00 pm Central 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 phone and email are 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) to communicate since we cannot track these requests as a team.
WEB SITE
Acceptance. Prior to accepting to provide the Hosting Services, 7th Circle Designs will analyze Client’s Web Site to ensure that it meets the criteria (the “Criteria”) needed for it to properly provide the Hosting Services.
Adjustment. If the Web Site does not meet the Criteria, Client may request that 7th Circle Designs adjust the Web Site so as to conform to such Criteria, at Client’s expense.
WEB SITE HOSTING SERVICES
Hosting Services. Subject to Acceptance, 7th Circle Designs shall install and host the Web Site on its servers located in the United States. 7th Circle Designs shall host the Web Site (the “Hosting Services”) in a professional and workmanlike manner in accordance with the terms and conditions of this Agreement. Without limiting the generality of the foregoing, 7th Circle Designs shall be responsible for the Hosting as may be required for the hosting of the Web Site in accordance with the provisions of this Agreement. Backups and recovery services are available for an additional fee.
Access and Updates by Client. 7th Circle Designs will provide secure access to its server so that Client may update the Client content. Client acknowledges and agrees that access to and use of the Web Site will be in accordance with 7th Circle Designs ’s terms of use and privacy policy posted on its website.
User Information. 7th Circle Designs agrees that all information collected by 7th Circle Designs about users of the Web Site (the “User Information”), all traffic data and all content posted or uploaded on the Web Site by Users (the “User Content”) shall belong to Client. 7th Circle Designs agrees to treat the User Information and User Content as confidential and agrees that it shall not use the User Information and User Content in any manner without the prior written consent of Client.
Site Backup. 7th Circle Designs shall, at its expense, make a complete backup of the Website every day which is stored for a few days then it is automatically deleted. 7th Circle Designs shall also, at its expense, maintain a complete and daily updated copy of such Website backups on a second server located at a remote location as additional protection for a few days then it is automatically deleted.
Client Responsibility regarding Back-ups: The Client is solely responsible for keeping a copy of the backup of its Web Site and data.
Support Requests: 7th Circle Designs is open during normal business hours from Monday to Friday. Support requests sent over the weekend will be deemed received the next business day.
Emails not included in the hosting: It is understood that 7th Circle Designs strictly does not provide any email services with the website hosting service. All emails services will be external services from any provider the client wants to use for his emails such as Microsoft Office 365, Google Apps, or other email providers.
The access to the manual emails setups is not blocked, a technologically knowledgeable client could decide to setup himself his emails on our server anyway but that feature is not included in this agreement, is not supported, is not recommended and should not to be used. 7th Circle Designs does not provide any email services.
Payment and Cancellation for Website Management Services
Payment for Website Management Services is due on the first day of the period (monthly, quarterly, or annually) in which that service will be performed.
You may cancel website management services with a 30-day notice. WE DO NOT OFFER REFUNDS ON WEBSITE HOSTING.
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.
Late Payment and Collections Policy
All invoices pertaining to web hosting, security, maintenance, or any other work on your website are payable on receipt. If an invoice goes unpaid for more than 30 days after the invoice was sent, WE RESERVE THE RIGHT TO SUSPEND YOUR WEBSITE FROM PUBLIC VIEW UNTIL ALL OUTSTANDING BILLS ARE CURRENT.
Amounts due and unpaid shall bear an interest at the rate of twelve percent (12%) per annum. Client agrees to pay all costs of collection, including reasonable attorney’s fees, as additional sums owed under this Agreement. Client further acknowledges and agrees that if a check tendered for payment is not honored by the bank for non-sufficient funds (“NSF”), it will not be re-deposited. If the bank does not clear the check, the Client will incur a fee of $30. The Client must immediately send a certified check or money order for the amount due, including the NSF fee, to the Company to cover returned check.
If the current hosting plan is exceeded, then Client will automatically be upgraded to the next level of the hosting plan and shall be deemed to have accepted the increased fees (ex: 30$/month upgraded to 60$/month).
If the client’s website is infected by any Virus/Trojan/Malware or any type of script or code defect which compromise the security of its website, of the server, or the performance of the server, or the server’s IP addresses reputation (in case of spam), 7th Circle Designs reserves the right to suspend the hosting account and put offline the website and not reactivate the account until the problem has been fixed at client’s expenses. 7th Circle Designs might offer a quote to fix such problems if its programmers are available but it is the client’s responsibility to keep his website secure. The client may not claim any damages what so ever direct or indirect if 7th Circle Designs is forced to suspend the hosting account.
The client must have a care plan provided by 7th Circle Designs.
TERMS AND TERMINATION
Term. This Agreement shall become effective on the Effective Date and shall continue for one (1) month or year from the Effective Date (the “Term”) based on the plan selected, unless terminated earlier in accordance with this Article.
Renewal. This Agreement shall automatically renew for a subsequent one (1) month or year period, unless either Party provides the other Party with a written notice of its intention not to renew the Agreement no later than thirty (30) days prior to the end of the then-current Term.
Respect of Term. The Client renounces its right to terminate this Agreement during the Term. If the Client terminates this Agreement prior to the end of the Term, it will be responsible to pay for the Hosting Services as though they were fully and completely provided up to the end of the Term, as reasonably estimated by 7th Circle Designs in its sole discretion.
Termination for Material Breach. In the event of any material breach of the terms and conditions of this Agreement, including but not limited to not carrying out the Hosting Services described in this Agreement by 7th Circle Designs , non-payment by the Client of amounts owed or breach of confidentiality obligations herein, the non-breaching Party may terminate this Agreement by giving fifteen (15) days prior written notice to the other Party. This Agreement shall not terminate however, if the other Party has cured the breach prior to the expiration of such fifteen (15) day period to the satisfaction of the non-breaching Party.
Termination Without Notice. This Agreement may be terminated immediately, without notice, upon:
- (a) the institution by or against either Party of insolvency, receivership, or bankruptcy proceedings;
- (b) either Party making an assignment for the benefit of creditors; or
- (c) either Party’s dissolution.
Upon expiry or Termination without Notice, 7th Circle Designs will cease to host the Web Site and will cease performing the Hosting Services and shall forthwith remove the Web Site from servers used by 7th Circle Designs or on its behalf to operate the Web Site.
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 relate 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 Texas 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 Denton County, Texas. 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 Denton County, Texas.
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.
