Introduction

Pay Now Direct, Inc. is a corporation registered in California. “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 at our hourly rate at the signing of this Agreement. In the future, our hourly rate may change. 

The Project

You are hiring us to complete your project according to the specific scope of work we described in the proposal of services document you will receive. The proposed cost of the project in the proposal includes only this work. When you hire us, we are independent “work for hire” contractors, not employees of you or your business.

Availability and Communication

We are available via email and phone Monday through Thursday from 9:00 am to 4:30 pm and Fridays from 9:00 am to 2:00 pm pacific time. Our average response time is within four hours, though our response time may vary. We do not work on weekends or holidays. Clients with current website management services receive priority response times. 

Emails are the official means of communication for our work. A request to change a contract deliverable MUST be made by email with the email subject “Contract Change…”. Communications via SMS, social media, or instant/private messaging (like Telegram) are not official communications platforms since we cannot track these requests in our Customer Relationship Management (CRM) as a ticket.

The Proposal of Services

If the Client requests additional services, the parties may enter into one or more other Proposals of Service. The Proposal of Services details the work we will deliver to you, including, without limitations, the deliverables and specifications and any compensation to be paid for such work. If there is a conflict between this Master Services Agreement and any part of the Proposal of Services, the terms of the Proposal of Services shall be binding.

Time Frames

Unless specifically defined in the Proposal of Services, we do not guarantee website launch by a specific date. Our experience is that a typical website design project takes about six weeks (not including holidays). This is a rough estimate and depends on several factors, including but not limited to the complexity of your project, our current workload, material availability, and any problems that might arise as we work on your project. 

We have an active work queue and do not place your project in that queue until your deposit (explained below) has been received. While we endeavor to start your project quickly, we will not begin your project until it reaches the front of our queue so that it can obtain our full attention. 

Delayed, Suspended, and Abandoned Projects

In our experience, projects can often stall as we wait on assets, information, feedback, approvals, etc., that we have requested from you. While waiting for your response, we will generally begin to work on other projects to use our time efficiently. 

A project is delayed if your response to our request for assets, information, feedback, approvals, etc., is delayed for more than five business days. When a project is delayed, we may remove it from our active queue and place it at the back of the line. Work will resume on a delayed project when we have received what was requested, and our work queue allows us to focus on your project again.

A project is considered suspended if your response to our request for assets, information, feedback, approvals, etc., is delayed for more than 45 days without a reasonable cause as determined by us. When a project is suspended, an invoice for the remaining balance of the project shall be sent and considered due upon receipt. 

ONCE A PROJECT IS SUSPENDED, IT IS THE SOLE RESPONSIBILITY OF THE CLIENT TO REACTIVATE THE PROJECT BY (1) SUPPLYING ALL ITEMS NECESSARY TO COMPLETE THE PROJECT AND (2) PAYING THE BALANCE OF THE PROJECT IN FULL.

After a project is suspended, we will not perform any additional work until the project has been reactivated, as explained above.

A project is considered abandoned if your response to our request for assets, information, feedback, approvals, etc., is delayed for more than 90 days without a reasonable cause as determined by us. WHEN A PROJECT IS ABANDONED, ANY MONIES PAID TO US FOR THE PROJECT IN QUESTION SHALL BE FORFEITED.

Rush Projects

Projects requiring a “Rush” typically incur at least 25% of the total project cost. This increase is necessary to cover the overtime and additional expenses incurred to complete your project in the required time frame.

Change Budget

Our experience is that changes to the scope of work often occur during a project. These changes usually require additional costs and time. We typically include a Change Budget in the Proposal of Services to allow for these change requests. 

The Change Budget is approved as part of the Proposal of Services and is used only if you request changes to the original scope of work or want to make changes to previously approved items. We will provide a separate scope of work for the changes you request and a cost for these changes. When you approve this scope and price, the amount will, at our discretion, be payable immediately or on the final project invoice.

Payment Schedule 

In consideration of the services provided hereunder, the parties agree that the Company shall be paid in accordance with any Proposals of Service executed by the Parties pursuant to this Agreement. 

Our standard payment terms are:

• 50% of the Cost of Proposed Scope of Work due as a non-refundable deposit upon execution of the Proposal of Services and this Master Services Agreement
• The remaining 50% and amount of the change budget utilized is due before the project launch

Before the website launch, the project must be paid in full, including any amount of the change budget.

At our discretion, in some instances, we may request that payments be made at certain additional milestones. If milestone payments are necessary, they will be specifically detailed in the Services Proposal. 

Payment Methods 

Payment to us can be made using a check, ACH, or major credit card. Postdated checks are not an acceptable form of payment.

Credit card surcharge:

If a payment exceeds $500 and you elect to pay by credit card or PayPal, a 3% surcharge may be added to your invoice to cover processing charges.

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 interest at twelve percent (12%) per annum. The Client agrees to pay all collection costs, including reasonable attorney’s fees, as additional sums owed under this Agreement. The Client further acknowledges and agrees that it will not be re-deposited if a check tendered for payment is not honored by the bank for non-sufficient funds (“NSF”). 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. 

Termination and Refunds

This Agreement may be terminated immediately by either party upon written notice for any of the following:

• Upon thirty (30) days prior written notice by either party to the other party, or
• If the other party defaults in the performance of any material provision of this Agreement, which default is not cured within thirty (30) days after written notice from the non-defaulting party.

IF YOU WISH TO TERMINATE THE PROJECT AFTER THIS AGREEMENT HAS BEEN EXECUTED, YOUR INITIAL 50% DEPOSIT IS NON-REFUNDABLE FOR ANY REASON. 

IF YOU ELECT TO TERMINATE THE PROJECT AT ANY POINT AFTER PHASE THREE HAS BEGUN (AS DEFINED IN “OUR WEBSITE CREATION PROCESS” BELOW), YOU WILL BE LIABLE FOR THE ENTIRE COST OF THE PROJECT.

If we elect to terminate a project, we will create an estimate of the percentage of the scope of work that has been completed. If the percentage of work completed is less than the percentage of the project that has been paid, we will issue a refund for the difference. If the portion of the project that has been completed is more than the percentage of the project that has been paid, an invoice will be issued for the difference. 

Assets for a terminated project (such as the website, custom graphics, etc.) will be delivered to the Client when the Client’s account reaches a zero balance.

Intellectual Property Rights (Who Owns What)

Your new website will be built using the WordPress content management system. WordPress and its associated software are “open source,” distributed under the GNU General Public License. We use WordPress to power your website, but neither of us “own” WordPress or the third-party plugins used to add features to your website. When you hire us to build your website, you are not purchasing WordPress; you retain our services to create a customized website using the WordPress system.

When we utilize images or other content licensed for use on your website by a third party, that party retains ownership of the content in question according to the terms of their license agreements. For example, if we use a stock photo on your site, you typically pay for the license to use the image on your site, but you do not own that photo. If you have questions about licensing issues like this, ask.

When your project is completed, or payment in full for your project has been received and provided that this contract hasn’t been terminated, we’ll assign intellectual property rights to you as follows:

You own the website and visual elements we create for you. Upon request, we will provide the source files for any custom artwork created for your project. You own all intellectual property rights of text, images, site specifications, and data you provided unless someone else owns them.

We own the unique combination of these elements that constitutes a complete design, and we’ll license its use to you, exclusively and perpetually only for the projects you hire us for unless we agree otherwise.

We own intellectual property rights to anything we have developed before or separately from this project. While creating your website, we may create design, code, functionality, and processes. While this work is used on your website, we retain ownership of these as our intellectual property and reserve the right to use them in future projects. This re-use helps us serve our prospective clients better, just as your website will benefit from what we have learned and developed in previous projects.

Our Website Creation Process

Our typical website creation process is described below. This process may change based on the requirements of your project. If changes to this process are required, they will be outlined in the Proposal of Services.

PHASE ONE: Content

• We will give you a “Design Brief” to help us understand the colors and designs you prefer for your new website, which will be used in Phase Two. 
• If a logo design is part of the project, we will not begin to create the design concept until your new logo has been completed since we want the new design to coordinate with your new logo.
• Phase One concludes when we receive the assembled content for the website, including the completed Content Guide, Design Brief, and all assets (logos, photos, videos, etc.) that will be used on the website.

PHASE TWO: Concept

• Based on the information you provide in the Design Brief and other assets you supply, we will produce a design concept that has been created to reach your target audience effectively. 
• We will work with you to adjust the design concept until you are satisfied.
• Phase Two concludes when you approve the design concept for your website.

PHASE THREE: Development

• The design concept layout approved in Phase Two is converted into a customized WordPress website, pages are built, and functionality is added. 
• Phase Three concludes when we complete the website and submit it to you for revisions.

PHASE FOUR: Revisions

• You review the website for design and content and create a list of revisions that need to be made. 
• Revisions are minor updates and changes to existing content.
• The Change Budget is used for change requests such as but not limited to:
  • New functionality you want to add to the project
  • Revisions to previously approved items, including design concepts supported in Phase Two
  • Other modifications requested in this phase that would exceed 4 hours in total to accomplish
• Phase Four concludes when you approve the requested revisions, and the final payment is received.

PHASE FIVE: Launch

We will publish your website so that it is viewable on your domain name. Important Note: Due to the nature of the Internet, it can take 24 hours or longer for a newly published website to be viewable by everyone.

Compatibility

Your new website will be designed for viewing on modern screens for desktops, laptops, and mobile devices. We test for compatibility in the following desktop web browsers: Microsoft Edge, Mozilla Firefox, Apple Safari, and Google Chrome. We test for compatibility on the following mobile web browsers: Apple Safari (iOS) and Google Chrome (iOS and Android).

Unless specifically requested by the Client, we do not code for web browsers or operating systems older than the current release or for those in pre-release or beta when the project begins. There will typically be additional charges for this work.

Theme and Plugin Licenses and Updates

One of the most critical strengths of WordPress is its immense ecosystem of third-party add-on software called themes and plugins. Some of these require no specific licensing for use on your website. However, we often use premium WordPress themes and plugins that require an annual licensing fee for ongoing updates and support.

• • Premium themes and plugins used on your website are provided in their current software version. 
  • Our website management service covers future updates and security patches for premium themes and plugins.

• WE CAN NOT GUARANTEE UPDATES OR SECURITY PATCHES FOR ANY PREMIUM THEMES AND PLUGINS USED ON YOUR SITE IF YOU OPT NOT TO PARTICIPATE IN OUR WEBSITE MANAGEMENT SERVICE (see below).

Changes After Launch

The design project described by the Scope of Work in the Proposal of Services concludes when your website is launched. Though we are happy to help you with changes to your website after launch, any changes or modifications that were not included in the original scope of work, other than fixing existing bugs (see below), are billable at our current hourly rate.

An “existing bug” is an error in the programming we provided that existed before launch and affected the operation or appearance of your website.

Additional costs at our current hourly rate will be incurred for future support requests such as but not limited to:

• Your website has problems or stops working after an update to WordPress or any plugins or software you use (note: our website hosting plans cover these ongoing compatibility issues, see below).
• You or a third party add code or a plugin to your site that affects its operation.
• It would be best if you had assistance adding new plugins or features to your site that wasn’t included in the original project.
• A new version of a web browser has issues displaying your website correctly.
• You or a third party make changes or alterations to any part of the site.
• Your site gets hacked or compromised, and you lose files or data.

The Use of Third-Party Assets

By providing any assets such as text, images, artwork, or other elements to us, you guarantee that you either own them or that you have secured permission from the owner to use them. You agree to protect us from any claim by a third party that the assets you supplied to us are their intellectual property.

We guarantee that we either own all elements of the work we deliver to you or that we have obtained appropriate permission from the owner to provide them to you. We agree to protect you from any claim by a third party that the assets we delivered as part of the project are their intellectual property.

Securing the appropriate licenses for photography you provide us to use on your website is your responsibility. If you doubt the licensing status of an image, contact the original artist before delivering it for us to use in your design project. You assume the entire risk of liability for the use of all images.

We often utilize royalty-free images obtained from stock photo websites. The cost for licensing this stock photography is not included in the proposal unless specifically itemized. We will secure your approval before purchasing any stock photography. Stock photo charges are typically billed on the final project invoice.

Website Hosting

Pricing in our proposal assumes that you will also purchase our website management service, which includes website hosting. Our website hosting is optimized for our workflow. Since using other servers typically requires a change in our workflow (and makes the project take longer as a result), a surcharge will usually be added to your proposal if we do not host your website.

In addition, if you elect not to host on our server, we cannot be responsible for the speed of your website, the performance of any of your website features, security certificates for your website, the uptime of your website, or any other hosting related matter. 

FIXING ANY PROBLEMS RELATED TO WEB HOSTING OR PROJECT DELAYS RELATED TO WEB HOSTING ON A SERVER OTHER THAN OUR OWN IS BILLABLE AT OUR CURRENT HOURLY RATE. 

We use commercially reasonable efforts to make sites we host available 99.9% of the time during each monthly billing cycle. If we cannot meet this service level, you will be eligible to receive a credit to apply to future billing cycles based on the month’s unavailability. For this Agreement, unavailability means that either your website is unresponsive or your website returns a server error response to valid user requests for more than 60 seconds.

Scheduled maintenance is defined as maintenance that is announced at least two days in advance and does not exceed one hour in any month. Typically, scheduled maintenance occurs in off-peak hours (usually in the early morning). Unavailability resulting from scheduled maintenance is excluded from these conditions and will not be considered for service credit calculations.

Service credits will be calculated as a percentage of the bill for the billing cycle that the unavailability occurred. The percentage for the credit will be calculated by dividing the number of minutes of unavailability by the total number of minutes in that billing cycle. THE CUSTOMER MUST REQUEST SERVICE CREDITS WITHIN 7 DAYS OF THE UNAVAILABILITY OCCURRING.

Website Management Service

Our Website Management includes website hosting, website software updates, website backups, and website security.

• Website Security
  Our lockdown protocol hardens the WordPress system to make it more resistant to the actions of hackers. We employ industry-leading security software that actively guards your website against hack attempts in the WordPress system at multiple levels.
• Website Backups
  Your website’s files and the database will be backed up automatically according to your hosting Agreement. This backup is stored in our cloud data vault, where we typically retain the previous ten backups for your site.
• Software Updates
  Each week, 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 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. However, if your site is hacked, we will restore it to pre-hack condition at no additional cost by restoring a site backup or performing a malware cleanup at our discretion.

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 result from 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 two restorations in any 30 days. 
• Additional user error-related restorations will be performed at our current hourly rate with a one-hour minimum.

Premium (Paid) Themes and Plugins

• Many websites use themes and 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 plugins used by your website, the cost for recurring license fees are included in your Website Hosting Agreement, and licensing will be maintained for you as long as you are an active subscriber to our Website Management Services.
• If your website uses premium themes and 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 plugins you will need to maintain licensing and assist you as required in obtaining them.

WE CAN NOT BE HELD LIABLE FOR PROBLEMS SUCH AS BUT NOT LIMITED TO HACKS, INOPERABILITY, OR INCOMPATIBILITY 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 another program. If the time required to resolve a plugin compatibility issue exceeds one 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.three 

IF YOU ELECT NOT TO PURCHASE OUR WEBSITE MANAGEMENT SERVICE, THE TOTAL RESPONSIBILITY IS YOURS FOR PERFORMING BACKUPS AND KEEPING WORDPRESS (AND ITS THEMES AND PLUGINS) UPDATED. 

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 AGREEMENTS.

IF YOU ELECT TO DISCONTINUE WEBSITE MANAGEMENT SERVICES, 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 (1) provide you with an administrator login for your WordPress site so a backup can be performed and migrated to the new location, and (2) provide you a backup created using an industry-standard WordPress backup system at the cost of $100, or (3) perform the website migration for you at our current hourly rate which your Hosting Agreement contract may cover.

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 hackers gain access to your website is through keylogging programs installed on users’ infected computers. You agree to protect any computer 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
• Maintaining versions of other installed software up to date if they are installed.

You also agree to use a strong password (as shown by the WordPress password indicator) for any account you use to log in and edit your website and that this password will only be used on your website. We recommend the use of a password manager so that you have strong, unique passwords for every site you access.

Third-Party Services

WE CAN NOT BE RESPONSIBLE FOR THE WORK OF A THIRD PARTY. From time to time, our clients might employ a third party (such as but not limited to a Search Engine Optimization professional, social media professional, or content writer) whose services involve modifications to the website. 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 MANAGEMENT PLANS DO NOT COVER THE 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)

Your ranking and placement in search engines depend on a myriad of factors. 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. Additional SEO services are not included in your project unless itemized explicitly in the services proposal. WE CAN NOT GUARANTEE RANKING OR PLACEMENT ON ANY SEARCH ENGINE.

Website Accessibility and Compliance

If laws require that your website be accessible to users with disabilities, or if you desire it to be, it is your responsibility to inform us of this requirement. 

If your website or any associated data must meet the compliance requirements of any entity, organization, or regulatory body (including 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 IN WRITING TO DO SO.

Legal Pages and Privacy Requirements

Depending on the nature of your site and 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. The 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 advisable to consult an attorney to determine your responsibilities in this matter.

If we provide standardized privacy policies and terms of use, we do not guarantee that this language complies with any governing body’s requirements. YOU SHOULD HAVE ANY STANDARDIZED LANGUAGE REVIEWED BY YOUR ATTORNEY.

IT IS THE SOLE RESPONSIBILITY OF THE CLIENT TO INFORM US THAT YOUR WEBSITE MUST BE COMPLIANT WITH ANY REGULATORY BODY, including but not limited to the EU’s General Data Protection Regulation (GDPR) or the California Online Privacy Protection Act (CalOPPA). Compliance with regulations such as these will generally result in an additional charge.

Email Deliverability 

Occasionally, your website will send an 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 CAN NOT CONTROL THE RECEIPT OF EMAILS, WE CAN NOT BE HELD RESPONSIBLE FOR ANY EMAILS THAT WERE NOT DELIVERED TO THE CLIENT FOR ANY REASON FROM WORDPRESS. 

HOWEVER, PAY NOW DIRECT WILL INSTALL SENDGRID SOFTWARE ON THE WEBSITE TO PROVIDE DOMAIN AUTHORITY. GOOGLE AND OTHER SEARCH ENGINES WILL THEN RECOGNIZE YOUR URL AND WILL PERMIT THE DELIVERY OF THE EMAIL MESSAGE MOST OF THE TIME. HOWEVER, EMAIL DELIVERY IS NOT GUARANTEED

IT IS THE CLIENT’S RESPONSIBILITY TO REGULARLY CHECK SPAM FOLDERS AND WEBSITE FORMS AND ORDER INTERFACES FOR ANY NOTIFICATIONS THAT WERE NOT DELIVERED TO THE CLIENT’S INBOX.

Email Service

WE STRONGLY URGE YOU TO USE GOOGLE WORKSPACE FOR ITS ABILITY TO MANAGE EMAIL AND COLLABORATE ON DOCUMENTS. WHILE WE DO NOT PROVIDE SUPPORT FOR EMAIL ISSUES, WE CAN SOLVE BASIC ISSUES YOU MAY HAVE. 

Domain Names

Registering a domain name for your website and paying the accompanying annual registration fee is your responsibility. We can assist in registering 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 currently 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. Work needed due to domain expiration is billable at our current hourly rate.

Testimonials, Marketing, and Attribution Links

We reserve the right to use your project as an example in our promotional materials, including but not limited to case studies, web pages, blog posts, social media posts, magazine articles, and videos. We will place an attribution link in the footer of your website that links back to our home page. At the end of your project, we may also ask you for a quote describing your experience working with us. We may also ask you to be a reference should any future clients desire to speak with people we’ve worked with in the past.  

Our Contractors

From time to time, we may utilize independent contractors to work on your project. Some of these contractors may work outside the United States. You agree not to directly contact or solicit contractors we use on your project for employment or contract work.

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 demands 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 costs thereof (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arising 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 California without regard to Conflict of Law principles.

In any dispute or disagreement concerning the meaning, effect, or interpretation of this Agreement or 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 equally share the mediation cost. The parties agree to cooperate fully with the mediator in good faith to reach a mutually satisfactory dispute resolution. Unless mutually agreed, the mediation location will be in Alameda, California. 

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 Alameda, California.

Refusal or Discontinuation of Service

We reserve the right to refuse, restrict or terminate service to any client. 

Disclaimer of Warranty 

We will perform our work per reasonable 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, 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 A PARTICULAR PURPOSE. THE PRECEDING DOES NOT AFFECT ANY WARRANTIES WHICH CAN NOT 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 PRECEDING DOES NOT AFFECT ANY LIABILITY WHICH CAN NOT 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 NUMBER 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 aspect 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 Agreement and understanding of the parties concerning the transactions contemplated hereby and supersedes any prior agreements and understandings relating to the subject matter. 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 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 actively negotiated this Agreement’s terms, participated in its drafting, and been represented by legal counsel. Therefore, this Agreement shall not be deemed 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.

Agreement

• You have read, understood, and agreed to the terms and conditions of the Projects & Website Builds legalese