Terms Of Service

Website Maintenance Agreement Terms of Service

This Website Maintenance Agreement (“Agreement”) is hereby entered into between you, your employees and agents (collectively “Client or Customer”) and High Desert Digital LLC (“HDD, Us” or “We”) and covers the purchase of all Website Maintenance Services (hereinafter collectively referred to as “Maintenance Services and/or Care Plans”) ordered by Client.

You hereby represent that:

(1) You have read, understood, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time at our websites.
(2) You are 18 years of age to form a binding contract with HDD.
(3) You have the authority to enter into the Agreement personally and, if applicable, on behalf of any company, organization, or other legal entity you have named as the user during the HDD account registration process and to bind that company, organization, or entity to the Agreement

Except as otherwise provided herein, IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE WEBSITE, THE SERVICES, OR THE PLUGINS.

Term and Termination

This Agreement shall be effective when the Client subscribes to and pays for Maintenance Services. This Agreement may be terminated by either party upon 30 days written notice to the other, by breach of any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice.

The agreement may be terminated by HDD:

Immediately if Customer fails to pay any fees hereunder; or if Customer fails to cooperate with HDD in, or hinders our ability, to perform the Maintenance Services/Client Care Plan hereunder.

Registration Data and Privacy

To access some of the services on this site, you will be required to provide us with an “Admin” account and password that can be obtained by completing our online registration form, which requests certain information and data (“Registration Data”), and maintaining and updating your Registration Data as required. By registering, you agree that all information provided in the
Registration Data is true and accurate, that you have the authority to provide such data, and that you will maintain and update this information as required in order to keep it secure, current, complete, and accurate.

You also grant us the right to disclose to third parties certain Registration Data about you. The information we obtain through your use of this site, including your Registration Data, is subject to our Privacy Policy, which is specifically incorporated by reference into these Terms of Use.

Maintenance Services

HDD agrees to provide the Client with Maintenance Services as described in this Agreement.

Maintenance Services – Depending Upon The Plan Chosen By the Client – include:

Regular updates to Client’s WordPress core, including WordPress plugins, and themes.
Installation and maintenance of WordPress security plugin (if Client site does not have such) to help prevent attacks and to scan website for malicious code.
Offsite Cloud backups of the website(s) on a daily, weekly, or monthly basis, depending on Maintenance Package purchased.
Recovery of website database and files from backups, as needed.
Uptime monitoring (if included in package purchased).
Regular security scans (if included in package purchased).
Removal of malware, spam and malicious code if found.*

Removal of malware, spam, and malicious code that is already existing on a website when a Client signs up for a Maintenance Plan
will be charged an additional fee. Please contact us for an estimate for this service.

Please note:
Our system is capable of identifying and removing most Malware. It is important to understand that, although our partnership community actively researches and reports thousands of vulnerabilities found in WordPress plugins, and that corresponding measures are taken to automatically update our removal capabilities, we can not guarantee that our automated system can resolve all infections.

Should such a circumstance arise, we have the team, and you have the option of hiring us, to perform the following for an
additional charge of $120.0 per hour. Billed in 30 minute increments.

We will:
Clean the infection by:
Our Security Analysts will investigate how the attackers gained entry and apply any necessary fixes.
Remove any malicious code and malware links in your posts, pages, comments and source code.
Provide an in-depth report of the infection removal and investigation.
Work with multiple search engines, anti-malware, and anti-spam blacklists like Google and Symantec to remove your site.

Regular weekly or monthly reporting (frequency and type of reports. i.e, White Label, depends on Maintenance Package).

If after updates to WordPress core, WordPress plugins or WordPress themes are performed it is determined that one or more of the updates cause problems for the overall functioning of the website, then the site will be ‘rolled back’ to the state before the updates were performed using the latest website backup if necessary or rolling back the offending plugin. HDD will then contact the client to discuss options as to how best to remedy the issue.

Updates to text, images, and other minor changes to Client’s website pages are available, depending on Maintenance Package purchased. The amount of time dedicated to these tasks each month will be determined by the Maintenance Package purchased by Client at the time of signup.

For any website support requests, above and beyond what is outlined in the Care Plan purchased, Client agrees to pay the standard hourly rate for support services provided by HDD based on the hourly rate of $120.00 per hour. Billed in 30-minute increments.

Malware, Spam, or Malicious Code

Removal of malware, spam, and malicious code that is already existing on a website when a Client signs up for a Maintenance plan will be charged an additional rate. Please contact us for an estimate for this service.

Fees; Limitations on Refunds and Cancellation Fees

The client agrees to pay HDD any and all fee(s) as billed in accordance with this Agreement. The fee(s) must be received prior to the start of any Maintenance Services. THE Client FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY Client, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE Client FURTHER AGREES TO PAY UPON CANCELLATION ANY OTHER AMOUNTS DUE TO HDD FOR WORK PROVIDED AT CLIENT’S REQUEST ABOVE AND BEYOND THE MONTHLY ALLOTTED TIME OF MONTHLY AGREEMENT. HDD IS HEREBY AUTHORIZED TO CHARGE THE CLIENT’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY THE CLIENT TO HDD.

Client Responsibilities
For the purposes of providing these services, Client agrees:

To properly convey to HDD the information that needs to be changed or added.
To answer any questions from HDD, in regards to task work on the website, promptly.
To provide HDD with access to its website for creating new pages, and making changes for the purpose of providing Maintenance
Services.

To provide HDD access their web hosting account, providing active user name / password combinations for access to the server via FTP, assuring that ‘write permissions are in place on hosting provider.

All monthly updates are scheduled at our convenience and in accordance with our schedule. We have a process and a workflow that we use to maintain all of our clients’ websites in a fair and orderly fashion. The only exception is in the case of Client’s website being totally offline or down for some reason, in which case their issue would be considered an ‘emergency’ and would take priority.

The client understands that if they provide HDD with a maintenance task and the task has been completed, then they wish to make changes to the task, any additional time to make these changes will based on the hourly rate of $120.00 per hour. Billed in 30 minute increments.

The maintenance Agreement does not include training on how to use your website, WordPress, or email.
The maintenance Agreement does not include training on search engine optimization (SEO) or other online digital marketing.
All communications will be done during regular business hours, which are Monday through Friday from 8:00 AM to 5:00 PM (MST).
HDD has no control over your hosting company in regards to server downtime, incompatibilities with software, PHP compatibility issues, etc.

HDD is not responsible for Client’s email issues or troubleshooting problems on their own computer.

HDD is not responsible for changes made to Client’s web site(s) by other parties, including the Client themselves.

During the duration of this contract, the Client agrees that HDD will be the sole provider of maintenance services for the website, and no other party will have access to or rights to update themes, plugins,etc. without first notifying HDD.

If a party, including the Client, other than HDD makes changes to the website, any errors that are created that must be repaired by HDD, will be charged for at the hourly rate specified above.

HDD is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.

HDD will not repair Client’s website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services. Malware removal and/or cleanup of currently hacked websites will be quoted after a website audit.

Recovery or repair of the Client’s website is not guaranteed.
Availability of backups is not guaranteed.

Additional Services – Additional services not listed herein will be provided for a fee of $120.00 per hour. HDD is not responsible for search engine optimization (SEO), developing new content, or writing new copy for Client. The client will be charged an additional fee for writing content, based on the hourly rate of $120.00 per hour. Clients who need SEO work done must sign up for one of our SEO Packages.

Indemnification – Client shall indemnify and hold harmless HDD (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by HDD as a result of any claim, judgment or adjudication against HDD related to or arising from (a) any photographs, illustrations,
graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Client to HDD (the “Client Content”), or (b) a claim that HDD’ use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, HDD must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defense and all related negotiations.

Disclaimer of All Other Warranties – HDD DOES NOT WARRANT THAT THE MAINTENANCE SERVICES WILL MEET THE Client’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH Client. EXCEPT AS OTHERWISE SPECIFIED IN
THIS AGREEMENT, HDD PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND
ENFORCEABILITY OF ANY REMAINING PROVISIONS.

Limited Liability – IN NO EVENT SHALL HDD BE LIABLE TO Client FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY,
CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THERE SHALL BE NO REFUNDS. HDD MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.

Client Representations – The client makes the following representations and warranties for the benefit of HDD:

Client represents to HDD and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to HDD are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend HDD and its subcontractors from any claim or suit arising from the use of such elements furnished by Client. Client guarantees to HDD and unconditionally guarantees that Client’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
Client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to HDD for inclusion on the website above are owned by Client, or that Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend HDD and its subcontractors from any liability or suit arising from the use of such elements.

From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce.
Client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend HDD and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of Internet electronic commerce.

Confidentiality – The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by
any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information
for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, HDD and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3)
years from the effective date.

Force Majeure – Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.

Relationship of Parties – HDD, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership.
Client does not undertake by this Agreement, or otherwise, to perform any obligation of HDD, whether by regulation or contract. In no way is HDD to be construed as the agent or to be acting as the agent of Client in any respect, any other provisions of this Agreement notwithstanding.

Notice and Payment – Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party, mailed by certified, registered or Express mail, return receipt requested or by Federal Express. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.

Jurisdiction/Disputes – This Agreement shall be governed in accordance with the laws of the State of New Mexico. All disputes under this Agreement shall be resolved by litigation in the courts of the State of New Mexico including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.

Agreement Binding on Successors – The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.

Assignability – Client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of HDD. HDD reserves the right to assign subcontractors as needed to this project to ensure on-time completion.

Waiver – No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.

Severability – If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.

No Inference Against Author – No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.

Disputes – Client and HDD agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Santa Fe County, New Mexico and in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years of experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of New Mexico sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of New Mexico or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.

Read and Understood – By purchasing a Maintenance Package, Client acknowledges that they have read and understand this Agreement and agree to be bound by its terms and conditions.