THIS MASTER SERVICESAGREEMENT (“Agreement”) is entered into by and between Elevatio n Group, LLC (the “Company”) and the Client named in the related Proposal, Statement of Work and/or Order Form, which is incorporated herein by reference and made a part hereof (the “Order”). The Order shall include any subsequent Change Ordersrequested by Clientand shall apply to all Services ordered by Client.
PLEASE READ THIS AGREEMENT CAREFULLY.
BY CLICKING “I ACCEPT” OR OTHERWISE ACCESSING OR USING THE SERVICES DEFINED HEREIN, YOU ARE CREATING A CONTRACT BETWEEN THE COMPANY AND CLIENT, CONSISTING OF (i) THE ORDER, (ii) THE APPLICABLE DESCRIPTION OF THE SERVICES SET FORTH IN THE ORDER, AND (iii) THIS AGREEMENT, AND AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY’S USAGE POLICIES. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
WHEREAS, the Company is engaged in the business of the design and implementation of Internet web sites, search engine optimization, search engine marketing, maintenance and website hosting; and
WHEREAS, Client desires to engagethe Companyto provide to the Client the services as set forth in one or more Orders (the “Services”).
NOW THEREFORE, the Company and Client agree as follows:
1. Term and Termination.
A. Term of Agreement. This Agreement shall be effective as of the date Client accepts and electronically signs this Agreement and shall remain in force until the subscription period and/or all Services have been completed by the Companyas set forth in the applicable Order.
B. Term of Subscriptions. Subscriptions to the Services commence on the Start Dateand continue for the Subscription Term specified in the applicable Order. Unless otherwise set forth in an Order, subscriptions shall automatically renew for additional periods of one year for the fees set forth in the applicable Order unless either party give the other party notice of non-renewal at least 30 days prior to the then current Subscription Term. For the purposes hereof, (i) the term “Start Date” means the date on which the Companyshall make the Services available to Client as set forth in the applicable Order; and (ii) the term “Subscription Term” means the subscription period set for in the applicable Order.
C. Termination. This Agreement may be terminated (i) upon the written consent of both the Client and the Company; (ii) immediately by either party upon written notice of termination to the otherif a party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of written notice of such breach; (iii) immediately by the Company if Client fails to pay any fees hereunder on the due date; (iv) by the Company upon fifteen (15) days’prior written notice to Client for convenience or if Client fails to cooperate with the Company or hinders the Company’s ability to perform the Services hereunder.
D. Effect of Termination. Upon termination of this Agreement,Client agrees to pay the Company for all Services performed up to the date of termination, together with any cancellation fees as set forth in Section 3(c) hereof.
2.The Company and Client’s Responsibilities.
A. Scope of Work. The Companyagrees to perform the Services as set forth in the Order.
B. Change Orders. Should Client request the Company to perform services or tasks that are not provided within the terms of this Agreementor the Order, the Company will immediately notify the Client and the Company will issue a change order setting for the requested work (“Change Order”). Change Orders may be subject to additional fees. In such a case, the Company will provide Client with a written time and cost estimate for the additional work for their review. The Company will not perform any additional work not covered by the terms of this Agreement or the Change Order without receiving writing approval to proceed.Change Orders shall become effective only when accepted and electronically executed by the Client and the Company. The Company agrees to notify Client promptly of any factor, occurrence, or event coming to its attention that may affect the Company’s ability to meet the requirements of this Agreement, or that is likely to occasion any material delay in the Services set forth in the Change Order. In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.
C. Client’s Responsibilities. Client agrees to perform all tasks assigned to Client as set forth in the Order, this Agreement or any Change Order, and to provide all assistance and cooperation to the Company in order to complete the Services. The Company shall not be deemed in breach of this Agreement, or a Change Orderin the event Client’s failure to meet its responsibilities and time schedules is caused by Client’s failure to meet (or delay in) its responsibilities and time schedules set forth in the Order, this Agreement or a Change Order. In order to complete Client’s project in a timely fashion or to provide ongoing Services as set forth in the Order, the Company has allocated personnel to perform work at scheduled times in accordance with a project timelineor requirements as set forth in the Order. In the event Client fails to deliver content, information, images, directional notes, approvals or other required information to the Company by the dates specified in the Order, all subsequent deadline and project milestones will be postponed accordingly. In the event Client fails to deliver content, information, images, directional notes, approvals or other required information to the Company by more than five (5) business days after the dates specified in the project timeline set forth in the Order, subsequent deadlines may be postponed for lengthier durations due to the Company work personnel reallocation and rescheduling. In the event Client fails to deliver content, information, images, directional notes, approvals for more than two (2) months after dates specified in the project timeline, final payment will be due, billed by the hour (not by the project), for all work completed to date and the applicable Services will be put on hold.Client shall be responsible for making, at its own expense, any changes or additions to Client’s current systems, software, and hardware that may be required to support the completion of the Services. Unless otherwise contracted with the Company or reflected in a Change Order, Client shall be responsible for initially populating and then maintaining any databases on its Web Site as well as providing all content for the Web Site. With the execution of a Change Order specifically asking the Company to assesses the Client’s systems, software and hardware from time to time, the Company may agree to perform this function at normal Company rates.To the extent the Services include the development of a web site by the Company for Client, until Client has approved the final web site, none of the web pages for Client’s website will be accessible to end users. Upon approval of the final web site by Client, the web site will become accessible to end users, and such approval shall be deemed a representation by Client that the web site content, layout, look, and feel is accurate. Any request for changes after approval will be at the Company’s normal hourly rates.
D. Client Representative. Client will provide one (1) representative from the Client side who will communicate with the Company to streamline the process and prevent miscommunication. In the event that the Client changes their designated representative, the Company must be notified in writing of the change, and all prior approvals up to the representative change shall remain valid. Subsequent edits and changes to previously approved work are out of scope, and will be subject to a Change Order and billed at the Company’s standard hourly rate of $150 per hour.
E. Client Communication and Project Management. In order to avoid miscommunication, Client will provide all edits, approvals and requests to the Company in writing, via email, before implementation. If Client wishes to review edits via phone after they are emailed, a time will be confirmed in advance. In the event Client communication with the Company is trending towards exceeding the allocated management time, the Company shall notify Client in advance and bill such additional time at the standard hourly rate of $150 per hour. Additionally, the Company will provide Client with updates via email and phone as work progresses at regularly scheduled times. The personnel assigned to perform the Services shall be determined solely by the Company and the Companymay use subcontractors or consultants to perform the Services.
F. Client Materials and Content Indemnification. Client shall retain ownership of all content and materials provided to the Company. Client takes full responsibility for any content (including, without limitation, any graphics, audio, copy text, video, images, and trademarks) provided to the Company to be used in this project. Client represents and warrants that it has full rights to use all content and materials provided to the Company (“Client Content”).Client covenants and agrees that the Client Content shall not include any names of, or any medical or health-related information related to, any patient of the Client; provided, however, that Client may post testimonials with the patient’s express consent. Client shall defend, indemnify and hold harmless the Company and its officers, directors, employees and agents, from and against any and all losses, costs, claims, suits, obligations, demands, damages, liabilities, expenses (including all reasonable attorneys’ and paralegals’ fees on account thereof)relating to, resulting from, or in connection with any claims related to the Client Content, Client’s and its users’ use of Client Content or Client work product, Client’s modification to the Company’s content or Client work product, or any data or information supplied by Client to the Company in connection with the Client work product, including, without limitation, any claim for breach of warranty, libel, slander, invasion of privacy, false advertising, claims of copyright infringement, patent infringement, trademark infringement or dilution, misappropriation of trade secrets, loss of data and information, defamation, harassment, or fraud, injuries, including death to persons or damage to property, theft and emotional distress.
G.Hosting Services. In the event that Client chooses a subscription that includes hosting services, Client acknowledges and agrees to the following: (i) that all hosting services are provided to Client by WP Engine, Inc. (“WP Engine”), which is a third party service provider of the Company, (ii) Client agrees to be bound by all of the terms and conditions set forth in WP Engines’:
-Terms of Service:https://wpengine.com/legal/terms-of-service/,
-Service Level Agreement: https://wpengine.com/legal/sla/; and
-Acceptable Use Policy:https://wpengine.com/legal/aup/,
which are incorporated into this Agreement by reference; and (iii) that all issues, complaints, concerns, etc. of Client associated with the hosting services, including, limitation any outages or downtime, shall be directed solely to WP Engine and not the Company. Client may contact WP Engine as follows: https://wpengine.com/contact/.
H.HIPAA Disclaimer. Client understands, acknowledges and agrees that (i) the Company is not HIPAA compliant, (ii) Client is solely responsible for any and all applicable compliance with federal and/or state laws governing the privacy and security of personal data, including, without limitation, any past, present or future physical or mental health information of any individual or other sensitive data (“Health Information”), (iii) the Services are not be appropriate for the storage of, or control of access to, any Health Information, and (iv) the Company does not control or monitor the information or data Client stores on, or transmit through, the Services or its website. The Company specifically disclaims any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Clients requiring secure storage of Health Information, including “protected health information” as defined under HIPAA, are expressly prohibited from using the Services or its website for such purposes. Storing and permitting access to any Health Information, including any “protected health information,” as defined under HIPAA, is a material violation of this Agreement, and grounds for immediate termination by the Company. Client acknowledges and agrees that (i) the Company does not sign “Business Associate Agreements,” and (ii) the Company is not a Business Associate or subcontractor or agent of Client pursuant to or in accordance with HIPAA.
I. Third Party Policies and Actions. Client understands, acknowledges and agrees that (i) the Company has no control over the policies and actions of any third party, including, without limitation, search engines and directories, and (ii) the Company shall not be responsible for such third party’s policies or actions in any manner whatsoever regardless of whether or not the Company has recommended such third party’s products or services. Client further understands and agrees that it is not required to utilize the products or services of any Company recommended third party and the decision to use such party rests solely with Client.
3. Fees; Payment Terms; Taxes.
A. Fees. Client will pay the Company for the Services according to the terms set forth in the Order.Unless otherwise required by the Order, all fees must be received by the Client prior to the commencement of the Services. Client will be responsible to pay the expenses of any resources they request the Company to purchase, such as stock photos, videos, audio flies, third party licenses or other media assets. Client may choose to purchase these items directly and provide them to the Company for use on their project. Client will reimburse the Company for any additional expenses including travel, copying, duplicating, shipping, and postage. All expenses over $250.00 will be approved by Client prior to purchase.
B. Invoices; Past Due Account. Invoices are due upon receipt, unless otherwise stated. Accounts thirty (30) days past due are subject to a 1.5% finance charge accrued per month on the outstanding balance. Client agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees, court costs and other expenses of collection resulting from any default by Client in any of the terms hereof.
C. NO REFUNDS; CANCELLATION FEES. CLIENT FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY CLIENT, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. CLIENT AGREES TO PAY UPON CANCELLATION OR TERMINATION OF THIS AGREEMENT OR ANY ORDER, THE AMOUNT OF ANY CANCELLATION FEES OR OTHER AMOUNTS DUE TO THE COMPANY AS PROVIDED IN THE ORDER. THE COMPANY IS HEREBY AUTHORIZED TO CHARGE CLIENT’S CREDIT CARD OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CLIENT TO THE COMPANY.
D. Taxes. Unless otherwise stated in the Order, the Company’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on the Company’s net income or property. If the Company has the legal obligation to pay or collect Taxes for which Client is responsible under this Section, the appropriate amount shall be invoiced to and paid by Client, unless Client provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Ownership of Intellectual Property.
A. Client Intellectual Property. All work performed by the Company for the Client will become the property of the Client upon full payment of all amounts due and owing; provided, however, the Company may retain ownership of certain source code, in which case the Client is granted a non-revocable, non-exclusive, worldwide, royalty free license to use such source code owned by the Company. Additionally, the Client’s work may contain software and other property licensed by third parties, in such event the terms of such third party license shall control. Client shall be responsible for researching, obtaining, and filing all trademark, copyright, patent, or other intellectual property protections for the Client content, its look and feel, any logos, any “tag lines,” or any other materials or documentation designed or developed by the Company for Client. Client agrees that the Company may display Client work product and Client’s name and logo in the Company’s portfolio, client list and marketing materials.
B. Company Intellectual Property. The Company is the owner, licensee or sublicense of various pre-existing development tools, routines, subroutines and/or other programs, data, and materials that the Company may use or implement in the development of the Services (“Background Technology”). The Company retains all right, title and interest in and to the Background Technology, and hereby grants Client a non-exclusive license to use the Background Technology only to the extent necessary to complete the Services. Client is not authorized to sell or license any Background Technology or rights thereto to any other person or firm.
5. Confidential Information.
A. Client Information. All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by the Company and will not be disclosed or used by the Company except to the extent that such disclosure or use is reasonably necessary to the performance of the Services.
B. Company Information. All information relating to the Company that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Client and will not be disclosed or used by Client except to the extent that such disclosure or use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement.
C. Survival. These obligations of confidentiality will survive the termination of this Agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
6. Warranty and Disclaimer.The Company warrants that the Services will be provided in a workmanlike manner, and in conformity with generally prevailing industry standards. The Company guarantees thatthe source code, if any, provided as part of the Serviceswill be free of bugs and errors due to workmanshipfor a period of thirty (30) days. This guarantee will be waived if the Client requests FTP (source code of the site) access to the site server. FTP access will not be granted to the Client until full payment for the balance of the Agreement and all Orders is received. The 30 day warranty period is valid only for projects which are hosted and uploaded to the live servers by the Company. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET THE CLIENT’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES IS WITH CLIENT. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, THE COMPANY PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED BY THE COMPANY, AND (B) THE COMPANY 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, ANY ORDER OR ANY CHANGE ORDER. THE COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY WEBSITES, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
7. Limitation of Liability.The liability of the Company for any reason and for any cause of action whatsoever in connection with this Agreement, any Order, any Change Orders, with respect to the Services, or any action taken by or behalf of any third party, regardless of the form of action, whether in contract or in tort, including negligence, shall be limited to the amount of money received by the Company from Client pursuant to this Agreement during the term during which such any potential damages or liability arose.The Company shall not be liable to Client or any third party under this Agreement or in connection with the use of or performance of the Services for (i) any losses or damages to Client or any third party as a result of Malicious Code introduced by Client or any third party at any time, (ii) any loss of Client or third-party data or information, or (iii) any lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including negligence, regardless of whether the Company has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. For the purposes hereof, “Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or destructive code, files, scripts, agents or programs.
8. Relation of Parties.The performance by the Company of its duties and obligations under this Agreement will be that of an independent contractor, and nothing herein will create or imply an agency relationship between the Company and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
9. Assignment.Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
10. Mediation; Dispute Resolution; Governing Law; Jurisdiction; Waiver of Jury Trial.If any dispute or claim shall arise out of this Agreement and the dispute is not settled by the parties within a fifteen (15) day period, the parties agree to mediation with a mutually agreed upon mediator. If the parties are not able to agree on a mediator, each will appoint a mediator. These two mediators will choose a third mediator to execute the mediation. The parties shall equally divide the costs of the mediation regardless of the result of the mediation. In the event that the matter is not resolved at mediation, the parties agree that this Agreement shall be governed by the laws of the State of Florida, without giving effect to the conflict of laws and rules thereto, and venue shall lie in Miami-Dade or Broward County, Florida 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 either party. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER.
11. Severability. If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
12. Force Majeure.Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control,including,without limitation, acts of God, acts of government, flood,fire, earthquakes, tornadoes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems, Malicious Code, denial of service attacks, and inability to obtain energy; provided, however, that the delayed party will resume performance as soon as reasonably practicable.
13. No Waiver.The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
14.Entire Agreement.This Agreement together with the Order, any attachments referred to herein and in the Order, and the Change Orders, if any, constitute the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations, warranties or covenants not specifically stated herein and that, except as otherwise specifically set forth in this Agreement, the Order, or any Change Order, the Company is not making any representations, warranties or covenants with respect to the Services.
15.Read and Understood; Electronic Signature. By selecting the “I Accept” button, or otherwise accessing or using the Services defined herein, Client acknowledges and agrees that it (i) has read and understood this Agreement, (ii) it has read and understood the Terms of Service, Service Level Agreement and Acceptable Use Policy of WP Engine (“WP Engine Terms and Conditions”), (iii) is signing this Agreement electronically, (iiiiv) agrees that its electronic signature is the legal equivalent of its manual signature on this Agreement, all Orders and all Change Orders, if any, and (ivv) consents to be legally bound by the terms and conditions of this Agreement, all Orders and all Change Orders, if any. , and the WP Engine Terms and Conditions.