The provision of products and/or services by eWebResults Marketing Agency (EWR or Seller) is governed by the Master Services and Product Agreement.
“Seller” is eWebResults Marketing Agency
“EWR” is eWebResults Marketing Agency
“Client” is client of eWebResults Marketing Agency
“Agreement” is the Master Service and Product Agreement
“MSA” is the Master Service and Product Agreement
“SOW” is Statement of Work
“SLA” is Service Level Agreement
“SEO” is Search Engine Optimization
“BBB” is Better Business Bureau
Important information about these Terms and Conditions
These Terms and Conditions constitute a binding contract between Customer and Seller and are referred to herein as either “Terms and Conditions” or “this Agreement”. The Client has accepted these terms and conditions by making a purchase from or placing an order with the Seller or otherwise requesting products (the “Products”) or engaging Seller to perform or procure any Services (as this and all capitalized terms are terms are defined herein). These Terms and Conditions are subject to change without prior notice.
This Agreement services as the most up to date Master Service Agreement. Additional or different terms and conditions contained in any such previous purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of those terms and conditions or any purchase order or invoice or any document in the electronic or written form that is signed and delivered by each of the parties for the performance of Services other than Third Party Services (each, a “Statement of Work”). This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understanding, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
Scope. From time to time, the Client may request that XXX provide, and XXX may agree to provide, certain professional services described in one or more Statements of Work (each, a “Statement of Work” or “SOW”) or SLA’s, which when executed by the parties hereto, will be attached hereto and incorporated herein. To the extent that the terms of any SOW conflict with the terms of this Agreement, the terms of the SOW or SLA shall control, but solely with respect to the services described in such SOW.
In consideration of the mutual covenants, promises, and agreements contained herein, the parties do hereby agree as follows:
- SCOPE OF SERVICES.
Services. EWR will provide a variety of website design and development, website maintenance, corporate brand strategy, Search Engine Optimization (SEO), Video & Photography as well as digital marketing consulting services (“Services”) to the Client, as described and authorized from time to time by Service Agreements executed by the Parties (a “Service Agreement”). Each Service Agreement shall identify the nature, scope and location of the Services to be performed and the agreed upon price for the Services. The terms of this MSA shall control the terms of any and all Service Agreement between the Parties unless such Service Agreement specifically identifies this MSA by name and indicates an unequivocal intent by the Parties to modify the terms of this MSA. For the avoidance of doubt, if any document(s) (including any attached pre-printed terms and conditions) provided by EWR conflict with any provision(s) of this MSA, the provision(s) of this MSA shall take precedence and govern, and any such document(s) shall be of no effect whatsoever. The Client shall not be obligated to request and EWR shall not be required to perform any services under this MSA unless the Parties have executed a Service Agreement.
EWR represents and warrants that EWR has the experience and ability, and will perform the Services in a professional and timely manner. If EWR anticipates that it will be unable to meet a certain timeline contained in a Service Agreement, EWR will provide prompt notice to the Client of the nature of such delay and provide a revised timeline for the delayed deliverable.
EWR is a small business, and it is imperative that its clients timely pay for all services EWR provides to its clients. The Client shall pay EWR in accordance with each Service Agreement. Unless an Service Agreement states otherwise, (i) All payments made by the Client shall be made by check payable to “eWebResults Marketing Agency”; and (ii) failure by the Client to make payments to EWR within Thirty (30) days of the due date of a payment will constitute a material breach of this MSA and each Service Agreement by the Client, and EWR will not be obligated to continue providing Services under any Service Agreement until any such past due payments are made. The Client shall be subject to paying a late fee of two percent (2%) per month. The Client agrees to and shall reimburse EWR for costs and expenses (including attorneys’ fees) incurred in collection under this MSA or any Service Agreement. Client shall have no right to offset (or to withhold any monies owed) for any claims and shall fully and timely pay all invoices. Any dispute that the Client has with any invoice shall be made within thirty (30) days of the Client’s receipt of such disputed invoice.
Note: a 3% surcharge will be applied to all credit card payments*
The Client will provide a complete thirty (30) days’ notice prior to ending services.
eWebResults Marketing Agency
Attn: Nancy Annor
13105 Northwest Fwy #515
Houston, TX 77040
- INDEPENDENT CONTRACTOR/CONSULTANT RELATIONSHIP.
This MSA and any Service Agreement evidencing an agreement by the Parties shall establish a contract between independently contracting parties and shall not be construed to create any relationship other than that of an independent contractor relationship between EWR and the Client. Each Party will act and perform independently with respect to the other Party.
- CONFIDENTIALITY; OWNERSHIP OF INTELLECTUAL PROPERTY.
Confidentiality. EWR agrees to only utilize Client confidential information in order to perform the Services, and shall not disclose Client confidential information to any third party not directly related to providing the Services to the Client.
Any EWR intellectual property that EWR allows the Client to use is strictly pursuant to a limited license for the Client to use such intellectual property only during the term of any applicable Service Agreement, and does not provide the Client any ownership of EWR’s intellectual property, nor right of the Client to use after the termination of the applicable Service Agreement.
EWR is proud of the services it provides its clients, and regularly utilizes examples of its clients’ projects in EWR’s marketing and business development efforts. The Client hereby provides EWR with the right to publicize and publicly display Client websites and projects, and/or provide links to Client websites or projects on EWR’s website, social media, or other marketing and business development efforts.
Any notice or other communication required or permitted to be given under this MSA or a Service Agreement by a Party to the other Party shall be considered to be given through electronic communication or properly updated in the MSA agreement on EWR’s Website.
- TERM; TERMINATION; AND SURVIVAL OF OBLIGATIONS.
This MSA shall commence on the date hereof and continue until either Party terminates this MSA by providing written notice of termination; provided, however, notwithstanding such termination, the provisions of this MSA shall continue to apply to all Service Agreements in effect until the earlier of the (i) completion of all Services under each Service Agreement, or (ii) termination of each applicable Service Agreement.
EWR shall have the right to immediately terminate this MSA and any Service Agreements by written notice to the Client if the Client shall fail to: (i) Make a payment owed to EWR within thirty (30) days of the due date of a payment; or (ii) Communicate or cooperate with EWR for 10 consecutive business days upon EWR’s request. Upon such notice of termination, all remaining responsibilities of EWR under each Service Agreement shall terminate; The Client will still be responsible for monies owed under each Service Agreement; and the Client will not be entitled to a refund of any monies paid.
Non-Solicitation of Employees. “Client” understands and acknowledges that EWR has expended and continues to expend significant time and expense in recruiting and training its employees and contractors and the the loss of employees or contractors would cause significant and irreparable hard to EWR. During the term of this Agreement and for a period of one (1) year following completion of any work hereunder the “Client”, either directly or indirectly (i) solicit for employment by any individual, corporation, firm, or other business, any employees, consultants, independent contractors, or other service providers of the Company or any of its affiliates, or (ii) solicit any employee or consultant of the Company or any of its affiliates to leave the employment or consulting of or cease providing services to the Company or any of its affiliates; provided, however, that the foregoing clauses (i) and (ii) shall not apply to a general advertisement or solicitation (or any hiring pursuant to such advertisement or solicitation) that is not specifically targeted to such employees or consultants.
(iii) Directly or indirectly induce or solicit any employee or independent contractor of the Company or any subsidiary thereof to terminate his or her employment with the Company for the purpose of joining another company in which the Executive has an interest (whether as an employee, officer, director, agent, security holder, creditor, consultant, or otherwise)
- SUCCESSORS AND ASSIGNS.
The Client fully understands that EWR may utilize non-employee contractors to assist EWR with providing the Services. Neither Party shall assign or transfer this MSA or any Service Agreement, in whole or in part, without the prior written consent of the other Party, except pursuit to a change of control of a Party. Any purported assignment in violation of the foregoing shall be null and void.
- GOVERNING LAW; ARBITRATION.
Governing Law; Venue. This MSA and any Service Agreements shall be governed and construed in accordance with the laws of the State of Texas without regard to its conflict of law provisions. The Parties hereto consent to the jurisdiction and venue of the state and federal courts of Harris County, Texas with respect to all subject matters covered by this MSA, PROVIDED HOWEVER, that the Parties shall first be governed by the binding arbitration provisions as specified below:
Binding Arbitration . Any controversy or claim of every kind arising out of or relating to this MSA or any Service Agreement shall be settled by arbitration administered by the American Arbitration Association pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as modified by any other instructions that the parties may agree upon at the time, except that each Party shall have the right to conduct discovery in any manner and to the extent authorized by the Federal Rules of Civil Procedure as interpreted by the federal courts. If there is any conflict between those Rules and the provisions of this Section, the provisions of this Section 9 shall prevail. The forum for the arbitration shall be Harris County, Texas. There shall be one arbitrator (unless the Parties are able to agree on the necessity of having three (3) arbitrators) selected from a list of possible arbitrators provided by the AAA. If the Parties are unable to agree on such arbitrator within ten (10) days after the initiation of an arbitration proceeding, the arbitrator shall be appointed by the commercial panel of the American Arbitration Association. The arbitrators shall have power and authority to award any remedy or judgment that could be awarded by a court of law in Texas. The award rendered by arbitration shall be final and binding upon the Parties, and judgment upon the award may be entered in any court of competent jurisdiction in the United States. Each Party shall bear its own fees and expenses with respect to the arbitration and any proceeding related thereto and the Parties shall share equally the fees and expenses of the American Arbitration Association and the arbitrators or the BBB.
Exceptions to Arbitration. Notwithstanding anything to the contrary, the Parties may seek injunctive or equitable relief from a court of competent jurisdiction in any state or federal court in Houston, Harris County, Texas without first participating in arbitration through American Arbitration Association or BBB.
If any provision of this MSA or Service Agreement should be held invalid or unenforceable in a court of law in any jurisdiction, such invalidity or unenforceability shall not affect the enforceability of this MSA, a Service Agreement, or any other provision thereof. In addition, the Parties agree that it is their intention that such provision shall be construed in a manner designed to effectuate the purposes of this MSA and any Service Agreement to the fullest extent enforceable under applicable law. The Parties further agree that such ruling shall not affect the construction of that provision or any other of the provisions in any other jurisdiction
- DISCLAIMER OF PARTNERSHIP/AGENCY; NO THIRD PARTY BENEFICIARIES.
Each Party agrees that it is not an agent, joint venture or partner of the other Party. Neither this MSA nor any Service Agreement shall be construed to constitute or to create a partnership or a joint venture or any other form of legal association that would impose liability upon a Party for the act or failure to act of the other Party or as providing any Party with the right, power or authority (express or implied) to create any duty or obligation on behalf of the other Party. Except as expressly provided to the contrary in this MSA or a Service Agreement, no third party is intended to be, and no third party shall be deemed to be, a beneficiary of any provision of this MSA or a Service Agreement.
- LIMITATION OF LIABILITY.
EWR CANNOT AND DOES NOT GUARANTEE THAT THE FUNCTIONS CONTAINED IN ANY CLIENT WEBSITE, WEB PAGE, TEMPLATE, OR OTHER CLIENT PROJECT WILL ALWAYS BE ERROR-FREE. IN NO EVENT SHALL EWR BE LIABLE TO THE CLIENT IN CONNECTION WITH THIS MSA OR ANY SERVICE AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, FOR ANY: (I) INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, LIQUIDATED, INCIDENTAL OR PUNITIVE DAMAGES; AND/OR (II) LOST PROFITS, LOST REVENUES, LOST BUSINESS EXPECTANCY, BUSINESS INTERRUPTION LOSSES AND/OR BENEFIT OF THE BARGAIN DAMAGES. THIS LIMITATION OF LIABILITY FROM CLIENT TO EWR INCLUDES BUT IS NOT LIMITED TO ALL SUCH DAMAGES ARISING OUT OF THE OPERATION OF OR INABILITY TO OPERATE ANY CLIENT WEBSITE, WEB PAGE, TEMPLATE, OR PROJECT EVEN IF CLIENT ADVISES EWR OF THE POSSIBILITIES OF SUCH DAMAGES. THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
EWR Indemnity. In performing the Services, EWR agrees not to design, develop, or provide to the Client any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), privacy, or other rights of any person or entity. If EWR becomes aware of any such possible infringement in the course of performing any Services, EWR shall immediately so notify the Client in writing. EWR agrees to indemnify, defend, and hold the Client, its officers, directors, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement other than Client’s responsibilities and Client’s Content. This indemnification shall include attorney’s fees and expenses, unless EWR defends against the allegations using counsel reasonably acceptable to the Client. EWR’s total liability under this Agreement shall not exceed the total amount paid to EWR by Client for Services performed under the applicable Service Agreement that the alleged or actual infringement occurred under.
Client Representation and Indemnity. The Client represents that photographs, illustrations, graphics, audio clips, video clips, designs, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by the Client to EWR for inclusion in a Client website or other project (“Client’s Content”), are either owned by the Client, or that Client has a license or other permission to publish and use such Client’s Content. The Client understands and agrees that EWR’s incorporation of any of Client’s Content in the provision of EWR’s Services (including but not limited to EWR’s managing or broadcasting of Client’s Content on the Client Website or Client’s social media accounts) constitutes a publishing by Client and not EWR.
The Client shall indemnify and hold harmless EWR (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 EWR as a result of any claim, judgment, or adjudication against EWR related to or arising from (a) Client’s Content, or (b) a claim that EWR’s use of Client’s Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, EWR must: (i) give Client prompt written notice of a claim; and (ii) allow the Client to control, and fully cooperate with the Client in, the defense and all related negotiations.
- ENTIRE AGREEMENT; MODIFICATIONS.
This MSA, and the Service Agreement(s), sets forth the entire agreement and understanding between EWR and the Client as to the subject matter hereof and merges and supersedes all prior discussions, agreements and understandings of any kind and every nature between them. There are no representations, warranties or commitments except as set forth in this MSA. Neither this MSA nor any Service Agreement shall be changed, modified or amended except by a writing signed by both parties. This MSA and any Service Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- CLIENT COOPERATION
In order for EWR to timely provide the Services, it is imperative that the Client: (i) timely provides EWR with all information necessary, as and when EWR needs it, and in the format EWR requests and requires it in; (ii) timely reviews all work product delivered to the Client by EWR, and provides timely approval (or rejection) of such work product or deliverables. If Client Cooperation does not occur, it could result in a delay of the Services being provided from the agreed to dates in the timelines disclosed in the Services Agreement.
Website Maintenance Agreement
Term and Termination
This Agreement shall be effective as of the time frame Client signs up for Maintenance Services or Marketing Services. This Agreement may be terminated by either party upon 30 day written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by EWR (i) immediately if Client fails to pay any fees hereunder; or (ii) if Client fails to cooperate with EWR ability to perform the Maintenance Services hereunder. Client will then have 30 days to get of EWR server with electric notification and then EWR reserves to right to suspend the account and is assumes no liability for lost or potential revenue. By Client using EWR services they are agreeing to this.
SCOPE OF WORK
EWR will provide website maintenance and technical support for client domain agrees to provide such services to the Client on a quarterly basis. Services not considered “standard website maintenance or technical support” are subject to be charged at a separate rate and will not be considered part of this agreement.
a) What IS included in this Agreement
EWR agrees to provide Client with Web Maintenance Services as described in this Agreement. Maintenance Services include and up to 3 hours of standard website maintenance and technical support for client website every three months, which includes:
- Regular monitoring and updating to ensure performance across all the latest versions of Chrome, Internet Explorer, Safari and other web browsers.
- Security protection against hackers from gaining access to your site.
- Regular and thorough backups of your website so that it may be fully restored in case of loss.
- Monitoring your website functionality to ensure that everything is working as it should and provide updates when necessary. Software updates may be necessary to address security or stability issues in the software or to add new features, and may include:
- Server-level updates (Linux, PHP, Apache, and various submodules)
- Application-level updates to WordPress, and themes
- Plugin-level updates for specific functionality within the context of the CMS
- Guaranteed response for bug fixes and maintenance issues
- Assisting with downtime or performance issues by liaising with the web host provider.
- Removal of malware, spam, and malicious code from Client’s website* (An additional charge per incident for clients who are on a maintenance plan at the time of infection could be incurred if recovery goes over allotted time.)
- The addition of new features or changes to existing features on the website. If the time required to complete these changes exceeds the time allotted in the agreement, additional hours will be billed separately (See Additional Services).
These tasks do not cover advanced or complex tasks such as a setting up a complete online shopping cart system, installing a booking system, calendar or membership section, custom PHP programming, developing a full site, creating a landing page for advertising, creating a new page on your site that is different from your existing site pages (i.e. anything that involves design and development work), creating a complex form that will take more than an hour to do, etc.
Tasks that go over the amount of time allotted per month will be billed at our regular standard rate (you will be notified before completing them, if that is the case).
If any regular maintenance or software update procedure requires additional time to complete beyond the scope of this agreement EWR will notify the Client in advance and any additional time will be billed separately. Support hours expire at the end of the quarter and do not roll over to the next maintenance quarter.
b) What is NOT included in this Agreement
- Maintenance, support, or hosting services for websites other than Client website.
- Domain name registration, DNS service, or email services.
a) Payment Schedule
Client agrees to pay EWR will be billed quarterly in exchange for the above services. The first payment is due upon execution of this Agreement. Subsequent payments will be due every three months thereafter. All payments are due upon receipt.
b) Late Payments
If the Client fails to pay any amount properly due under the Agreement by the due date, Client may, after giving three days’ notice to the Client, suspend any work until payment is made in full. EWR reserves the right to withhold delivery of any current work if accounts are not current or overdue invoices are not paid in full.
c) Third Party Fees
The Client is responsible for all third party fees, including any necessary license fees required to purchase and install new plugins or software on the website. These fees will be communicated to the client in writing before they are incurred.
DEADLINES & DELIVERABLES
EWR should respond via email to all maintenance requests from Client within hour 48 hours or less on weekdays with a confirmation that the request was received as well as an estimated completion date. Maintenance requests received after 5:00 pm CST on weekdays may not be completed until the next business day unless prior arrangements have been made.
EWR will make all reasonable efforts to adhere to all quoted deadlines for the deliverables in the Client’s maintenance requests. In the event that EWR has any issues in delivering on a quoted deadline, Client will be notified via email the reasoning for any change.
Any revisions, additions, or redesign the Client requests EWR perform that is not specified in this document shall be considered “additional” and will be billed as such. EWR shall advise Client on any requested work that falls within these bounds.
Services that could fall in these bounds are:
- Http 2 Support
- Brotli Compression
- Advanced Caching
- Provide CDNs
- SSL Renewals
- Speed Optimizations
- Ongoing DNS Management
- Database management
- Email configuration*
- SPAM protection
- FTP support
- Access control (User Permission Set-ups)
- Hotlink leech protection
- IP blocking
Client hereby authorizes EWR to 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 said hosting provider.
During the duration of this contract, the Client agrees that EWR will be the sole provider of maintenance services for the website, and no other party will have access to or rights to change the website. If a party other than EWR makes changes to the website, any errors that are created must be repaired and will be charged for at $115 per hour.
Client agrees to indemnify EWR against all claims, judgments, decrees, costs and expenses, including attorney’s fees, incident to any proceeding which may be brought against EWR or its agents, distributors, customers, or other vendors based on a claim of alleged copyright, trademark, or alleged misappropriation of a trade secret, as well as for a claim of alleged unfair competition resulting from similarity in design, trademark or appearance of Contract Products and Services provided under this Agreement.
Client agrees that it will, upon request of EWR and at Client’s own expense, defend or assist in the defense of any action which may be brought against EWR or its officers, employees, agents, distributors, customers, or other vendors for these claims of alleged infringement, misappropriation, or unfair competition. EWR agrees to notify Client promptly upon receipt of notice of infringement or information of such a suit having been filed. This indemnification will be in addition to all other obligations under this Agreement.
The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
EWR will perform services hereunder only as an independent contractor. Client is to have no control over the methods and means of accomplishing the desired result. EWR will not be construed to be an employee or agent of Client.
The Client or EWR cannot assign or transfer this Agreement to anyone else without the written permission of the other party.
d) Limitation of Liability
In no event will either party be liable, whether in contract, tort, or otherwise, for any incidental, special, indirect, consequential or punitive damages, including, but not limited to, damages for any loss of use, loss of time, inconvenience, commercial loss, or lost profits, savings, or revenues, to the full extent such may be disclaimed by law.
The total liability of EWR or Client, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise, is limited to the price of the particular services purchased, sold, or otherwise at issue hereunder with respect to which losses or damages are claimed.
Both parties have had adequate opportunity to obtain legal representation and this Agreement reflects arms’ length negotiations. Neither party will be deemed the drafter and no ambiguity in the Agreement will be construed against either party.
f) Contract Cancellation
The Client may cancel or choose not to renew this Agreement at any time by providing written notice to EWR. Within five business days of such cancellation, Client will be responsible for securing their own web hosting account, web font hosting account, and technical support provider, as EWR will no longer provide these services. Any fees billed to and/or paid for by the Client up until the point of cancellation are non-refundable and will not be reimbursed by EWR to the Client.
EWR may cancel or choose not to renew this Agreement at any time by providing 30 days written notice to Client. In the event of cancellation or non-renewal by the provider, PROVIDER will provide a prorated refund for unused services and all files necessary to migrate the website to another host.
g) Governing Law
This Agreement is shall be governed by the laws of the State of TEXAS. Any disputes arising under this Agreement shall be settled by arbitration, to take place in HOUSTON, TEXAS.
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.
i) Entire Agreement
This Agreement contains the entire agreement of the parties with respect to the subject matter of the Agreement. The Agreement supersedes any prior agreements, understandings, or negotiations, whether written or oral. This Agreement can only be amended through a written document formally executed by all parties.