Introduction
This Master Services Agreement (MSA) is made and entered into by and between Agate Fire Creative LLC (hereinafter "we," "us," "our," or "Agate Fire") and you, our Client (hereinafter "You", "Your" or "Client"). In consideration of the mutual covenants contained herein, the parties hereby agree to the terms and conditions outlined in this Agreement.
In this document, we try to write everything in plain English; however, its intent is serious. We do want what's best for the safety of both parties, now and in the future. There is some unavoidable legalese at various places in the document. Sorry, our attorney required it. If you need assistance translating, just ask.
Scope of Services
The Care Plan (also known as a Maintenance and Hosting Plan) is a month-to-month contract for Agate Fire to provide ongoing technical support for the day-to-day management of servers, system hardware, and software, along with consultation and guidance on the use of your website. Ongoing Care Plans include business class hosting on our VPS server, website backups, software updates, some limited plugin licenses, support, and security.
While we do our best to monitor and maintain the usability of your website. IT IS ULTIMATELY YOUR RESPONSIBILITY TO INFORM US IF YOUR SITE IS EXPERIENCING PROBLEMS AND NEEDS ATTENTION.
Security
There are bad people out there—grumpy teens, professional miscreants, and swarms of bots. We employ overlapping measures to improve, harden, and maintain the security of your website, from real-time firewalls, brute-force protection, malware scanning/cleaning, and much more. However, due to the nature of rapidly advancing technology, risks beyond our control will always exist. We can no way guarantee that your website will not be subject to security breaches. Our goal is preventative maintenance to minimize risk. However, disaster recovery is included with the Business and Business Pro Care Plans if your site is compromised.
Disaster recovery does not apply to the Essential Care Plan Package. All efforts to restore the website under this plan will be billed at our standard hourly rate.
Software Updates
Keeping your website's software up to date is essential in maintaining a safe and sound website. Our Care Plans include updates of the WordPress core software, your theme files, and your plugin files. We perform updates on your site once per week for the items that appear in the "Updates" area of your WordPress dashboard. Agate Fire monitors known WordPress vulnerabilities daily – any critical security updates will be installed as they become available. Updates will include any 3rd party plugins, themes, software, or applications as long as a current license is active.
We may install a support management plugin on your WordPress site for the purpose of facilitating your Care Plan Services. Its purpose is to allow us to access, monitor, and update files related to the maintenance of your site.
From time to time, an update may be incompatible with another aspect of the Client's website, resulting in an impairment in the operation or functionality of the website or some aspect. As part of our Care Plans, we will rollback the update and attempt to resolve the conflict at no additional cost. Should attempts to resolve the conflict fail, Agate Fire will consult with you to determine the best course of action and alternate solutions.
Website & Database Backups
With our Care Plans, your website's files and database will be backed up per the frequency of your selected package. This backup is stored in a cloud data vault where we retain the previous 90 days of backups for your site.
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 are the result of 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 3 restorations in any 30-day period. Additional user error related restorations will be performed at our standard hourly rate with a one-hour minimum.
Clients who are current on their invoices may request a backup copy at any time - please email support@agatefire.com.
Website Hosting Service
Our pricing assumes web hosting on our private VPS server. This server is optimized for WordPress and our workflow. Since using other servers usually requires a change in our workflow (and makes tasks take longer as a result), there will usually be a surcharge added if you choose not to host your website with us. IF YOU ELECT NOT TO HOST ON OUR SERVER, WE CANNOT BE RESPONSIBLE FOR THE SPEED OF YOUR SITE, THE PERFORMANCE OF ANY OF YOUR SITE FEATURES, OR THE UPTIME OF YOUR SITE. FIXING ANY PROBLEM, WE DEEM TO BE RELATED TO YOUR WEB HOSTING WILL BE CONSIDERED BILLABLE AT OUR STANDARD HOURLY RATE.
Hosting Migrations are provided as a courtesy service, and we do not make any guarantee regarding the availability, possibility, or time required to complete a Hosting Migration. Each third-party hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format.
Migration of Servers. You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to maintain your given IP numbers consistently.
A free Let's Encrypt SSL Certificate is provided with all hosting accounts. Premium paid SSL options such as Domain Validation (DV) or Extended Validation (EV) certificates are available upon request for an additional fee.
Agate Fire contracts with a third-party hosting company for the management of our Virtual Private Server (VPS). Our services are subject to both these Terms and A2 Hosting's Acceptable Use Policy (the "AUP", as amended from time to time, available at https://www.a2hosting.com/about/policies#Acceptable-Use-Policy and incorporated herein by reference).
Licenses
It is the SOLE RESPONSIBILITY OF THE CLIENT TO OBTAIN PROPER LICENSING of any premium plugin, theme, or integrated software program, including any recurring licensing fees. We cannot 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.
Included in our Business and Business Pro Care Plans are a limited number of premium plugins that are licensed to Agate Fire Creative via developer licensing, which allows us to use our professional licenses on your site. As part of our Care Plan engagement, you can use our licenses to ensure updates to any associated plugins. If you choose to cancel your Care Plan engagement with us, the licenses for these plugins will be removed from your website. You will have the option to acquire your own license for any of these plugins by directly buying them from the vendor. For more information on what plugins we provide and where they can be purchased, please email support@agatefire.com.
Not Included in Scope of Services
Explicitly excluded from this Agreement is website redesign, re-alignment, re-development, installation/ configuration of new plugins, cost of Content Delivery Networks (CDN), search engine optimization (SEO), developing new content, writing new copy for the Client or new development needs that arise as a result of future updates to WordPress, plugins, or other third-party systems. Nor does this Agreement include training on how to use your website, WordPress, or email. Clients who need SEO work must sign up for one of our SEO Packages.
Communication and Availability
All communications will be done during regular business hours, Monday through Friday, from 8:00 AM to 5:00 PM (CST). We are closed on weekends and most major US holidays. To ensure proper routing, tracking and prioritization, all communication and requests must be sent to https://agatefirecreative.com/submit- ticket/. We guarantee to respond to your requests within 2 business days of when you contact us. Please note that email or Slack is often subject to personal schedules and while it may be included in the communication chain, is not subject to triggering a response time window. Any requests submitted after closing are considered submitted the next business day. Resolution of issues will be handled by priority and urgent requests may affect the delivery of regular sprint-based work.
Exceptions are made in the case of the Client's website being totally offline or if functionality is critically impaired, in which case their issue would be considered an 'emergency' and would take priority before any other support requests.
Client Representations
Client makes the following representations and warranties:
- Client guarantees to Agate Fire Creative LLC and unconditionally guarantees that Client's website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Care Plan Services.
- Client represents to Agate Fire Creative LLC and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork existing on the website or furnished to Agate Fire Creative LLC are owned by Client, or that Client has permission from the rightful owner to use each of these elements.
- Client agrees that the Client is solely responsible for complying with all laws, taxes, tariffs, and PCI Compliance arising from the Client's exercise of Internet electronic commerce.
Refusal or Discontinuation of Service
Agate Fire Creative LLC reserves the right to refuse, suspend, restrict, or terminate service to any client for any reason. This may include accounts that are using excessive resources or are in Direct Violation of Acceptable Use Policies such as copyright infringements, spoofing, phishing, threats/harassment, illegal activities, or contains offensive, obscene, hateful, malicious content. Any violation will be determined at our sole discretion.
Domain Names
Registering a domain name for your website and paying the annual fee for it is your responsibility. We can assist in the process of registration and connecting your name to the website if you desire. Be sure that the credit card and email address the domain registrar has on file for you is current.
WE ARE NOT RESPONSIBLE FOR SUSPENSION OR LOSS OF DOMAIN NAMES BECAUSE YOUR CARD COULD NOT BE BILLED. Any time spent reestablishing your site after the domain name expires is billable at our standard hourly rate. FYI, it can be expensive and complicated to recover an expired domain name.
As a courtesy, Agate Fire will purchase and manage domain names on behalf of the Client. The domain names remain owned by the Client in full, so long as the Client is current on their annual domain renewal fees paid to Agate Fire Creative LLC. If a renewal fee is delayed beyond 30 days, the customer forfeits their rights to ownership of the domain, and any services attached to the domain name may be terminated.
Clients who are current on their domain renewals may request transfer to another domain registrar at any time.
Fees and Payments
Care services are purchased on a month-to-month subscription basis. Subscription payments will be charged on a pre-pay basis on the day you sign up for our service. Your subscription will automatically renew on the same day every month, and you authorize us to collect the then-applicable annual or monthly subscription fee for such subscription (as well as any applicable taxes) using any credit card or other payment mechanism we have on record for you. The Client further agrees to pay for any ad hoc work on a time and materials basis that is provided at the Client's request, which is outside the scope of a Care Plan.
Late Payment and Collections Policy
All invoices are payable on receipt. If an invoice goes unpaid for more than 30 days after the invoice was sent and on notice to the Client, WE RESERVE THE RIGHT TO SUSPEND YOUR WEBSITE FROM PUBLIC VIEW if it is still unpaid after 60 days. We really hate to do this, so please pay promptly. In order to restore service, all outstanding bills must be paid. After 90 days, your Care Plan Agreement will be terminated, all files will be removed from our servers, and we will not be required to provide you with a backup of your site.
Any outstanding amounts not paid within a thirty (30) day period will be considered past due and will accrue interest at the rate of 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 if a check tendered for payment is not honored by the bank for non-sufficient funds ("NSF"), it will not be re-deposited, and the Client will incur a fee of $35 per instance. If a customer initiates a chargeback on a credit card or PayPal account, we will immediately suspend the account until the matter is resolved. In addition, we may assess a $50.00 processing fee for each individual chargeback.
Cancellation of Care Plan Services
There is no contract for any of our Managed Care Plan and Hosting Services, and you are free to cancel any time. Simply request a cancellation via email to support@agatefire.com, and we will stop the next payment within 48 hours and suspend all services at the end of the current billing cycle or earlier at the discretion of the Client. Agate Fire does not offer refunds for any monies already paid on Care Plans and will no longer have any obligation to maintain any data. IF YOU ELECT TO DISCONTINUE CARE SERVICES, THE TOTAL RESPONSIBILITY IS YOURS FOR HOSTING ALL DATA, 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, at your discretion, (1) provide you with an administrator login for your WordPress site so a backup can be performed and migrated to the new location, (2) provide a backup to you created using an industry-standard WordPress backup system at the cost of $85, or (3) perform the website migration for you at our standard hourly rate.
Increase in Fees
Agate Fire expressly reserves the right to change the fees and/or hourly rate charged hereunder for the Services only with 60 days advanced notice to the Client. If Client does not agree to any such pricing change, it may cancel the Services within thirty (30) days from the date of your notice; otherwise, all such modifications shall be effective with respect to Client's account, and Client agrees that Agate Fire is authorized to charge the payment method provided by Client for any new Services Fee, on the next monthly or annual (as applicable) payment cycle.
Standard Hourly Rate
Throughout this Master Services Agreement, references may be made to our standard hourly rate. This rate is defined as our hourly rate that is in place at the time a service is requested, not at the time this services agreement is signed. We will provide you with our standard hourly rate upon request.
Confidentiality
Client and Agate Fire Creative LLC agree that any confidential or sensitive information will be held in strict confidence by the receiving party and that the receiving party will not disclose, publish or disseminate confidential information, in whole or in part. This provision will continue to be effective after the termination of this Contract.
Third-Party Services
From time to time, our clients might employ the services of a third party that involves edits or modifications to their website. AGATE FIRE CREATIVE LLC CANNOT BE RESPONSIBLE FOR THE WORK OF ANY THIRD PARTY. Should our services be necessary to repair any work performed by a third party, these services are billable at our standard hourly rate.
Disclosure to Law Enforcement
We may disclose information about our clients to law enforcement agencies upon the service of a warrant from such agencies followed by immediate notice to the Client. We will cooperate fully with such legal requests of law enforcement agencies.
Email Deliverability
Occasionally, your WordPress website will send an email when certain events occur, such as upon the completion of a contact form, sale of a product, update/reset of a user's password, etc. Automatically generated emails such as these are sometimes flagged as spam (or not delivered at all) by email providers like Google/Gmail, Microsoft, Yahoo, and others.
Since we can only control the sending of email and not its reception, Agate Fire Creative LLC cannot be held responsible for any emails that were not delivered to the Client for any reason. While we employ best practices to increase deliverability, this service is not guaranteed and is provided at best effort. It is the Client's responsibility to regularly check spam folders, website forms, and order interfaces for any notifications that were not delivered to the Client's inbox.
Email Hosting Service
WE DO NOT PROVIDE OR SUPPORT EMAIL SERVICE TO CLIENTS. We recommend implementing third-party services such as Google Workspace (GSuite), Microsoft Office 365, or Zoho Mail.
Legal Pages and Compliance Requirements
Depending on the nature of your website and your location, legal pages such as Terms of Use and policy pages such as Privacy Policy, Return Policy, Shipping Policy, Cookie Policy, etc., may be required by government entities, vendors, or licensing agencies for your site. IT IS THE SOLE RESPONSIBILITY OF THE CLIENT TO DETERMINE WHETHER SUCH PAGES ARE REQUIRED. It is advisable to consult an attorney to determine your responsibilities in this matter. The creation of the content for these legal pages is not included in this Agreement. However, if you provide the content for these pages, we will typically add them at no additional cost.
IT IS THE SOLE RESPONSIBILITY OF THE CLIENT TO INFORM US THAT YOUR WEBSITE MUST BE COMPLIANT WITH ANY REGULATORY BODY such as but not limited to the EU's General Data Protection Regulation (GDPR), the California Online Privacy Protection Act (CalOPPA), Children's Online Privacy Protection Act (COPPA), HIPAA, WCAG, or PCI. Compliance with regulations such as these will typically result in an additional charge.
Relationship of Parties
Agate Fire Creative LLC represents, acknowledges, and always agrees that it is an independent contractor and not a servant, agent, or employee of Client and will not be treated as an employee for any purposes. As an independent contractor, it is Agate Fire Creative LLC's responsibility, and Agate Fire agrees to comply with all federal and state laws, including, but not limited to, laws regarding independent contractors, taxation, and employees.
The Client agrees that Agate Fire Creative LLC is an independent contractor. Nor will they not exercise any supervision or control over the manner in which Agate Fire Creative LLC provides the services required hereunder. Further, as an independent contractor, we may be engaged by one or more other organizations for our expertise. It is fully acknowledged by you that we may be contracted by similar companies who may be competitive with you. It is the responsibility of the Client to notify Agate Fire of any competitors that may pose a conflict prior to entering into this agreement.
Force Majeure
Neither party shall be liable for any failure or delay in performance under this Agreement due to causes beyond its reasonable control, including without limitation, acts of God, fire, natural disaster, civil disturbances, mechanical or computer failure, legal restrictions, terrorist activity, strike, war, or any other similar catastrophe, insofar as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or overcome the force majeure through the exercise of commercially reasonable diligence. In the event of such failure or delay in performance by Agate Fire Creative LLC, Client shall only be responsible for payment of services performed prior to the force majeure.
Governing Law
This Agreement, and any related Statements of Work, shall be construed in accordance with and governed by the laws of the State of Wisconsin without giving effect to any conflict of law's provisions.
Indemnification
The Client agrees to indemnify and hold harmless Agate Fire, its subsidiaries, contractors, employees and affiliates and each of their respective directors, officers, employees, shareholders, and agents (each an "Indemnified Party") against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, "Losses") to which an Indemnified Party may become subject and which Losses arise out of, or relate to the Agreement, Client's use of the Services, breach of any confidentiality obligation or any alleged infringement of any trademark, copyright, patent or other intellectual property right and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys' fees incurred by such Indemnified Party, in connection with investigating, defending, or settling any Loss, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
Disclaimer of Warranty
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.
EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, AGATE FIRE CREATIVE LLC 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.
Limitation of Damages or Liability
IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE AGATE FIRE CREATIVE LLC, ITS AFFILIATES AND ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, FOR HARM CAUSED BY OR RELATED TO THE CUSTOMER'S SERVICES OR INABILITY TO UTILIZE THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
NOTWITHSTANDING ANYTHING ELSE IN THIS MASTER SERVICES AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF AGATE FIRE CREATIVE LLC AND ANY OF ITS EMPLOYEES, AGENTS, CONTRACTORS OR AFFILIATES, UNDER ANY THEORY OF LAW SHOULD NOT EXCEED THE AMOUNT OF FEES IT HAS COLLECTED ON THE CUSTOMER'S ACCOUNT IN THE LAST SIX MONTHS.
Modifications
Agate Fire may modify this Master Services Agreement at any time. We will inform you about modifications by email. Agate Fire shall not be liable for your failure to receive an email notification due to an inaccurate email address.
If you do not agree to the changes in the Master Services Agreement, you must notify us via email support@agatefire.com, suspend use of the Services, and terminate this Agreement within ten (15) business days of receiving notification from us.
To the extent permitted by applicable law, continued use of the Services after you have received a notice for the changes will be considered as acceptance of such changes and in force in the agreement between the user and Agate Fire, unless you have sent us a termination notice.
Newsletters
From time to time, Agate Fire will send its clients newsletters with information we feel is essential for the Client to know about. We try to limit these emails to no more than two a month. As a client, you are automatically added to our newsletter system. You can always opt-out of these emails by clicking on the unsubscribe link in the email or contacting Agate Fire by email.
Marketing and Attribution Link
We reserve the right to use your project as an example in our promotional material and case studies. You agree that we may use your company name, logo, and website address in our marketing materials, including websites, brochures, emails, and any other marketing, unless explicitly otherwise agreed.
Headings
The section headings used herein are for convenience of reference only and do not form a part of this Agreement, and no construction or inference shall be derived therefrom.
Assignability
Neither the Agate Fire nor the Client may assign this Agreement without the prior consent of the other. Agate Fire Creative LLC reserves the right to assign subcontractors as needed to ensure on-time completion.
Last Updated: 05/05/2021