site doctor service agreement
This SITE DOCTOR SERVICE AGREEMENT ("Agreement") is an agreement between AlohaFX ("Company") and the party set forth in the related order form ("Customer" or "you") incorporated herein by this reference (together with any subsequent order forms submitted by Customer, the "Order") and applies to the purchase of all services ordered by Customer on the Order (collectively, the "Services"). The parties understand, acknowledge and agree that this is an online agreement which is being entered into in conjunction with the Order.
PLEASE READ THIS AGREEMENT CAREFULLY.
SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT. YOU ARE 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. YOUR AGREEMENT TO THE TERMS HEREOF ALSO CONSTITUTES YOUR AGREEMENT TO THE USER AGREEMENT AND OTHER "TERMS OF SERVICE" LOCATED AT: AlohaFX.com/terms
#1 TERM AND TERMINATION
Term of Agreement
This Agreement shall be effective as of the date set forth on the Order and shall remain in force until thirty (30) days after notification of service completion is provided to Customer, which shall take place not later than thirty (30) days after the Order ("Delivery Date"). Company cannot guarantee the Delivery Date but will use commercially reasonable efforts to perform the Services in an efficient and timely manner.
This Agreement may be terminated by either party upon 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 forty-eight (48) hours of receipt of the notice. This Agreement may be terminated by Company (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with Company or hinders Company's ability to perform the Services hereunder.
#2 COMPANY'S AND CUSTOMER'S RESPONSIBILITIES
A) Scope of Work
Customer hereby retains the services of Company to perform malware removal and/or software upgrades in accordance with the Order.
The Services are not available to hosting accounts that are in violation of the Terms of Service, including but not limited to, violations of file count and/or database size limitations.
C) Company Responsibilities
Company will make a good faith effort to locate and remove any malware on Customer's account and upgrade any script/application available in the SimpleScripts tool in accordance with the Order. Company will provide an email notification to Customer upon completion with a summary of Company's actions taken and malware found. Company agrees to notify Customer promptly of any factor, occurrence, or event coming to its attention that may affect Company's ability to meet the requirements of this Agreement, or that is likely to occasion any material delay in the Services.
D) Customer Responsibilities
Customer agrees to perform all tasks assigned to Customer as set forth in this Agreement or a Change Order, and to provide all assistance and cooperation to Company in order to complete fulfillment of the Services. Company shall not be deemed in breach of this Agreement, the Services, a Change Order, or any milestone in the event Company's failure to meet its responsibilities and time schedules is caused by Customer's failure to meet (or delay in) its responsibilities and time schedules set forth herein, a Change Order, or this Agreement. In the event of any such failure or delay by Customer (i) all of Company's time frames, milestones, and/or deadlines shall be extended as necessary; and (ii) Customer shall continue to make timely payments to Company as set forth in this Agreement and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by Company.
#3 MALWARE REMOVAL
The malware removal portion of the Services consists of:
Review of Customer's account to locate malicious scripts and code injections.
Removal of detected malware by file editing to remove malicious code or by restoration of known good files from available backups.
Assistance with restoration of site functionality, if necessary, within the standard scope of Company technical support.
B) Limitations of the Services
Company will not:
Attempt manual reprogramming of file code to correct errors.
Make any modifications to compromised databases.
Make any representation or guarantee indicating that the Services will detect and remove 100% of any malware present.
Make any representation or guarantee that the Services will prevent any future compromise of the account.
#4 SOFTWARE UPGRADES
The software upgrade portion of the Services consists of:
Update of installed applications/scripts to the latest version available through the Simple Scripts tool.
A review of the account and installed applications/scripts and recommendations for changes to improve account security.
B) Limitations of the Services
Company will not:
Upgrade or modify any applications not available through the SimpleScripts tool.
Make new modifications or re-insert any custom modifications to application or theme default programming.
Make any representation or guarantee that any addon, theme, or plugin in use will be fully compatible or functional with upgraded software.
Make any modifications to any addon, theme, or plugin programming in order to facilitate functionality with upgraded software.
In the event that Customer's account is compromised within thirty (30) days from the date that notice of completion is provided, Company will perform one additional execution of the Services at no cost to Customer. Company must be notified of the compromise of the account within the thirty (30) day maintenance period in order for this provision to apply; Company will not monitor the account. This provision is also void if Customer restores any compromised backup files to the account.
#6 PAYMENTS AND REFUNDS
The total price for all of the work set forth in the Order is $199.99 per account. If the Services are ordered for a Reseller acccount, the primary reseller account and each individual resold account shall be considered separate accounts for billing purposes. Unless otherwise stated in the Order, this fee is due and payable upon placing the Order and Company shall have no obligation to perform any work until payment is received and such funds are cleared from the relevant financial institution.
A full refund is available upon request before initiation or up to seven (7) days after notification of completion of the Services. Any work performed will be reversed using available account backups if the refund is requested after notification of completion. Use of any files modified by Company due to performance of the Services after a refund is issued shall be considered a material breach of this Agreement and the Terms of Service and may result in actions up to and including termination of the Customer's account.
#7 REPRESENTATIONS AND WARRANTIES
Company represents and warrants that (1) Services shall be performed in a workmanlike manner and with professional diligence and skill; (2) Services will conform to the specifications and functions set forth in this Agreement; (3) Company will perform a second cleaning of Customer's account, if necessary, as specified in Section 5 above; and (3) Company will perform all work called for by this Agreement in compliance with applicable laws. This warranty shall extend for the life of this Agreement. This warranty does not cover changes to the Customer's web site that are not a result of Company's error.
Disclaimer of Other Warranties.
COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET THE CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF CUSTOMER'S WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEB PAGES AND WEB SITE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, COMPANY 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 Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER 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. THE MAXIMUM REMEDY AVAILABLE TO EITHER PARTY IS ANY AMOUNT PAID BY CUSTOMER HEREUNDER. COMPANY 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.
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, Company and Customer 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 date of disclosure.
#8 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.
#9 RELATIONSHIP OF PARTIES
Company, 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. Company shall be solely responsible for and shall hold Customer harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workers' compensation.
Customer does not undertake by this Agreement, the Order or otherwise to perform any obligation of Company, whether by regulation or contract. In no way is Company to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.
This Agreement shall be governed in accordance with the laws of the State of Utah. All disputes under this Agreement shall be resolved by arbitration as set forth in Section 17 below or by litigation in the courts of the State of Utah 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.
#11 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.
Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Company. Company reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
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.
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.
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
#16 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.
Customer and Company 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 Utah County, Utah 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' 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 Utah 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 Utah 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.
#18 READ AND UNDERSTOOD
Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.
#19 DULY AUTHORIZED REPRESENTATIVE
If this Agreement is executed then each Party warrants that their representative whose signature appears on such signature pages is the duly authorized by all necessary and appropriate corporate actions to execute this Agreement.
This file was last modified: July 1, 2015.