Project Work

Ownership of artwork

Upon full payment and completion of the term of this contract, the client shall obtain ownership of the final artwork to use and distribute as they see fit. WPWIzard retains the right to use the completed project and any preliminary designs for design competitions, future publications on design, educational purposes, marketing materials, and portfolio display. Artwork is defined to include all website, email and advertising design and development work. Where applicable the client will be given any necessary credit for usage of the project elements.

Claims

Claims for defects, damages, and/or shortages must be made by the client in writing within a period of thirty (30) days after delivery of all or any part of the order. Failure to make such claim within the stated period shall constitute irrevocable acceptance and an admission that they fully comply with terms, conditions, and specifications.

Proofing

The designer shall make every effort to ensure the final product is free of any grammatical and spelling errors, before giving the final product to the client. It is agreed that it is the client’s responsibility to ensure that there are no spelling or grammatical errors contained in the final product. It is agreed that the designer is not responsible or held liable for any errors contained in the final product after it has been approved by the Client and/or committed to print or posted in view of the public.

Cancellation

In the event of cancellation of the project, ownership of all copyrights and the original artwork and disks shall be returned and retained by WPWIzard, and a fee for work completed, based on the Standard Hourly Rate price and expenses already incurred, shall be paid by the client.

Consulting Terms

This is in no way intended to serve as an employment contract between client and WPWizard. WPWizard shall remain an independent consulting firm, operating separately and autonomously from client.

Deliverable Acceptance

Client will provide timely feedback. Each Deliverable will be deemed accepted if, no later than the end of the business day, Seattle time, three days after its delivery to Client, Client does not reject the Deliverable by sending Agency written notice detailing the reasons for the rejection and reasonable modification guidelines. Agency is not responsible for delays, errors or omissions resulting from Client’s action or inaction, and will not be liable for any claims related to materials, specifications, and information provided by Client to Agency for the Project.

Expenses

Any expenses accrued through the duration of the project shall be fully reimbursed to Agency with NET 30 terms. All expenses shall be pre-approved by Client.

Reservation of Agency Technology

Agency shall own and retain all rights to any and all programming source code, software, technology, concepts, ideas, designs and other work, materials and information the creation or development of which predate this Agreement, including all modifications thereto made during the term hereof (the “Preexisting Material”). Agency hereby grants to Client a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, distribute, display and perform Agency’s programming source code, in compiled machine readable object code form only, to the extent incorporated into the Project, strictly for the purposes and in the territories set out herein.

Software License

All software products distributed and released by WPWizard are under the same license as WordPress which is the GNU GPL (General Public License.)

Website Hosting
& Maintenance

General Terms

  • WPWizard has the right to monitor the Website, and in its sole discretion to remove any content that WPWizard finds objectionable for any reason, without prior notice to Owner. This includes but is not limited to: Pornography, Spamming, Phishing Scams, Illegal business practices, any material infringing on National or International Copyright.
  • Website Owner is solely responsible for any liability arising out of or related to the Web Site. Owner agrees to indemnify and hold WPWizard harmless from and against any and all liabilities, losses, damages, costs, and expenses, including reasonable attorneys’ fees and experts’ fees, associated with any claim or action brought against WPWizard related to or arising out of the Web Site or Owner’s breach of its warranties under this Agreement.
  • WPWizard owns and retains full rights to any code/programs or software developed by WPWizard.
  • Website Owner owns all the content placed into the website product or service, assuming it was original and does not infringe on existing copyrights.
  • Any software used in website product or service released under the General Public License (GPL) is governed by such.
  • WPWizard reserves the right to modify and/or change these terms and conditions at any time.
  • Confidential Information means all confidential and proprietary information of a party disclosed either before or after the effective date of this Agreement and marked as such (if such information is capable of being so marked) regarding such party’s products and business that are disclosed by such party (the “Disclosing Party”) to the other party (the “Non-Disclosing Party”) under this Agreement including, but not limited to, the Disclosing Party’s intellectual property. Confidential Information also includes (a) the unpublished prices and other terms of service, audit and security reports, data center designs and other proprietary technology and (b) all information

WPWizard Obligations

Subject to your compliance with all of the terms and conditions of this Agreement, WPWizard shall provide the Services and Support to you during the term of this Agreement in accordance with the commitments made in the Service Level Agreement. In the event of a failure by WPWizard to meet the obligations defined within the SLA, your sole and exclusive remedy and WPWizard’s sole obligation are the issuances of Service Credits as set forth in the Service Level Agreement.

Your Obligations

You are solely responsible for the content of any postings, data or transmissions using Services, or any other use of the Services by a User. You agree to fully comply with all of the obligations and restrictions set forth herein. You agree to comply with all of the terms and conditions of this Agreement, make all payments of Fees when due and comply with any and all laws applicable to your use of WPWizard Services. You shall cooperate with WPWizard’s investigation of service outages, security issues or any suspected breach of the terms and conditions of this Agreement.

WordPress Only Hosting

WPWizard is Managed WordPress Host. We only allow WordPress and WordPress compatible plugins and themes. This means if you add any 3rd party software to an account/site that is NOT in the form of a WordPress plugin you are in breach of this agreement. Good: BuddyPress, bbPress, XYZ WordPress plugin. BAD: Your own code NOT in a WordPress plugin, or non WordPress applications such as: phpBB, Joomla, Drupal, etc.

WPWizard retains the right to audit such code for performance and security concerns and allow or disallow at sole discretion.

Client Roster & Client Trademark usage

By using this service you grant WPWizard permission and a royalty-free license to list or display applicable trademarked name(s) and logo in WPWizard’s client roster. This license will terminate upon the end of the ‘Term’ as described below. This permission does not extend to any form of advertising or marketing performed by or on behalf of WPWizard.

Fees

Your initial invoice will include any Setup Fees and the Recurring Fees from the Service Commencement Date until expiration of the Recurrence Period. Thereafter, WPWizard will invoice you in advance for the Recurring Fees and in arrears for the Non-Recurring Fees at the beginning of each Recurrence Period.
The Recurring Fees set forth in the Service Order shall remain fixed during the Initial Term. Upon commencement of any Renewal Term, the Recurring Fees for the Services shall be adjusted to the published fees then in-effect at the date of such renewal.

Payments

Monthly WPWizarding and Maintenance shall be paid by valid payment method (acceptable to WPWizard) at the time of purchase at the fee set forth on the WPWizard’s website. Client’s monthly or annual payments for the Monthly WPWizarding and Maintenance, depending on the plan selected by Client, shall be automatically charged to the payment method provided by Client at the time of purchase (with such payments being charged in advance on a monthly or annual basis, as applicable) each month or annually, as applicable (“Monthly WPWizarding and Maintenance Fee”), and you hereby agree that WPWizard is authorized to so charge the payment method on file. WPWizard may, at its sole discretion, suspend or terminate Monthly WPWizarding and Maintenance Services without notice if Client fails to provide payment for the new term.

Suspension_of_Services

You acknowledge and agree that WPWizard may suspend providing the Services to you, in whole or in part, without liability if (i) you fail to pay the Fees due to WPWizard for a period of forty-five (45) days after the date of the invoice, (ii) you are in violation of the terms of this Agreement, (iii) you fail to reasonably cooperate with WPWizard’s investigation of any suspected breaches of this Agreement, (iv) WPWizard reasonably believes that the servers WPWizarding the Services have been accessed or manipulated by a third party without your or WPWizard’s consent, (v) WPWizard reasonably believes that suspension of the Services is necessary to protect the WPWizard environment generally, or (vi) WPWizard is obligated to suspend Services via subpoena, court order or otherwise as required by law. WPWizard will give you notice promptly after taking any of these activities. You are required to pay any Recurring Fees for any period of time during which your Services were suspended. WPWizard will restore the Services promptly after you remedy the reason for such suspension.

IN THE EVENT WPWIZARD TAKES ANY ACTION PURSUANT TO THIS SECTION, IT SHALL HAVE NO LIABILITY TO YOU OR ANYONE CLAIMING BY OR THROUGH YOU. Nothing herein shall preclude WPWizard from pursuing other remedies available by statute or otherwise permitted by law.

Term

The “Term” will refer to the time period between the Service Commencement Date, and the date your service is terminated. Commonly referred to as “No Contract”, services are offered on a cancel anytime basis.

Termination/Cancellation

You may cancel service at any time by following our published cancellation procedure. Your service will cancel/terminate within 3-4 days after following this procedure. This will allow you some time to gather your files and transfer your service before the site is removed from our system.

Refunds

WPWizard shall not be compelled to issue a refund, pro-rated or otherwise for any reason. WPWizard reserves the right to issue a refund on a case-by-case basis at WPWizard’s sole discretion.

Early Termination

Does not apply. See Term Above.

Termination for Breach

Without limiting WPWizard’s rights to suspend the Services, WPWizard may terminate this Agreement in the event of a material breach by you upon no less than fifteen (15) days prior written notice and opportunity to cure such material breach. Notwithstanding the foregoing, WPWizard may terminate this Agreement immediately if you violate the Acceptable Use Policy, whether or not you subsequently cure such violation.

Expiration of termination of this Agreement shall not relieve your requirement to pay Fees for Services provided prior to the effective date of termination.

Changes to Service

Any changes to the Services requested by the Client during the Term of this Agreement will result in a new Service Order and new agreement. Any unused payments under this Agreement shall be credited toward the new agreement.

Maintenance

WPWizard may from time to time conduct routine tests, maintenance, upgrade or repair any part of the network, and WPWizard shall use commercially reasonable efforts to give you prior notice thereof. You acknowledge that there may be instances where it is not practicable for WPWizard to give advance notice of a disruption, for example, in the event of an emergency, and WPWizard shall be entitled to disrupt the Services to conduct restoration and remedial works without prior notice.

Confidential Information

Each party will safeguard and keep confidential all Confidential Information of the other and will return the other’s Confidential Information upon request, except to the extent further retention of such Confidential Information is necessary for a party to perform any post-termination obligations or exercise any post-termination rights under this Agreement. Each party agrees to safeguard the other’s Confidential Information using measures that are equal to the standard of performance used by the Non-Disclosing to safeguard its own Confidential Information of comparable value, but in no event less than reasonable care. Neither party will use any Confidential Information of the other party for any purpose except to implement its rights and obligations under this Agreement and as otherwise expressly contemplated by this Agreement; provided, however, that if any party or its representatives is requested or required to disclose any Confidential Information by a subpoena or court order, that party will promptly notify the other party (unless prohibited by such subpoena or order) of such request or requirement so that the other party may seek an appropriate protective order or other appropriate relief and/or waive compliance with provisions of this Agreement, and if, in the absence of such relief or waiver hereunder, any party or its representative are, in the opinion of its counsel, legally compelled to disclose Confidential Information, then that party may disclose so much of the Confidential Information the person compelling disclosure as is, according to such opinion, required, without liability hereunder.

Limitation of Liability

EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT:

EACH PARTY’S AND ITS LICENSOR’S CUMULATIVE LIABILITY TO THE OTHER PARTY AND ALL OTHER PARTIES FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICES OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICES SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU DURING THE PERIOD OF THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED OR THE PRO-RATA EQUIVALENT IF THE RECURRENCE PERIOD IS ANNUAL. EXCEPT TO THE EXTENT SET FORTH IN THE SERVICE LEVEL AGREEMENT, WPWizard SHALL HAVE NO LIABILITY SHOULD THERE BE ANY DELAY IN THE PROVISION OF THE SERVICE.

NEITHER PARTY OR ITS LICENSORS SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR ANY DATA SUPPLIED THEREWITH OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICES, EVEN IF WPWizard HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCE SHALL WPWIZARDASSUME ANY LIABILITY OR RESPONSIBILITY TO YOU FOR SUSPENSION OF SERVICE TO THE EXTENT PERMITTED BY THIS AGREEMENT.

Indemnification

WPWizard shall defend, indemnify and hold you, your affiliates or any of your or their respective employees, agents or suppliers, harmless from and against any and all costs, liabilities, judgments, actions, losses and expenses (including, but not limited to, reasonable attorneys’ fees and fees of experts) (collectively, “Losses”) arising out of any threatened or actual claim, suit, action, arbitration or proceeding (collectively, “Claims”) by any third party arising out of or relating to (i) WPWizard’s breach of confidentiality or gross negligence or willful misconduct or (ii) a claim that the Services as provided by WPWizard under this Agreement infringe upon the United States patent or copyright or other intellectual property right of a third party; provided that (a) you give WPWizard prompt written notice of the claim, (b) you permit WPWizard sole control over the defense and settlement of the claim and (c) you reasonably cooperate with WPWizard in the defense and or settlement of the claim.
You shall defend, indemnify and hold WPWizard, its affiliates or any of its respective employees, agents or suppliers, harmless from and against any and all Losses arising out of or relating to (i) your gross negligence or willful misconduct or (ii) your use of the Services in violation of the Acceptable Use Policy or the law; provided that (a) WPWizard gives you prompt written notice of the claim, (b) WPWizard permits you sole control over the defense and settlement of the claim and (c) WPWizard reasonably cooperates with you in the defense and or settlement of the claim. Your obligation under this Section 15 include claims arising out of acts or omissions by your employees, Users and any other person who gains access to the Services as a result of your failure to use reasonable security measures.

Ownership of Intellectual Property; Software; Hardware and IP Addresses

Each of us shall retain all right, title and interest in and to each party’s respective intellectual property rights, including without limitation, all patents, inventions, trademarks, copyrights and trade secrets. Any intellectual property used, developed or otherwise reduced to practice in providing the Services to you shall be the sole and exclusive property of WPWizard and/or its licensors, unless we specifically agree in writing otherwise.
You acknowledge and agree that you do not acquire any ownership interest in any of the servers or other hardware used to provide the Services hereunder. Similarly, we do not acquire any ownership interest in the content or data that you store on the servers or transmit via the Services.
You acknowledge and agree that third party software and hardware are used in the provision of Services. Accordingly, you agree to abide by the terms and conditions of any end user licenses or other agreements relating to the use of such hardware or software.
You acknowledge and agree that any IP addresses that WPWizard may assign to you in connection with the Services are registered to and owed by WPWizard and upon any expiration or termination of this Agreement, you agree to release and cease using any such IP addresses.

Service Level Agreement

Definitions

  • WPWizard = WPWizard™ and/or its Parent Company
  • Owner, User, You, Your = You, The paying Customer.
  • Scheduled Maintenance = maintenance (e.g. repairs, modifications, or upgrades) that is announced at least 48 hours in advance;

This Service Level Agreement (the “SLA”) is an integral part of your agreement with WPWizard for the provision of services (collectively the “Services”) set forth on the Service and Pricing Order Form.

This SLA defines the terms of our responsibility with respect to the Services that we provide (the Service Commitments) and your remedies in the event that we fail to meet these Service Commitments. This SLA and the refunds set forth herein (the Service Credits) represent WPWizard’s sole obligation and your sole remedy for our failure to meet such Service Commitments.

100% Network Uptime

WPWizard guarantees 100% network uptime for our public Internet network, excluding scheduled maintenance. In the event that our network does not experience 100% network uptime in a given month (excluding scheduled maintenance), WPWizard will credit 20% of your monthly service fees for each 3 hours of network downtime experienced up to 100% (for all Service Credits in a given month) of the monthly service fees for those Services affected. Notwithstanding the foregoing, you recognize that the Internet is comprised of thousands upon thousands of autonomous systems that are beyond the control of WPWizard. This SLA and the 100% Network Uptime Service Commitment cover the provision of access by WPWizard to the global internet “cloud”. Routing anomalies, asymmetries, inconsistencies and failures of the Internet outside of the control of WPWizard can and will occur and such instances shall not be considered any failure of the 100% Network Uptime Service Commitment.

100% Infrastructure Uptime

WPWizard guarantees that the critical infrastructure systems will be available 100% of the time in a given month, excluding scheduled maintenance. In the event that critical infrastructure systems do not experience 100% availability in a given month (excluding scheduled maintenance), WPWizard will credit 20% of your monthly fee for each 3 hours of downtime up to 100% (for all Service Credits in a given month) of your monthly fee for those Services affected. Critical infrastructure systems include all power and HVAC infrastructure, including UPSs, PDUs and cabling. Critical infrastructure systems do not include any software or services running on server, nor do they include any server hardware.

Backups

WPWizard runs nightly backup to Amazon S3 for each customer. The retention period is 14 days. User may log in to their control panel at any time and click to download a full copy of their site’s files and database. For VPS and Enterprise plans, users may provide their own Amazon S3 credentials and WPWizard will push an additional backup copy to that location each night.

Support

WPWizard shall supply unlimited technical support for the latest release of WPWizard. WPWizard shall not provide Maintenance and Supportrelating to flaws in operation arising out of: (i) changes tothe operating system or environment which adverselyaffects the Licensed Software; (ii) any alterations of oradditions to the Licensed Software performed by partiesother than WPWizard or at the direction of WPWizard; (iii) useof the Licensed Software not in accordance with theDocumentation; (iv) accident, negligence or misuse of the Licensed Software; (v) interconnection of the LicensedSoftware with other software not supported by WPWizard; (vi)modification of the database structure designed to beused by the Licensed Software or (vii) introduction orextraction of data into, or from any WPWizard LicensedSoftware database, by any means other than the use of WPWizard application programming interfaces. WPWizard shallhave no obligation to provide Maintenance and Supportunless Customer is current on all fees due under this Agreement. End User support will be provided as agreed in the terms of Client contract.

Service Credit Requests

All SLA claims must be filed in writing to WPWizard Accounting within 7 days of the incident. The support ticket must include all relevant information, including server name, IP address, full description of the incident, and any logs (if applicable). All SLA credits will be issued as credits against future invoices for services.
In order to qualify for Service Credits, you must be current on all payment obligations, not be in violation of the Terms of Service, Acceptable Use Policy or any other policies and procedures of WPWizard.
WPWizard proactively monitors network uptime, infrastructure uptime and hardware availability. The results of these monitoring systems shall provide the sole and exclusive determination of network uptime, infrastructure uptime and hardware availability.
No Service Credits will be given for service interruptions: (i) caused by the action or failure to act by you or your personnel, (ii) due to failure of any equipment provided by you, (iii) which are the result of scheduled maintenance, (iv) due to a force majeure event, (v) for which you are entitled to a Service Credit for the same or contemporaneous Service Commitment failure or (vi) resulting from your breach of the Terms of Service, Acceptable Use Policy or any other policies and procedures of WPWizard.
Total cumulative Service Credits during any given month shall not exceed your monthly fee for those Services affected.
WPWizard may modify any aspect of this SLA upon thirty (30) days prior notice. Should you wish to terminate the Service as a result of such modification, you may do so by sending a termination notice to WPWizard any time prior to the effective date of such modification. Absent such termination notice, the modified SLA shall apply from the effective date for as long as you continue to retain Services from WPWizard.

Miscellaneous

Non-Solicitation

During the term of this Agreement and for a period of one (1) year thereafter, you shall not solicit or hire the services of any employee or subcontractor of WPWizard without the prior written consent of WPWizard.

Force Majeure

WPWizard shall not be deemed to be in breach of this Agreement and shall have no liability hereunder if its obligations are delayed or prevented by any reason of any act of God, war, terrorism, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of your agents or your third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors) or any other cause beyond its reasonable control.

Notice of Claim and Filing of Suit

You must present any claim in writing to WPWizard within a reasonable time, and in no event longer than sixty (60) days after the event for which the claim is presented so as to permit the parties to attempt to resolve the claim. No action may be maintained against WPWizard under this Agreement, unless timely written claim has been given as provided above.

Notices

Except to the extent that notices may be sent by electronic mail as specifically set forth in this Agreement, notices under this Agreement will be sufficient only if (i) mailed by certified or registered mail, return receipt requested, (ii) sent by internationally recognized overnight carrier or (iii) personally delivered. Notices shall be deemed delivered upon receipt by the other party. Notices to you shall be sent to the address set forth on the Service Order. Notices to WPWizard shall be sent to WPWizard (WHAT ADRESS?)Attn: Legal. Either party may change their notices address by written notice to the other party.

Modification

Authority; Assignment. Without limiting WPWizard’s rights to modify the Terms & Conditions as set forth therein, WPWizard may modify any aspect of this Agreement without prior notice. Should you wish to terminate this Agreement as a result of such modification, you are free to do so.

You acknowledge that you have the authority to enter in to this Agreement on behalf of your company and that you may authorize other individuals to purchase additional services. This Agreement binds any of your authorized users, as well as your heirs, executors, successors, and assigns.

This Agreement may not be assigned by you without the prior written consent of WPWizard, which shall not be unreasonably withheld or delayed.

Governing Law; Jurisdiction

This Agreement is governed by the laws of the State of Arizona, excluding its conflicts of laws principles. You hereby submit to the exclusive jurisdiction of the federal and state courts of the State of Arizona; provided, however, that WPWizard shall have the right to institute judicial proceedings against you or anyone acting by, through or under you, in other jurisdictions in order to enforce WPWizard’s rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.

General

This Agreement, together with the Service Level Agreement, Acceptable Use Policy, any other documents referenced herein and any amendments between the parties, constitutes the entire understanding between WPWizard and You with respect to subject matter hereof. Terms and conditions as set forth in any purchase order which differ from, conflict with, or are not included in this Agreement, shall not become part of this Agreement unless specifically accepted by WPWizard.

 

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