Care Plan Client Agreement

Last updated: Sep 28, 2023 3:29 PM

This WordPress Care Plan Client Agreement (“Agreement”) is entered into between Jonathan Moore, hereinafter referred to as the “Service Provider,” and the Client, hereinafter referred to as the “Client.”

1. WordPress Care Plan Inclusions

The WordPress Care Plan provided by the Service Provider includes the following services:

• Weekly checks and updates to WordPress Core, Plugins, Themes, and Security.
• Daily backup of Database and Files.
• 24/7 security and uptime monitoring.
• Monthly client report detailing updates, monitoring, and performance.
• Technical support for issues that arise on the site.
• All features that are listed for the current WordPress Care Plan.

2. WordPress Care Plan Exclusions

The WordPress Care Plan does not include the following services:

• Creating new content for pages and posts.
• Editing content for Search Engine Optimization (SEO).
• Loading or formatting of e-commerce products.
• Interpretation of Google Analytics or Google Page Speed Insights.
• Creating or modifying media (graphics, audio, or video).
• Creating plugins or themes.
• Modifying third-party plugins or themes unless it can be done with code snippets.
• Setting up third-party service accounts on the client's behalf.

3. Client Responsibilities

As a Client entering into this WordPress Care Plan Agreement with the Service Provider, it is important to understand and fulfill the following responsibilities:

Provide Administrator Access to the Website: The Client agrees to grant the Service Provider Administrator access to the WordPress website in question. This level of access is essential for the Service Provider to carry out various maintenance tasks, updates, and security enhancements efficiently. Administrator access allows for necessary changes, such as updating plugins and themes, which are critical for maintaining the website's functionality and security.

Provide Login Information for Hosting (CPanel): In addition to website access, the Client must provide the Service Provider with login information for the hosting associated with the website. This information enables the Service Provider to manage settings, monitor hosting performance, and ensure seamless integration between the website and its hosting environment.

Allow Installation of Service Provider's Maintenance Plugin(s): To facilitate effective website management and maintenance, the Client must permit the installation of the Service Provider's designated maintenance plugin(s). This plugin is a key component of the maintenance process, enabling controlled updates, backups, and security enhancements. It helps ensure the website's stability, performance, and security.

Do Not Deactivate, Delete, or Alter the Service Provider's Maintenance Plugin(s): The Client agrees not to take any action that could compromise the functionality or security of the Service Provider's maintenance plugin(s). This includes refraining from deactivating, deleting, or altering the plugin without explicit authorization from the Service Provider. Disabling or altering the plugin could lead to vulnerabilities and potential issues with website maintenance.

Allow Installation of an Approved Security Plugin: If an approved security plugin is not already in place on the website, the Client must allow the Service Provider to install one. Security plugins are important for safeguarding the website against potential threats, vulnerabilities, and unauthorized access. The Client's cooperation in this regard is vital for maintaining the website's integrity.

Do Not Deactivate, Delete, or Alter the Approved Security Plugin: Similar to the maintenance plugin(s), the Client must refrain from deactivating, deleting, or altering the approved security plugin without explicit consent from the Service Provider. Any unauthorized changes to the security plugin may compromise the website's security and make it susceptible to threats.

By adhering to these Client Responsibilities, you actively contribute to the overall health, security, and effectiveness of your WordPress website. Ensuring proper access and not interfering with essential maintenance tools are critical steps in maintaining a secure and reliable online presence. Failure to comply with these responsibilities may hinder the Service Provider's ability to deliver efficient maintenance and support services.

4. Service Requests

It is the Client's responsibility to notify the Service Provider of any technical issues on the website and request service to resolve them.

Service requests must be submitted through the Client Portal. In case of a true emergency, the Client should submit a ticket to the Service Provider with “Emergency” selected as the ticket type. After submitting the emergency request the Client has the option to utilize the SMS number as provided in the Client Portal to send the Service Provider a short message regarding the issue.

Emergency Service Requests are defined as:

• Hack or disaster recovery requests.
• Errors rendering the site inaccessible (404, 502, 504, White Screen of Death, Website Offline, etc.).

The following service requests are not considered emergencies:

• PHP errors where the site is still accessible.
• Changes to existing website content.
• Slow load times.
• Website login issues.
• Website store customer issues.

The Service Provider will maintain open and transparent communication with the Client regarding the status and progress of all service requests. Updates and resolutions will be reported through the Service Provider's support ticketing system via the Client Portal, ensuring that the Client is informed about the actions taken to address each request. By adhering to this structured approach to service requests, both the Client and the Service Provider can maintain effective collaboration and ensure that website maintenance and issue resolution are handled efficiently.

5. Cancellation

The Client may cancel this contract at any time by providing a notice to the Service Provider via a support ticket. The cancellation notice must be received by the Service Provider at least 14 days before the desired cancellation date to allow for processing. In the event of cancellation by the Client, the Client acknowledges that no prorated refunds will be given for any unused portion of the WordPress Care Plan. The Service will continue to be provided through the end of the term in which the cancellation was made.

The Service Provider reserves the right to cancel this agreement at any time, for any reason, and without prior notification to the Client. In the event of cancellation by the Service Provider, the Service Provider will promptly notify the Client of the cancellation via email.

Upon cancellation, the Service Provider shall have no further obligation to provide the WordPress Care Plan services, and the Client's access to the Service Provider's systems and tools may be terminated. The Client remains responsible for any outstanding payments, fees, or charges incurred up to the date of cancellation. The Service Provider will provide the Client with instructions on how to transition the WordPress website maintenance and security responsibilities to the Client or another designated party upon cancellation.

The Client acknowledges that, in the event of cancellation, no refunds will be given for amounts previously paid for WordPress Care Plan services. The Client is responsible for all payments up to the date of cancellation.

In the event of a dispute regarding the cancellation of this Agreement, both parties agree to attempt to resolve the dispute through good-faith negotiations. If a resolution cannot be reached through negotiation, any disputes related to the cancellation shall be subject to the dispute resolution procedures outlined in Section 11 (Dispute Resolution) of this Agreement.

6. Privacy and Confidentiality

The Client and the Service Provider, herein collectively referred to as “the Parties,” acknowledge and agree that all forms of correspondence, including but not limited to emails, messages, documents, and any other written or electronic communication exchanged during the course of this Agreement, shall remain strictly private and confidential.

The Service Provider acknowledges that the Client may provide confidential information related to their business during the course of this Agreement. The Service Provider agrees not to disclose, share, or utilize this confidential information in any manner that would be detrimental to the Client's business interests without obtaining the Client's express written consent.

The Service Provider shall exercise all reasonable measures and precautions to safeguard confidential client information, including but not limited to account numbers, passwords, license keys, and any other sensitive data provided by the Client. Such information shall be stored securely and protected against unauthorized access or disclosure.

The Parties understand that certain legal or governmental requirements may necessitate the disclosure of confidential information. In such cases, the Party subject to such requirements shall promptly notify the other Party to allow the other Party to take appropriate steps to protect the information to the extent permitted by law.

Both Parties acknowledge that information shared between them, whether verbal, written or electronically transmitted, is proprietary and shall remain the property of the disclosing Party. Each Party agrees to treat all such proprietary information as confidential.

Confidential information shall not include information, technical data, or know-how that:

• Is in the possession of the receiving Party at the time of disclosure, as evidenced by the receiving Party's files and records immediately prior to the disclosure.
• Becomes part of the public knowledge or literature, not as a result of any action or inaction of the receiving Party or is approved for release by the disclosing Party.

The Service Provider shall not be precluded from using data and information regarding the Client, received during the performance of this Agreement, in materials published by the Service Provider. However, in such cases, the Client shall not be identified or identifiable as the source of the data without the Client's express consent.

The Client agrees to treat all information, records, computer files, and documents provided by the Service Provider as confidential. The Client shall handle and dispose of such materials in the same fashion as required of the Service Provider under this Agreement.

The obligations of confidentiality and privacy under this section shall continue beyond the termination or expiration of this Agreement and shall remain in force indefinitely.

The Parties recognize and agree that legal remedies may be sought to enforce the confidentiality obligations set forth in this Agreement, including injunctive relief and damages for any breaches.

The Parties shall take active measures to educate their employees, agents, or subcontractors who may have access to confidential information regarding the confidentiality obligations and the importance of safeguarding such information.

By agreeing to this Agreement, the Client and the Service Provider affirm their commitment to preserving the privacy and confidentiality of all information exchanged during the course of their business relationship. Both Parties acknowledge the legal significance of this commitment and understand the potential consequences of any breach thereof.

7. Confidential and Proprietary Information

Both the Service Provider and the Client acknowledge and agree that any information, data, materials, documents, records, intellectual property, or trade secrets disclosed to each other in connection with this Agreement, including but not limited to website source code, design elements, business strategies, financial information, and any other information not publicly available (collectively referred to as “Confidential Information”), is confidential and proprietary.

Both parties shall maintain the confidentiality of the Confidential Information received from the other party and shall not disclose, directly or indirectly, or use such information for any purpose other than the performance of services under this Agreement, unless otherwise expressly permitted in writing by the disclosing party.

Each party shall restrict access to the Confidential Information to its employees, agents, or subcontractors who have a legitimate need to know such information for the purpose of fulfilling their responsibilities under this Agreement and who are bound by similar confidentiality obligations.

Information that was already in the possession of the receiving party before its disclosure under this Agreement, as evidenced by the receiving party's records, is not considered Confidential Information. Information that becomes part of the public knowledge or literature, not as a result of any action or inaction of the receiving party, or is approved for release by the disclosing party, shall not be considered Confidential Information. If either party is required by legal process, government regulation, or action of government agencies to disclose any Confidential Information, that party may do so but shall promptly notify the other party to enable it to take appropriate measures to protect such information against disclosure.

The Service Provider shall not be precluded from using data and insights gained during the performance of this Agreement, which includes Confidential Information provided by the Client, in materials published by the Service Provider. However, the Client shall not be identified nor identifiable as the source of the data unless express consent is obtained from the Client.

The Client shall treat as confidential all information, records, computer files, and documents of the Service Provider, including but not limited to service methodologies, tools, and proprietary systems. The Client shall handle and dispose of such information in a secure and confidential manner as required of the Service Provider.

The Service Provider agrees to implement reasonable security measures to protect the Client's Confidential Information from unauthorized access, disclosure, alteration, or destruction. However, the Service Provider cannot guarantee absolute security and shall not be liable for security breaches that are beyond its control.

The obligations of confidentiality and nondisclosure contained in this section shall continue beyond the termination or expiration of this Agreement and shall remain in force indefinitely.

If required, the parties may enter into a separate Non-Use and Non-Disclosure Agreement (NDA) that provides additional terms and conditions regarding the protection of Confidential Information.

In the event of a breach of this confidentiality provision by either party, the non-breaching party shall be entitled to seek injunctive relief, damages, or any other legal remedies available under applicable law.

This Agreement does not grant either party any rights, title, or interest in the other party's Confidential Information, except for the limited purpose of performing the services under this Agreement.

By agreeing to this Agreement, both the Service Provider and the Client acknowledge their understanding of the importance of maintaining the confidentiality and proprietary nature of the information exchanged and agree to abide by the terms and conditions outlined in this Confidential and Proprietary Information section.

8. Independent Contractor

The Service Provider, Jonathan Moore, is an independent contractor and is not an employee, partner, or agent of the Client. The Client retains the Service Provider as an independent contractor to provide the services outlined in this Agreement.

This Agreement does not create an employment relationship between the Client and the Service Provider. The Service Provider shall not be entitled to any employee benefits, including but not limited to health insurance, retirement benefits, or paid time off.

The Service Provider does not have the authority to bind the Client to any agreements, contracts, or obligations with third parties. The Service Provider's actions and decisions are limited to the scope of the services provided under this Agreement.

The Service Provider has the right to control the manner and means by which the services are performed, including the tools, equipment, and methods used. The Client may provide guidelines and requirements for the services but does not have control over the Service Provider's day-to-day work.

The Service Provider is responsible for all taxes, including income taxes, self-employment taxes, and any other applicable taxes, related to the compensation received under this Agreement. The Client will not withhold any taxes or provide employee benefits.

The Service Provider is free to engage in other business activities and provide services to other clients while working under this Agreement. The Client acknowledges that the Service Provider may have other clients and commitments.

The Client is under no obligation to provide continuous work or assignments to the Service Provider. Work assignments are made at the discretion of the Client and may be subject to change or termination.

Either party may terminate this Agreement with written notice, as specified in the “Cancellation” section of this Agreement. Upon termination, the Service Provider will complete any outstanding work, and the Client will compensate the Service Provider for services rendered up to the termination date.

The Client agrees to indemnify and hold the Service Provider harmless from any claims, liabilities, or expenses arising from the Client's actions or instructions that result in legal or financial consequences for the Service Provider.

The Service Provider may provide similar services to other clients and is not restricted from entering into similar agreements with other parties.

The Service Provider shall not engage in any activities or relationships that create a conflict of interest with the Client. Any potential conflicts shall be disclosed promptly to the Client.

This independent contractor relationship is established to ensure that the Service Provider operates autonomously and independently while providing services to the Client. It emphasizes that the Service Provider is not an employee of the Client and retains control over the methods and execution of the services.

9. Code of Fair Practice

The Service Provider warrants that all work assigned under this Agreement is original and has not been previously published, or if previously published, consent to use has been obtained on an unlimited basis. The Client acknowledges and agrees that they will use the work provided by the Service Provider in compliance with all applicable laws and regulations and that the Client's use of the work shall not infringe upon the intellectual property rights of any third party, including but not limited to copyrights, patents, and trademarks. The Service Provider shall make all reasonable efforts to ensure that the work does not contain any scandalous, libelous, or unlawful matter.

The Client expressly agrees to indemnify and hold the Service Provider harmless for any and all liabilities, damages, expenses, or losses incurred as a result of the Client's use of the work provided by the Service Provider if such use infringes on the rights of others. This includes, but is not limited to, any claims or legal actions arising from copyright infringement, patent violation, trademark disputes, or any other alleged intellectual property infringement.

The Client acknowledges that the Service Provider may use third-party materials in the performance of services under this Agreement. In such cases, the Service Provider will use materials that are either original or for which consent to use has been obtained on an unlimited basis. The Client agrees that any third-party materials provided to the Service Provider by the Client for incorporation into the work are free from any third-party claims or restrictions. The Client shall indemnify and hold the Service Provider harmless for any third-party claims related to the use of such third-party materials.

The Service Provider makes no warranty with respect to third-party rights in any materials furnished to the Service Provider by the Client or in any third-party materials used in the work provided by the Service Provider. The Client acknowledges that the Service Provider does not control or guarantee the rights to third-party materials and shall not hold the Service Provider liable for any issues related to third-party rights.

The Client agrees that their exclusive remedy in case of any claim, action, or dispute arising from the use of the work provided by the Service Provider shall be limited to the provisions contained in this Agreement. The Client acknowledges that the Service Provider shall not be liable for any special, indirect, consequential, or incidental losses or damages of any kind, including but not limited to lost profits, lost records or data, lost savings, or increased expenses, even if the possibility of such damages has been communicated to the Client. The Client further acknowledges that the Service Provider's liability, regardless of the form of action, shall not exceed the total amount paid for services under this Agreement, except in cases of injury to persons or damage to tangible property resulting from the negligence or willful misconduct of the Service Provider.

The Service Provider shall not be precluded from using data or information regarding the Client's project received during the performance of this engagement in materials published by the Service Provider, provided that the Client is not identified or identifiable as the source of the data or information.

By agreeing to this Agreement, the Client confirms their understanding and acceptance of the principles outlined in the “Code of Fair Practice” and their commitment to adhere to these principles throughout the duration of this Agreement.

10. Warranty and Limitation of Liability

The Client represents and warrants that any materials, content, or information provided to the Service Provider under this Agreement will not infringe upon or conflict with any intellectual property rights of third parties, including but not limited to copyrights, patents, and trademarks. The Client further warrants that they have the legal authority and rights to use, modify, or provide access to any such materials, content, or information.

The Service Provider warrants that all services rendered under this Agreement will be performed in a professional and workmanlike manner, consistent with industry standards. Furthermore, the Service Provider warrants that any deliverables and work products created for and provided to the Client will not violate or conflict with any U.S. intellectual property rights of any third parties, including but not limited to copyrights, patents, and trademarks.

The Client acknowledges that the Service Provider cannot guarantee that the website will be error-free or completely free from vulnerabilities. While the Service Provider takes diligent measures to maintain the website's security and functionality, certain factors, including but not limited to the evolving nature of technology and software, may result in unforeseen issues or vulnerabilities. Therefore, the Client understands and agrees that:

The Service Provider shall not be held liable for any special, indirect, consequential, or incidental losses or damages of any kind or nature whatsoever, including but not limited to lost profits, lost records or data, lost savings, loss of use of facilities or equipment, loss due to facility shutdown or non-operation, or other costs, charges, penalties, or liquidated damages, regardless of whether arising from breach of contract, warranty, tort, strict liability, or otherwise. This limitation of liability applies even if the Service Provider has been advised of the possibility of such losses or damages or if such losses or damages could have been reasonably foreseen.

The Service Provider cannot accept liability for losses caused by the unavailability, malfunction, or interruption of the Client's website. While the Service Provider strives to ensure the website's security and performance, external factors beyond the Service Provider's control may impact the website's operation.

Except as expressly provided in this Agreement, neither party makes any express or implied representations or warranties, including but not limited to implied warranties of merchantability and fitness for a particular purpose.

The Client acknowledges that the Service Provider may use third-party plugins, themes, or services in connection with the website. The Service Provider shall not be responsible for any third-party rights associated with such materials or services, and any issues or disputes arising from the use of third-party materials shall be addressed directly with the respective third-party providers.

No action, regardless of form, arising under this Agreement may be brought more than one year after the cause of action has arisen, except that an action for nonpayment may be brought within one year after the date of the most recent payment.

The Client agrees to indemnify and hold the Service Provider harmless against any claims, damages, losses, or liabilities, including attorney's fees and legal costs, arising from or related to the Client's breach of the warranties and representations set forth in this Agreement or any unauthorized use or misuse of materials provided by the Client.

Notwithstanding the limitations of liability set forth in this section, the parties agree that the Service Provider's liability shall not be so limited with respect to injuries to persons or damage to tangible property arising out of the negligence or willful misconduct of the Service Provider or its subcontractors.

By agreeing to this Agreement, the Client acknowledges that they have read and understood the terms of this Warranty and Limitation of Liability section and agree to the allocation of risk and limitation of liability as set forth herein.

11. Dispute Resolution

In the event of any dispute, claim, or controversy arising out of or relating to this Agreement or the services provided herein, the Client and the Service Provider agree to first make a good faith effort to resolve the dispute through negotiations and discussions. Both parties shall promptly communicate their concerns, and, if necessary, schedule a meeting or exchange correspondence to reach an amicable resolution.

If negotiation and informal discussions do not lead to a resolution within 60 days after the dispute arises, both parties agree to engage in non-binding mediation. Mediation shall be conducted by a mutually agreed-upon mediator or, if an agreement cannot be reached, by a mediator appointed by a recognized mediation authority.

If mediation does not result in a resolution, both parties agree to submit the dispute to binding arbitration. Arbitration shall be conducted in accordance with the rules and procedures of the American Arbitration Association (AAA) or another recognized arbitration organization mutually selected by both parties. The arbitrator's decision shall be final and binding, and the parties shall be bound by the arbitrator's award.

Arbitration proceedings shall take place in West Virginia unless both parties mutually agree to an alternative location. The costs of arbitration, including the arbitrator's fees, shall be shared equally between the Client and the Service Provider unless the arbitrator determines a different allocation of costs based on the circumstances of the dispute.

Notwithstanding the above, either party may bring an action in a court of competent jurisdiction to seek injunctive relief or other equitable remedies to enforce any provision of this Agreement or to prevent the infringement of intellectual property rights. The prevailing party in any such legal action shall be entitled to recover its reasonable attorney's fees and court costs.

All actions, whether initiated by the Client or the Service Provider, will be filed in the state or federal court located within the state of West Virginia. This Agreement is governed by and construed in accordance with the laws of the state of West Virginia, without regard to its conflict of law principles.

Both parties waive any right to bring a dispute as a class action, private attorney general, or in any other form involving multiple claimants, whether in arbitration or in court.

Any action, regardless of form, arising under this Agreement must be brought within one year after the cause of action accrues. An action for nonpayment may be brought within one year after the date of the most recent payment.

All proceedings related to dispute resolution, including negotiations, mediation, and arbitration, shall be kept confidential by both parties, their representatives, and the arbitrator(s). The confidentiality provisions of this section shall survive the resolution of the dispute.

By agreeing to this Agreement, the Client and the Service Provider acknowledge their understanding and agreement to the dispute resolution procedures outlined in this section. Both parties agree to participate in good faith and diligently adhere to the chosen method of dispute resolution.

12. Entire Agreement

This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and it supersedes all prior or contemporaneous agreements, understandings, representations, and discussions, whether written or oral, relating to the subject matter herein. The parties acknowledge that they have not relied on any representations or statements made by the other party or any third party unless expressly incorporated into this Agreement.

No amendment, modification, or change to this Agreement shall be valid unless it is in writing and signed by authorized representatives of both parties. This Agreement encompasses all aspects of the Client's engagement with the Service Provider and governs the terms and conditions under which services are provided.

Any subsequent discussions, negotiations, or communications between the parties that are not expressly incorporated into this Agreement shall have no legal effect and shall not modify or alter the rights and obligations of the parties as set forth herein.

The parties intend that this Agreement be the complete and exclusive statement of their understanding regarding the subject matter herein, and they expressly waive any provisions of law or principles of contract interpretation that might provide for the inclusion of additional terms or conditions in this Agreement based on any discussions, negotiations, or prior course of dealing between the parties.

By agreeing to this Agreement, the Client acknowledges that they have carefully reviewed the terms and conditions contained herein and fully understand the rights and responsibilities of both parties under this Agreement. The Client further acknowledges that they have had the opportunity to seek legal counsel to review and explain the terms of this Agreement if they so desired. The Client's execution of this Agreement affirms their acceptance of the terms in their entirety.

13. Acceptance of Terms

By placing an order for the WordPress Care Plan service and entering into this Agreement, the Client acknowledges and affirms that they have:

• Thoroughly read and reviewed the entire contents of this Agreement, including all terms, conditions, and obligations herein.
• Sought clarification and received satisfactory answers to any questions or concerns they may have had regarding the terms and conditions described in this Agreement.
• Obtained a clear understanding of the scope of services provided under the WordPress Care Plan, as well as the services excluded from the plan.
• Acknowledged that they are bound by the terms, obligations, and restrictions detailed in this Agreement as of the Effective Date stated herein.
• Consented to be legally and financially responsible for any fees, charges, or payments associated with the WordPress Care Plan service as outlined in this Agreement.
• Committed to fulfilling their responsibilities as outlined in Section 3 (Client Responsibilities) of this Agreement.
• Understood the cancellation policy as specified in Section 5 (Cancellation) and the limitation of liability as defined in Section 10 (Warranty and Limitation of Liability).
• Recognize that any disputes arising from this Agreement will be resolved as detailed in Section 11 (Dispute Resolution).

By agreeing to this Agreement, the Client acknowledges their acceptance of all the terms, conditions, and responsibilities stipulated in this Agreement. This acceptance affirms the Client's commitment to adhere to these terms throughout the duration of the WordPress Care Plan service.