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This Website Maintenance Agreement (the “Agreement“), dated and effective as of the Maintenance Product(s) purchase date (the “Effective Date“), is by and between Flamegrower, LLC, a Texas limited liability company with principal office located at 5100 Westheimer Road, Suite 278A, Houston, Texas 77056 (“Administrator“), and those persons or entities purchasing the product identified as the (“Customer“).
- Customer hereby engages Administrator, and Administrator accepts such engagement, to provide the Services, as described more fully in the Statement of Work, in accordance with this Agreement.
- Project Management. Each party shall, throughout the Term, designate a project manager to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding the Services hereunder. Each project manager is responsible for providing all day-to-day consents and approvals. Each party shall ensure its project manager has the requisite organizational authority, and necessary skill, experience, and qualifications, to perform in such capacity.
- Customer Changes. Customer may, at any time during the Term, request in writing changes to the Statement of Work and/or Maintenance of its Website. Changes requested must be in writing and signed and agreed upon by both parties (“Change Order”). Costs for any changes requiring additional work or services, as determined in the sole discretion of Administrator, shall be included in the Change Order. No changes will be effective unless and until memorialized in a written Change Order signed by both parties. Any and all properly executed Change Orders are subject to the terms of this Agreement and incorporated herein by reference.
- Administrator Obligations.
- Services and Deliverables. Administrator shall perform the Services to maintain Customer’s Website for Customer. Maintenance of the website includes backups, updates, and other work to keep the Website up to date and functioning.
- Subcontractors. Administrator shall, at its discretion, utilize any employees and contractors as it deems necessary to perform under this Agreement.
- Third-Party Materials and Open Source Components. If part of the Statement of Work, Administrator will secure all necessary rights, licenses, consents, and approvals necessary for Customer to use, as incorporated into or otherwise used in conjunction with the Website, perpetually and throughout the world, all Approved Third-Party Materials and Open Source Components. These shall be licensed and usable by Customer for so long as Customer uses Administrator to maintain the Website. If Administrator no longer maintains the Website, then any licenses and rights of Customer to use these Materials and Components immediately ends. Customer is then responsible to secure its own Third-Party Materials and Open Source Components for its Website.
- Maintenance Obligations.
- Administrator shall actively monitor the Website to optimize performance of the Website.
- If such monitoring identifies or Administrator otherwise becomes aware of any non-emergency circumstance that, if not remedied, is reasonably likely to cause a Service Error or malfunction of the Website, Administrator shall promptly notify Customer in writing of all measures and recommendations that are reasonably necessary to remedy such circumstance or otherwise prevent it from causing such Service Error or malfunction. Administrator shall then undertake and implement the measures and recommendations that are reasonably necessary to remedy such circumstance or otherwise prevent it from causing such Service Error or malfunction that have been approved by Customer in writing. If Customer does not timely approve measures or recommendations made by Administrator, Customer alone is solely responsible for any Service Error or malfunction of the Website.
- If such monitoring identifies, or Administrator otherwise becomes aware of, any emergency circumstance that, if not immediately remedied, is reasonably likely to cause a Service Error or malfunction of the Website, or discovers a Service Error or malfunction is already occurring, Administrator shall immediately notify Customer in writing of such Service Error or malfunction; and respond to and remedy such Service Error or malfunction in a commercially reasonable time as approved by Customer in writing. If Customer does not timely approve measures or recommendations made by Administrator, Customer alone is solely responsible for any Service Error or malfunction of the Website.
- Websites do not last forever. Circumstances may arise where a new website is required to avoid Service Error or malfunction (by way of example, when a website theme is no longer supported). If Administrator notifies Customer of the existence of such circumstances and recommends Customer build a new website, and Customer rejects such recommendation or does not timely approve such action, Customer alone is solely responsible for any Service Error or malfunction of the Website.
- Administrator shall maintain the Website to optimize performance of the Website. Such maintenance services shall include:
- Implementing all necessary updates, bug fixes, enhancements, new releases, new versions, and other improvements or repairs, so that the Website operates properly in accordance with this Agreement; and
- Remaining aware of advances in technologies related to or used in website hosting and platforms, including those related to security, and, implementing such changes as are reasonably necessary to ensure the Website’s continued interoperability and compatibility with new standard technologies and security and integrity, including with respect to the confidentiality, privacy, and integrity of all Website Content, User Information, and Usage Data according to the requirements and standards set forth in this Agreement,
- Administrator shall perform all maintenance on dates and times at Administrator’s discretion.
- Occasionally, some plugins and technology cease to function or exist, requiring discontinued use of such plugin or technology. In such circumstance Administrator may recommend an alternative to Customer. It is Customer’s responsibility to procure and pay for any needed licensing for such replacement. If Administrator notifies Customer of the existence of such circumstances and Customer rejects such recommendation or does not timely approve such action, Customer alone is solely responsible for any Service Error or malfunction of the Website.
- Customer may be required to procure and pay for license(s) for custom integrations, such as, by way of example, Learning Management Systems (LMS Systems), payment systems/checkout carts, shipping systems, etc. If Customer procures and pays for such licenses, Customer shall immediately notify Administrator. Customer shall grant Administrator any access requested by Administrator. Customer shall also grant Administrator a reasonable amount of time to get access to the integration, become familiar with the integration, contact and access support teams, and take all other action needed to evaluate whether the integration can be included in the Website’s maintenance. Any added integration may be the subject of a Change Order.
- Back-Ups. Administrator shall back-up the Website at the times and with the frequency Administrator deems in its discretion to be appropriate.
- Security and Data Breach. Administrator shall employ commercially reasonable security measures to work to ensure against unauthorized access to the Website, including all Website administrative functionality (including any administrative tools, applications, or facilities).
- Customer has the right and responsibility to add, modify, and delete Website Content. Any failure of Customer to timely or properly save changes will result in loss of changes and content. Likewise, lost content may only be restored when such content has been backed up. Customer is solely responsible for such losses and inability to restore content.
- Administrator shall have secure, password protected administrative access to the hosting environment to allow Administrator to transmit, upload, test, and implement updates, upgrades, enhancements, additions, and deletions of or to the Website.
- Administrator shall employ commercially reasonable measures to protect Customer’s Website from any unauthorized acts, occurrences, or conditions, including unauthorized access, use, alteration, or disruption.
- Customer Obligations.
- Customer will be responsible for, on a timely basis in accordance with the Statement of Work:
- Promptly and timely participating in meetings scheduled and making its personnel readily available for such meetings; and
- Promptly and timely providing all consents, approvals, and exception notices.
- Effect of Customer Delays. If Customer fails to perform any of its obligations on a prompt and timely basis, its Website’s performance may suffer as a result, and Customer alone is solely responsible for any Service Error or malfunction of the Website.
- Customer shall not use its Website for illegal or illegitimate purposes, to promote terrorism or government overthrow, to spread misinformation, or any other purpose contrary to legitimate business and personal Website use. Customer shall not post pornography, defamatory content, violent or gory content, or other content objectionable to Administrator. Administrator reserves the right to terminate this Agreement immediately if Customer’s Website contains content objectionable to Administrator or is violative of this provision.
- Customer shall notify Administrator of any planned, intended, or actual changes in the Website that will scale the number of hits or visitors to the Website. If the Website becomes a membership site, Learning site, video hosting site, or otherwise requires an increase the resources to maintain the Website, Administrator shall have the right to modify costs and present Customer with a Change Order for the additional work and resources required to maintain the Website.
- Compensation.
- Fees. In consideration of the Services and Deliverables provided and rights granted by Administrator under this Agreement and the Statement of Work, Customer shall pay Administrator properly invoiced fees as set forth in the Statement of Work. The Fees and rates stated in the Statement of Work are firm and shall not be modified during the Term of this Agreement.
- Payment. Customer shall pay all Fees immediately or as requested by the Administrator or as set forth in the Scope of Work. Customer shall not withhold any amount from payment. All fees set forth herein are inclusive of any applicable taxes. Administrator shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
- Intellectual Property Rights.
- Website. Customer is and will be the sole and exclusive owner of all right, title, and interest in and to the Website, including all Intellectual Property Rights therein, with an exception for Third-Party Materials and Open Source Components which Administrator shall own and allow Customer to use on a limited basis as set out herein.
- Customer Materials. Customer shall, and will remain, the sole and exclusive owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein. Administrator has no right or license to use any Customer Materials except solely during the Term of the Agreement to the extent necessary to provide the Services to Customer. All other rights in and to the Customer Materials are expressly reserved by Customer and its licensors.
- Third-Party Materials. All right, title, and interest in and to Approved Third-Party Materials will remain with the respective owners thereof, subject to any limited express licenses or sublicenses granted to Customer by Administrator pursuant to or in accordance with this Agreement.
- Open Source Components. All right, title, and interest in and to any Open Source Components will remain with the respective owners thereof, subject to Customer’s rights under the applicable Open Source Licenses and this Agreement.
- Licenses.
- Third-Party Materials Licenses. Administrator shall grant to Customer a limited, non-exclusive license to use Administrator’s Approved Third-Party Materials on the Website. This limited, non-exclusive license shall be valid and effective for only as long as Customer utilizes Administrator to maintain the Website. If at any time Customer does not use Administrator to maintain the Website, then any and all Third-Party Materials Licenses granted to Customer by Administrator shall immediately be rescinded, revoked, and of no further force or effect.
- Open Source Licenses. Administrator shall grant to Customer a limited, non-exclusive license to use Administrator’s Approved Open Source Materials on the Website. This limited, non-exclusive license shall be valid and effective for only as long as Customer utilizes Administrator to maintain the Website. If at any time Customer does not use Administrator to maintain the Website, then any and all Approved Open Source Materials Licenses granted to Customer by Administrator shall immediately be rescinded, revoked, and of no further force or effect.
- Term and Termination.
- Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until delivery of the Website by Administrator to Customer and termination of maintenance of the Website by Customer, with no less than 30 days written notice to Administrator.
- Termination.
- Customer may terminate this Agreement without cause at any time by providing at least thirty (30) days’ prior written notice to Administrator. Any fees and amounts owed to Administrator shall be paid by Customer in full within ten (10) days’ of notice of termination. Any delay in payment shall extend the notice period one day for each day’s delay.
- Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ten (10) days after the non-breaching party provides the breaching party with written notice of such breach.
- Either party may terminate this Agreement, effective upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Expiration or Termination.
- Upon any expiration or termination of this Agreement:
- All Third-Party Materials licenses granted by Administrator to Customer shall expire or terminate; and
- All Open Source Materials licenses granted by Administrator to Customer shall expire or terminate; and
- Administrator and Customer shall each return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party’s Confidential Information; and permanently erase any of the other party’s Confidential Information from its computer systems.
- The provisions set forth in this Agreement, and any other right or obligation of the parties in this Agreement, survive any expiration or termination of this Agreement:
- Representations and Warranties.
- Mutual Representations and Warranties. Each party represents and warrants to the other party that:
- it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;
- it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;
- the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and
- when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
- Additional Administrator Warranties. Administrator warrants to Customer that:
- it will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement;
- in performing the Services hereunder, Administrator will comply with all Laws.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ADMINISTRATOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT.
- Indemnification.
- Indemnification. Customer shall indemnify, defend, and hold Administrator and Administrator’s officers, directors, employees, agents, successors, and assigns harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance Administrators, arising out of or resulting from any claim, suit, action, or proceeding arising from, stemming from, or in any way related to the content on and use of the Website, including but not limited to Customer’s use of the Website and any images, text, content, third-party materials, open source materials, and any and all other use or content on the Website other than in accordance with this Agreement and the licenses and permissions granted by Administrator to Customer; any changes, alterations, modifications, or use of the Website and its content by Customer or anyone other than Administrator; and Customer’s use of any content, images, materials, third-party materials, or open source materials.
- Infringement Remedy. If the Website, or any component thereof other than Customer Materials, is found to be infringing or if any use of the Website or any component thereof is enjoined, threatened to be enjoined, or otherwise the subject of an infringement claim, Administrator shall, at its option and sole cost and expense: (a) disable the Website or any content alleged to be part of an infringement claim; (b) procure for Customer the right to continue to use the Website or component thereof to the full extent contemplated by this Agreement; or (c) modify or replace the materials that infringe or are alleged to infringe to make the Website and all of its components non-infringing while providing fully equivalent features and functionality. If neither of the foregoing is possible notwithstanding Administrator’s commercially reasonable efforts then Administrator may direct Customer to cease any use of any materials that have been enjoined or finally adjudicated as infringing.
- Limitations of Liability.
- EXCLUSION OF INDIRECT DAMAGES. IN NO EVENT WILL ADMINISTRATOR BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
- CAP ON MONETARY LIABILITY. IN NO EVENT WILL ADMINISTRATOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO ADMINISTRATOR PURSUANT TO THIS AGREEMENT.
- Confidentiality.
- Obligation of Confidentiality. Each party acknowledges that in connection with this Agreement each party will gain access to Confidential Information of the other party. As a condition to being furnished with access to Confidential Information, each party shall, during the Term and for two (2) years thereafter:
- not access or use Confidential Information other than as strictly necessary to perform its obligations under and in accordance with this Agreement;
- not to use any Confidential Information, directly or indirectly, in any manner to the detriment of the disclosing party or to obtain any competitive benefit with respect to the disclosing party;
- maintain all Confidential Information in strict confidence and, except as may be permitted to disclose or permit access to Confidential Information to its employees and contractors who: (i) need to know such Confidential Information for purposes of the non-disclosing party’s performance of its obligations under and in accordance with this Agreement; and (ii) have been informed of the confidential nature of the Confidential Information and the non-disclosing party’s obligations under this Agreement;
- safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and
- ensure its employees’ and contractors’ compliance with this section and will be liable for any of its employees’ or contractors’ noncompliance this section.
- Compelled Disclosures. If either party is compelled by applicable Law to disclose any Confidential Information (the “Compelled Party”) then, to the extent permitted by applicable Law, the Compelled Party shall: (a) promptly, and prior to such disclosure, notify the other party of such requirement so that the other party can seek a protective order or other appropriate remedy or waive its rights under this section; and (b) provide reasonable assistance to the other party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the other party waives compliance or, after providing the notice and assistance required under this section the Compelled Party remains required by Law to disclose any Confidential Information, the Compelled Party shall disclose only that portion of the Confidential Information that on the advice of the Compelled Party’s legal counsel, the Compelled Party is legally required to disclose and shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
- Force Majeure.
- Administrator will not be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any acts of God, , pandemic or widespread disease or infection, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes, or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns, or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition, or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation facilities.
- Miscellaneous.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of the other party.
- Notices. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing and delivered to the other party via email or electronic delivery at the e-mail address provided by each party to the other party. Notices will be deemed effectively given when sent via email or electronic delivery.
- Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Entire Agreement. This Agreement, together with the Statement of Work and any properly executed Change Orders, constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter.
- Assignment. Administrator may assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement. This Agreement is binding upon and inure to the benefit of Administrator’s successors and assigns. Customer shall not assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
- Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal Laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of Laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the state district courts of Harris County, Texas and the federal district courts of the United States District Courts of the Southern District of Texas, Houston Division, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Each party affirms that venue in these courts is convenient and not a burden.
- Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
- Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of [or related to] this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
- Binding Arbitration. Should any dispute arise between us, we mutually agree that such dispute(s) shall be submitted to binding arbitration. Any such arbitration shall be held in Harris County, Texas, and no legal proceedings may be instituted except to enforce the award of the arbitrator, to preserve the jurisdiction of any court with existing jurisdiction of any of the parties, whether related or not to this Agreement, or to seek any injunctive relief under this Agreement. Unless the parties can mutually agree on an arbitrator, each party shall select one arbitrator and the two selected arbitrators shall select a third person who shall arbitrate the claims and disputes. If one party fails to designate an arbitrator within ten days from the date on the written demand to arbitrate, the arbitrator selected by the other party shall solely arbitrate the case. The arbitrator shall notify all parties and set a date, time, and place for the arbitration hearing. The arbitrator’s decision shall be based on evidence submitted and governed by the Texas Rules of Civil Procedure, Texas Rules of Evidence, and Texas and Federal statutory and case law. The decisions shall be based on a preponderance of the evidence. Notification of the details of the hearing shall be mailed to the addresses of the parties as provided to the arbitrator. The notice shall be postage prepaid and deemed received within five days from deposit with the United States Postal Service. No hearing shall be had sooner than fifteen days from date of mailing of the notice. The arbitration fees shall be deemed costs of court and paid as provided in the Texas Rules of Civil Procedure. If any party employs attorneys to represent him/her/it in the arbitration, the arbitrator shall be authorized to award reasonable attorney’s fees incurred in seeking to resolve the dispute(s), prosecuting the arbitration, for all arbitration proceedings and final hearing, all action necessary to reduce the arbitrator’s findings to an award, all action taken to confirm the award and secure a judgment confirming the award from any Court of competent jurisdiction, and for any appeal of the award or Court’s judgment. On the date of the arbitration hearing, the arbitrator shall proceed to hear the dispute or claim, whether or not all parties to the arbitration appear, and on conclusion of the facts and evidence presented make an award. The award shall be final and binding on the parties. The arbitrator shall award reasonable attorney’s fees to the prevailing party in such proceeding. You hereby acknowledge that you are aware of the fact that by agreeing to arbitrate, you waive any right you have to a court or jury trial.
- This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this agreement.