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Website Maintenance Terms of Service

This Website Support & Maintenance Service Agreement ("Agreement"), effective the date of signup ("Effective Date") and/or first payment, is entered into by and between Block 81, LLC, an Oregon limited liability company ("Block 81" or "Studio") and you, your employees' and agents ("Client") and applies to the purchase of all monthly website support and maintenance services (hereinafter collectively referred to as "Maintenance") ordered by Client. The parties agree as follows:

  1. Website Maintenance Services. Block 81 shall provide Client with the following website support and maintenance services:
    1. A la carte work on website. Block 81 will provide work on Client website up to the total number of hours allotted in the selected Maintenance plan. A la carte work includes bug fixes, feature development, functionality enhancements, graphics creation for the website. Work on the website that requires going above the allotted hours will be billed at an hourly rate based on your selected plan. This work ("overage") will be invoiced separately.
    2. Website software updates. If applicable, Block 81 will review Client's content management system ("CMS") and installed modules, plugins, or add-ons ("plugins") every month to ensure they are up to date. This does not include custom plugins not developed by Block 81. Custom plugins may require additional coding work and will be discussed with Client before action is taken.
    3. Website monitoring. Block 81 will employ website uptime monitoring software to ensure Client's website is up and running. Should the Client's website go down for longer than a 5 minutes, Block 81 will take immediate action to resolve the issue as quickly as possible. Client understands there may be situations outside of Block 81's control such as network interruptions, hosting service interruptions or maintenance, or DNS issues or interruptions.
    4. Offsite backups. Run nightly via automated software, Block 81 will check the viability of the backups at least once a month. If Client's website host fails or crashes, upon Client request, Block 81 will deploy the website on the same or new server within the time allotted for the chosen Maintenance plan.
    5. Priority scheduling. As a Maintenance plan subscriber, Client will be given priority scheduling for any work within Block 81's service offerings.
    6. Unused time rollover. Unused time in Client's Maintenance subscription will rollover to the next month only. If that time is not used in that time period, it is exhausted and does not continue to rollover or accumulate. Rollover time/hours are used only after allotted time for the month is used.
  2. Website Work Not Included. Work not included with Maintenance:
    1. Full website redesign and/or re-coding. These require a separate agreement.
    2. Website marketing or on-going search engine optimization ("SEO").
  3. Scheduling, Timelines, Communication.
    1. Support requests must be sent via Block 81's project management portal ("ActiveCollab"), email, or, in case of site outage, via phone. All Maintenance correspondence will be documented via ActiveCollab even if requests are made by email or phone.
    2. Block 81 will respond to all support or maintenance requests from Client within 1 business day via ActiveCollab, with a confirmation that the request was received, and an estimated date of action and/or completion for each actionable item in the request.
    3. Block 81 will adhere to quoted dates for the deliverables in the support requests at all possible costs. In the event that the Block 81 has any issues in delivering on a quoted deadline, Client will be notified about the reason for any change. Client understands that estimated timelines for requested support tasks are only an approximate calculation of time anticipated to be incurred and that, although Block 81 will work to ensure that delivery of services is kept within the estimated timeline, it is impossible for Block 81 to know in advance the exact timeframe for services provided.
    4. Client understands that all work for monthly Maintenance tasks will be scheduled according to Block 81's workflow. Block 81 maintains sites for several Clients and as such, Maintenance work requests will be addressed in order of receipt, except in the case of a website being completely down, which constitutes an "emergency".
    5. Failure by Client to answer a question critical to the completion of a task within 3-5 business days may cause that task to be "bumped" and moved to the "end of the line" in Block 81's work queue. This could cause that task to roll over into the next month.
    6. All communication will be done during regular business hours, which are Monday through Friday from 9:00 AM to 5:00 PM Pacific except in the case of website emergency.
  4. Website Emergency. A website emergency is defined as a state where the Client's website:
    1. Is down or offline for an unknown reason beyond 10 minutes;
    2. Has e-commerce functionality that is not functioning;
    3. Has member registration functionality is not functioning.
  5. Authorization. Client hereby authorizes Block 81 to access their web hosting account and website files and database as needed and may include but is not limited to FTP, SFTP, or SSH access.
  6. Third Parties. Block 81 shall not be held liable for changes made to the Client's website(s) by other parties not included in this Agreement. Block 81 is not liable for Client's hosting company with regard to server downtime or software compatibility issues.
  7. Additional Services. Any revisions, additions, or redesign Client requests Block 81 to perform that is not specified in this Agreement shall be considered additional and may possibly require a separate agreement and payment. Block 81 shall advise Client on any requested work that falls within these bounds.
  8. Services; Fees; Overages; Billing Disputes.
    1. Maintenance is a subscription based service and requires a debit or credit card which will be automatically charged each month at the rate for the Maintenance plan Client has chosen. If automatic billing fails due to Client's credit card being declined for any reason, Block 81 will work with Client to address the issue and restore automatic billing. Block 81 reserves the right to suspend its services until automatic billing is restored. Block 81 does not accept checks or other billing or payment services for Maintenance services.
    2. Overage work will be invoiced separately via Block 81's invoicing system. Client may make payment on overage invoices by credit card, debit card, bank transfer (ACH), or check. Overage invoices are due fifteen (15) days from invoice date unless otherwise specified. Late payments will accrue compound interest of five percent (5%) per month on any unpaid balances (including previously accrued late fees) from the date due until paid. Overages will be invoiced at the following hourly rates:
      1. Basic plan: $100 per hour
      2. Pro plan: $90 per hour
      3. Premium plan: $85 per hour
    3. Block 81 reserves the right to withhold Maintenance services and delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment.
    4. If Client disputes any amount invoiced, Client must give Block 81 written notice describing the dispute in reasonable detail prior to the date the invoice is due. Client may not dispute invoices after the invoice due date. Due to nature of the Block 81's service and the time involved, payments rendered are considered fully earned and non-refundable.
  9. Termination of Service.
    1. Termination by Client. Client may terminate Maintenance services on written notice to Block 81 (i) if Block 81 fails to cure a material breach of this agreement within fifteen (15) days of receiving written notice of the breach from Client; or (ii) for any other reason by paying all fees and approved expenses incurred prior to termination.
    2. Termination by Block 81. Block 81 may terminate Maintenance services on written notice to Client (i) if Client fails to cure a material breach of this agreement within fifteen (15) days of receiving written notice of the breach from Studio; or (ii) for any other reason as deemed by the Studio. Upon such termination, Client shall pay all and approved expenses incurred through the date of termination.
  10. Confidential Information. Each party (the "Discloser") may disclose Confidential Information to the other party (the "Recipient") in connection with this agreement. The Recipient agrees to (a) maintain the Confidential Information in confidence; (b) protect the Confidential Information with a reasonable degree of care, including employing industry standard security procedures to prevent unauthorized disclosure of Confidential Information; (c) not use the Confidential Information except in the performance of its obligations under this agreement; and (d) disclose the Confidential Information only to those of its employees and agents who have a need to know the Confidential Information and who are bound by agreement or law to maintain the confidentiality of the information.
  11. Promotional Rights. Block 81 may publicize depictions of the Deliverables, link to any online content containing the Deliverables, and describe its role in creating of the Deliverables. Block 81 may (i) publicize the fact that Client is Block 81's client; (ii) describe the nature of its work for the Client; and (iii) subject to any reasonable restrictions imposed by Client, utilize Client's trade name(s) and trademark(s) in connection with its publicity.
  12. Warranties.
    1. Mutual Warranties. Each party warrants that (i) it is authorized to enter into and perform this agreement; (ii) entering into and performing this agreement will not conflict with any other agreement to which the party is bound; and (iii) it will perform under this agreement in accordance with applicable law.
    2. Studio Warranties. Block 81 warrants that (i) it will perform its services in a professional manner and in accordance with industry standards; (ii) it will assign personnel who are reasonably experienced and qualified to perform its services; (iii) upon delivery and for a period of thirty (30) days thereafter, the Deliverables will materially conform to the Specifications; and (iv) to its knowledge, the Deliverables will not, if used by Client as contemplated by the SOW and in accordance with any Third-Party Licenses, infringe any third-party intellectual property rights.
    3. Client Warranties. Client warrants that, to its knowledge, the Client Materials will not, if used by Block 81 as contemplated by the SOW, infringe any third-party intellectual property rights.
    4. Disclaimer. Except as provided in this Section, each party's performance under this agreement is provided "AS IS" and without other warranty, including without limitation any warranties arising from the course of performance, course of dealing, or usage of trade.
  13. Indemnity & Limit on Liability.
    1. Indemnity. Subject to Section 10(c), Block 81 shall indemnify and defend Client and its employees, officers, directors, shareholders, members, and managers (collectively, the "Indemnitees") from any damages, expenses, fees, fines, penalties, expenses (including reasonable attorney's fees) and costs incurred by the Indemnitees in connection with any third party claim arising out of Block 81's breach of this agreement, negligence, or intentional wrongdoing (a "Claim"). As a condition to Studio's indemnification obligation, the Indemnitees shall give Studio prompt written notice of any Claim or potential Claim. In any defense, (i) Studio has the sole right to defend and settle the Claim using counsel of its choosing; and (ii) the Indemnitees shall reasonably cooperate with Block 81 in the defense and settlement of the Claim.
    2. Exclusions. Block 81 is not liable under Section 10(a) to the extent that Claims result from: (i) the negligent or willful acts of an Indemnitee; (ii) Block 81's compliance with the instructions of Client; or (iii) a claim that a Deliverable is infringing where the alleged infringement is due to modifications made by (or on behalf of) Client.
    3. Limit on Liability. Each party's maximum liability in any action relating to the subject of this agreement is limited to the total fees payable by Client pursuant to the SOW that is the subject of the dispute. This limitation does not apply to damages arising from a party's gross negligence or intentional wrongdoing, the Conversion Fee, or to attorney's fees and costs payable pursuant to Section 14(a). Neither party is liable for any claim for lost profits or similar damages, even if foreseeable and regardless of the form of action.
    4. If any third party files a claim in a competent court of law alleging that the Deliverables, Work Product, or any component thereof - other than Client Materials - infringe on the intellectual property rights of a third party (the "Allegedly Infringing Materials"), then Studio shall, at its option and sole cost and expense:
      1. procure for Client the right to continue to use the Allegedly Infringing Materials to the full extent contemplated by this Agreement; or
      2. modify or replace the Allegedly Infringing Materials and all of the components with non-infringing alternatives while providing fully equivalent features and functionality.
      3. If Block 81 is unable to do so, then Block 81 may direct Client to cease any use of the Allegedly Infringing Materials, provided that Block 81 shall refund to Client all amounts paid by Client with respect to the Allegedly Infringing Materials. Additionally, Block 81 will - at its sole cost and expense - secure the right for Client to continue using the Allegedly Infringing Materials for a transition period of up to twelve (12) months to allow Client to replace the affected features of the Allegedly Infringing Materials without disruption.
      4. The foregoing is in addition to, and not in lieu of, all other remedies that may be available to Client under this Agreement or otherwise, including but not limited to Client's right to be indemnified for pursuant to Section 11(a).
  14. Non-Solicitation. The parties shall not, while services are being performed by Block 81 and for one year after the last day on which services were provided, solicit, induce, or recruit, directly or indirectly, for itself or for any other party, the other party's employees. The parties agree that damages resulting from a breach of this Section 11 would be difficult to quantify, but that a reasonable estimate of such damages is 50% of the total compensation paid to the subject employee in the twelve months preceding the breach (the "Conversion Fee"). As liquidated damages for breach of this provision, the breaching party shall pay the Conversion Fee to the other party.
  15. Governing Law; Jurisdiction; Venue. Oregon law governs this agreement, exclusive of its conflict of laws principles. The state and federal courts of Multnomah County, Oregon are the exclusive venue for resolving any disputes under this agreement. The parties consent to the personal jurisdiction of such courts, and waive defenses concerning venue and convenience of forum.
  16. Notice. Any written notice may be provided by postal mail, courier delivery, or electronic mail. Studio will not accept written notice by facsimile, text message, or any other means. The effective date of notice will be the date that the U.S. Post Office, private courier, or recipient confirms the date on which the notice was received.
  17. Definitions. The following terms have the meanings given:
    1. "Studio Tools" means Block 81's intellectual property (including its designs, methods, software, and trade secrets) that either preexist this agreement or are developed by Studio other than in providing services for Client under this agreement. Studio Tools includes any improvements that are not uniquely applicable to the Deliverables.
    2. "Client Materials" means all documents, information, designs, data, specifications, graphics, logos, trademarks, written content, and other materials provided by or on behalf of Client to be used by Block 81 in connection with the preparation of or incorporated into the Deliverables.
    3. "Confidential Information" means information that, either, is identified as confidential upon disclosure, or that the Recipient should understand to be confidential under the circumstances; provided, Confidential Information does not include information that: (i) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by the Recipient; (ii) at the time of disclosure is, or thereafter becomes, available to the Recipient on a non- confidential basis from a third-party source, provided, such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient by any contractual obligation; (iii) was known by or in the possession of the Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of the Discloser pursuant to this agreement; or (iv) was or is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Discloser's Confidential Information.
    4. "Deliverables" means the final versions of the materials produced and delivered by Studio pursuant to this agreement. Deliverables may include the website, Client Materials, Studio Tools, Third-Party Materials, and Work Product.
    5. "Early Termination Fee" means an amount equal to 25% of the fees that would otherwise have been charged for the canceled portion of the project.
    6. "Specifications" are functional or technical specifications for work described in an SOW or that have been otherwise agreed to in writing by Client and Studio.
    7. "Third-Party Materials" means materials belonging to third parties that are incorporated into the Deliverables, including without limitation open source software, fonts, and stock images.
    8. "Work Product" means the materials first created by Studio for Client in the course of performing the services pursuant to this agreement.
  18. Miscellaneous.
    1. GDPR (General Data Protection Regulation). Client's engagement of Studio will not cause Block 81 to be treated as a "data processor" or "data controller" under GDPR. No personally identifiable customer or user data relating to EU citizens will be provided by Client to Block 81.
    2. Taxes. Block 81 shall pay all taxes on its income and employment taxes for its personnel. Client shall pay any sales, use and value added taxes.
    3. Insurance. While providing services, Block 81 shall maintain in effect policies of professional liability (errors and omissions) insurance with limits of at least $1,000,000 per occurrence. Upon written request, Block 81 will provide Client with proof of the insurance coverage required by this section.
    4. Relationship of the Parties. Block 81 is an independent contractor and not Client's partner. The parties are not engaged in a joint venture. Block 81 employees are not to be considered Client's employees for any purpose. Block 81 is solely responsible for the means and manner of performing the services.
    5. Attorney's Fees. The prevailing party in any dispute regarding the subject of this agreement is entitled to recover its reasonable attorney's fees, expert's fees, and costs.
    6. This Agreement. This agreement (including all SOWs) is the entire agreement of the parties with respect to its subject. All prior and contemporaneous agreements are superseded. This agreement may only be amended by a writing signed by both parties. If any term of this Agreement is determined to be unenforceable, the remainder of this Agreement will not be affected. This Agreement was negotiated by sophisticated parties and will not be construed in favor of or against either party.