These Master Terms & Conditions (“Terms”): (a) are incorporated into and are material terms and conditions of each service agreement, proposal, and statement of work (each, a “Service Agreement”) entered into by SiteCare, LLC, a Georgia limited liability company, doing business as SiteCare, Southern Web, Southern Web Group, WP Site Care (“we,” “us,” “our”), and its customer (“Customer” or “you”); and (b) apply to all services provided to Customer by SiteCare (collectively, the “Services”). Any capitalized terms not defined herein shall have the meaning ascribed in the applicable Service Agreement. In the event of any conflict between these Terms and a Service Agreement, the terms of the Service Agreement shall prevail. Some of these Terms, where specifically indicated, are only applicable to certain types of Services.
- SCOPE OF SERVICES
SiteCare shall perform the Services described in the applicable Quote (the “Services”) in accordance with the terms of such Service Agreement. Sometimes the scope of Services in a Service Agreement needs to change. In that case, the parties will negotiate concerning a change order in good faith. Unless otherwise agreed or specified in the applicable Service Agreement or the applicable change order, Customer shall have seven (7) days from receipt of a proposed change order to accept it. A new change order will be required if not accepted in that timeframe. No change order shall be binding upon either party unless accepted by Customer.
- TYPES OF SERVICES
SiteCare offers a number of different types of services, including website development, management of hosting of websites and applications, search engine optimization consultation, marketing consultation, lead generation consultation, pay-per-click marketing consultation, social media marketing consultation, analytics consultation, and copywriting.
- HOSTING MANAGEMENT
SiteCare acts as a liaison and manages the relationship between Customer’s website and a hosting company (such as Pagely, WP Engine, Amazon, or Rackspace, by example only). The Services are subject to both these Terms, SiteCare’s Acceptable Use Policy (the “AUP”, as amended from time to time, available at https://sitecare.com/legal/acceptable-use-policies/ and incorporated herein by reference), and the terms of the applicable hosting provider. Customer understands that bandwidth speed may vary, and that (unless explicitly provided otherwise in the applicable Service Agreement) SiteCare is not responsible for the networks or facilities of third parties which may be necessary to host a site.
- HOSTING SERVICE LEVEL AGREEMENT (SLA)
SiteCare, its service vendors, and subcontractors shall undertake commercially reasonable measures to protect Customer’s website(s) and email against unscheduled outages. However, unplanned service interruptions happen occasionally, and such interruptions shall not constitute a default by SiteCare under the Service Agreement. However, Customer may receive a credit allowance upon the terms and conditions set forth herein. A credit allowance equal to SiteCare’s then-current fee for one month of web hosting service will be given, upon Customer’s written request made within thirty (30) days of the service interruption, when there is an unplanned service interruption, as acknowledged by SiteCare or its vendors or subcontractors, that lasts more than thirty (30) minutes. Customer may only receive one credit allowance during any calendar month, even if multiple unplanned service interruptions should occur. Customer shall receive no credit allowance for any service interruption lasting thirty (30) minutes or less. No Credit Allowance will be issued for planned service interruptions scheduled by SiteCare or SiteCare’s hosting vendors. SiteCare’s grant of a credit allowance shall be the Customer’s sole and exclusive remedy for unplanned service interruptions and the associated failure of SiteCare or its vendors or subcontractors to provide shared web hosting services.
- THIRD-PARTY SERVICES
Customer acknowledges that SiteCare engages and incorporates the services of a number of third-party vendors (“Third-Party Vendors”) to provide additional services to the Customer in connection with website hosting. Customer acknowledges and agrees that the use of any services of Third Party Vendors is governed by the terms and conditions of such Third-Party Vendors. Customer further understands and acknowledges that if any Recurring Service with SiteCare is canceled, Customer may not be able to transfer third-party services without entering into a separate agreement with the Third-Party Vendor(s), and/or making significant changes to Customer’s website design to enable it to function properly.
- SERVICE FEES
The fees for Services shall be set forth in the applicable Service Agreement shall be billed and paid in United States (U.S.) Dollars.
- RECURRING CHARGES
Unless otherwise specified in the applicable Service Agreement: (a) Recurring charges are due on the invoice date; (b) fees for recurring charges are subject to change at any time in SiteCare’s sole discretion upon ten (10) days prior notice to Customer by email; (c) invoices shall be sent via email; (d) Customer shall have thirty (30) days in which to dispute any invoice, after which time the invoice shall be deemed correct.
- PAYMENT AUTHORIZATION
If Customer provides banking or credit card details in the SiteCare Billing website at https://billing.sitecare.com, Customer authorizes SiteCare to debit the account(s) provided for all amounts due to SiteCare. If SiteCare is unable, for any reason, to effect payment via Customer’s credit card, SiteCare will notify Customer via email, and Customer will have thirty (30) days to provide a payment method before Services are canceled.
- PAYMENT PROCESSING FEES
SiteCare shall assess a three percent (3%) surcharge on credit card transactions. Customer payments made by check or electronic funds transfer (ACH) shall not be subject to the surcharge.
- INSUFFICIENT FUNDS AND FAILED PAYMENTS
Customer shall pay a Returned Payment Fee in the amount of Thirty-Five Dollars ($35.00) for any check or EFT payment returned by the Customer’s banking institution. Customer may be required to pay for future services with certified funds.
Services may be refunded only if canceled within the refund period specified in the Service Agreement. Canceled accounts will no longer be eligible for a refund. Customers residing in the EU and UK shall have fourteen (14) days of Service Agreement acceptance to request a refund. Ad spend fees are non-refundable. Monthly subscriptions are non-refundable. For semiannual or annual recurring charges, Customer agrees to pay for the current month of Services, and SiteCare will issue a pro-rated refund to your original payment method for any remaining unused months.
Customer shall pay all applicable sales, use, gross receipts, excise, access, value-added, and other local, state, and federal taxes or charges imposed on the provision or use of the Services.
- LATE PAYMENTS
Payments not received within thirty (30) days of the invoice’s due date shall be considered late and will incur and accrue interest from the due date at the rate of one and one-half percent (1.5%) per month or the maximum legal rate, whichever is lower.
If additional equipment, including, but not limited to, monitors, computers, software, or other devices, is required by Customer to use the Services, Customer shall be solely responsible for acquiring and maintaining such equipment.
- RESALE OF SERVICE
Customer may not resell any portion of the Services to any other party without prior written permission from SiteCare, which may be granted or withheld at SiteCare’s sole discretion.
- RIGHTS TO WORK PRODUCT
“Work Product” means all original creations prepared by SiteCare for Customer in connection with the Services. Upon full and final payment for the Services rendered under a Service Agreement, SiteCare assigns to Customer all right, title, and interest in and to the Work Product produced for Customer under such Service Agreement.
“Elements” means (a) SiteCare’s technology and intellectual property existing as of the effective date of the applicable Service Agreement, including without limitation its web authoring tools, designs, algorithms, software (in source and object forms), user interface designs, architecture, scripts, objects, methods, practices, documentation, and any related intellectual property rights existing at or after the effective date, (b) any derivatives, improvements, enhancements or extensions of the foregoing, even if such derivation, improvement, enhancement or extension is made during the performance of the Services, and (c) new software tools of general application (as opposed to specific to the particular Work Product associated with such tools) created in connection with the Services. All rights, titles, and interests in the Elements shall remain the sole and exclusive property of SiteCare. Upon full and final payment for the Services rendered under a Service Agreement, SiteCare grants Customer a royalty-free, non-exclusive, irrevocable, perpetual worldwide license in and to the Elements provided under such Service Agreement, for use in connection with the Work Product developed thereunder.
- THIRD-PARTY MATERIALS
“Third-Party Materials” means any content, software, or other material owned by a third party, such as stock images, themes, and graphics. Such Third-Party Materials are subject to the applicable third-party terms and licenses and may only be used as permitted by such terms and licenses.
If Customer fails to comply with any material provision of a Service Agreement or these Terms, including, but not limited to, failure to make payment as specified, then SiteCare may elect to suspend all or any part of the Services upon notice to Customer, and to terminate the Service Agreement if the breach or default is not cured within thirty (30) days. Additional fees for reconnection of any disconnected services may be required.
- EARLY TERMINATION
SiteCare may terminate a Service Agreement and Services with thirty (30) days prior written notice to Customer. Customer may terminate any or all Recurring Services before the end of the term selected by Customer in the Service Agreement with thirty (30) days prior written notice to SiteCare. Upon the termination of the Service Agreement for any reason, SiteCare may (but is not required to) delete any of Customer’s archived data.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, WHETHER OR NOT FORESEEABLE AND REGARDLESS OF THE NATURE OF THE CLAIM. IN NO EVENT SHALL SITECARE’S AGGREGATE LIABILITY RELATING TO OR ARISING OUT OF THE SERVICES EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES.
- DISCLAIMER OF WARRANTIES
EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH HEREIN, SITECARE HEREBY DISCLAIMS ALL WARRANTIES OF EVERY NATURE, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SITECARE DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE SHALL BE ERROR-FREE OR WITHOUT INTERRUPTION. SITECARE MAKES NO WARRANTY AS TO THE TRANSMISSION OR SPEEDS OF ANY NETWORKS. SITECARE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND HEREBY EXPRESSLY DISCLAIMS ANY SUCH WARRANTY WITH REGARD TO ANY THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND THAT WORDPRESS THEMES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. SITECARE DOES NOT GUARANTEE THAT THEMES WILL WORK IN ALL BROWSERS. SITECARE DOES NOT GUARANTEE THAT ITS THEMES WILL BE FUNCTIONAL IN ALL VERSIONS OF WORDPRESS OR THAT THEY WILL BE COMPATIBLE WITH ANY THIRD-PARTY PLUGINS, SCRIPTS, OR APPLICATIONS.
- CUSTOMER REPRESENTATIONS
Customer represents and warrants to SiteCare that any written copy, graphics, photos, designs, video, data, audio files, music, specifications, software, trademarks, domains, or other materials furnished to SiteCare for use with or inclusion in any Work Product are either owned by Customer, or Customer has permission from the rightful owner to use the same.
Customer shall indemnify and hold SiteCare and its respective affiliates, subcontractors, employees, or agents harmless (including payment of reasonable attorney’s fees and other defense costs) from and against any claim, actions, or demands relating to or arising out of Customer’s use of the Services, including, without limitation (i) any content or software displayed, distributed or otherwise disseminated by the Customer, its employees, or users of the Services, (ii) any claim that Customer’s use of the Services, including the registration and maintenance of Customer’s selected domain name(s), infringes on the patent, copyright, trademark or other intellectual property rights of any third party; (iii) any malicious act or act in violation of any laws committed by Customer, its employees or users using the Services; and/or (iv) violation by Customer, its employees or authorized users of these Terms or the AUP.
The section headings used herein are for convenience of reference only and do not form a part of these Terms and Conditions, and no construction or inference shall be derived therefrom.
- FORCE MAJEURE
Neither party will be liable for or will be considered to be in breach of or default under these Terms or any Service Agreement on account of any delay or failure to perform as a result of any cause(s) or condition(s) that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected party will give prompt written notice to the other party and use commercially reasonable efforts to minimize the event’s impact.
- CHOICE OF LAW; EXCLUSIVE JURISDICTION AND VENUE; ATTORNEY’S FEES
This agreement shall be construed and enforced according to the laws of Georgia. Any action regarding the Service Agreement arising out of its terms and conditions shall be instituted and litigated in the State of Georgia or federal courts located in DeKalb County, Georgia, and in no other, and the parties submit to the exclusive jurisdiction and venue of such courts. The substantially prevailing party in any action to enforce or interpret any Service Agreement and/or these Terms shall be entitled to its reasonable attorney’s fees, expert’s fees, and costs.
- AGREEMENT BINDING ON SUCCESSORS
Customer may not assign any Service Agreement or the rights and obligations thereunder to any third party without the prior express written approval of SiteCare. SiteCare reserves the right to assign its rights hereunder to any party and to delegate its obligations hereunder to subcontractors. Subject to the foregoing, each Service Agreement and these Terms shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors, and permitted assigns.
The failure of either party to enforce at any time or for any period of time the terms of any Service Agreement and/or these Terms shall not be construed as a waiver of such terms or the right of such party thereafter to enforce such terms. Any waiver by either party must be in writing and signed by such party. No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of any Service Agreement or these Terms.
If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render such provision, term, or clause enforceable, or, if incapable of such modification, shall be severed from the applicable Service Agreement or these Terms, as applicable, and such invalidity shall not affect the validity or operation of any other term, clause or provision contained in the Service Agreement or these Terms.
- ENTIRE AGREEMENT
These Terms and the Service Agreements constitute the entire understanding of the parties, revoke and supersede all prior agreements between them, and are intended as a final expression of their agreement. No modification or amendment to these Terms or a Service Agreement shall be effective unless in writing, signed by both parties that expressly states an intent to modify or amend and refers to the Service Agreement and these Terms, as applicable.
Last Updated: January 27, 2023