MARKETING & MAINTENANCE TERMS & CONDITIONS

Effective date: August 1, 2022

This SERVICES AGREEMENT (including all appendices, exhibits and schedules attached hereto) (the “Agreement”) IS HEREBY MADE as of (“Effective Date”), by and between AMW MARKETING & DESIGN (“AMW”), a limited liability company, organized under the laws of the state of Maryland, located at 420 Northwest Drive, Silver Spring, MD 20901 and CLIENT (identified in Section 1 below) according to the following terms, conditions and provisions (AMW and Client may individual be referred to as a “Party,” collectively, the “Parties”):

NOW, THEREFORE, for valuable consideration given and received, the receipt and sufficiency of which are hereby acknowledged, the parties intending to be legally bound, do agree as follows:

I. CLIENT Identity, Term, Scope

1. Identity of CLIENT. The CLIENT is identified as the individual or entity whose name, principal business address and other relevant information are set forth in their SamCart membership profile.

2. PERIOD OF PERFORMANCE. The Period of Performance for this Agreement shall begin on the date of purchase and shall continue through every month, unless otherwise agreed by the Parties in writing.

3. REPRESENTATIVES.  The project manager and technical representative for AMW is Adrian White at email address adrian@brandwithamw.com and the street address set forth in the opening paragraph of this Agreement. The representatives detailed herein are the primary persons with whom each party will communicate regarding the respective matters pertaining to this Agreement.

Any notices, reports, authorizations, or approvals concerning the technical details and performance or approval of work and deliverables under this Agreement shall be provided to the representatives in writing.  All correspondence and notices, waivers, authorizations or approvals having to do with legal matters or contract terms and conditions shall be in writing and shall be sent to the representatives.

4. SERVICES TO BE PERFORMED. AMW hereby agrees to perform the Website Maintenance services generally described in the attached Exhibit A Description of Services (hereinafter referred to as “Services”), incorporated by this reference hereto.  Any changes to Exhibit A, including changes to the Services, schedule, or deliverables, shall be mutually agreed upon and in writing.  Unless otherwise agreed by the Parties in writing, the Services will be performed by AMW, or by the employees or contractors of AMW as specified the Statement of Work attached as Exhibit A and incorporated by this reference.

5. REVISIONS. AMW shall only be responsible for revisions to the Work Product delivered hereunder as described in the Description of Services attached hereto and incorporated by Reference. AMW shall not be responsible for additional revisions and or amendments to the Work Product produced hereunder, without equitable adjustment to the contract Price.

6. CLIENT APPROVAL. Written approval will be given by the client for each web maintenance request sent before the designer closes out a ticket/request.

II. Fees, Expenses

7. CONTRACT TYPE. This is a Labor Hours Contract. Fees for Services performed hereunder are incurred on an hourly basis.
8. TERMS OF PAYMENT. Unless as otherwise specified, AMW shall be compensated for the Website Maintenance Services at the rate of Forty-nine dollars ($49.00) per hour. Unless otherwise agreed by the Parties in writing, AMW shall provide the Services included in the Statement of Work attached as Exhibit A and incorporated by this reference only. Additional changes the Services described herein will incur additional costs and require equitable adjustment to this Agreement accordingly.
        
9. PERSONNEL, EQUIPMENT, MATERIALS, OR SUPPLIES. AMW represents that it has, or will secure at its own expense, all insurance, qualified personnel, materials, equipment, or other items required to perform the Services under this Agreement.

III.       Relationship

10. INDEPENDENT CONTRACTOR RELATIONSHIP. This Agreement does not establish an employer / employee relationship between AMW and CLIENT.  Nothing in this Agreement shall constitute establishment of a partnership, joint venture, or agency relationship.  AMW shall not represent itself as an employee of CLIENT nor enter into contracts purporting to obligate CLIENT.
11. COMPLIANCE WITH LAWS. AMW represents and warrants that AMW has complied and will continue to comply with all local, state, and federal laws or requirements.
12. NO-EXCLUSIVITY. The Parties understand and agree this Agreement does not establish an exclusive relationship of any kind between AMW and CLIENT. AMW has provided and will continue to provide the Services contemplated hereunder to a wide range of clients, some of whom may be competitors of CLIENT.IV. Obligations
13. OWNERSHIP. All rights, title, and interest in and to all work and work product created hereunder shall be owned by CLIENT, including copyrights, patents, trade secrets, trademarks, and service marks in the WORKS and DOCUMENTS created and paid for under this Agreement. WORKS shall mean all inventions, improvements, discoveries (whether or not patentable), databases, computer programs, reports, notes, studies, photographs, negatives, designs, drawings, specifications, materials, tapes, and disks conceived, reduced to practice, created or originated by AMW for CLIENT in performance of this Agreement. WORKS shall include all DOCUMENTS.

DOCUMENTS are the originals of any databases, computer programs, reports, notes, studies, photographs, negatives, designs, drawings, specifications, materials, tapes, disks, or other materials, whether in tangible or electronic forms, prepared by AMW for CLIENT in the performance of this Agreement. The DOCUMENTS shall be the exclusive property of CLIENT and all such DOCUMENTS shall be remitted to CLIENT by AMW upon completion or cancellation of this Agreement.  To the extent possible, those WORKS eligible for copyright protection under the United States Copyright Act shall be deemed to be works made for hire.

AMW agrees to, and hereby does, assign all right, title, and interest it may have in the WORKS and the DOCUMENTS to CLIENT.  AMW shall, at the request of CLIENT, execute all papers and perform all other acts necessary to transfer or record CLIENTS’ ownership interest in the WORKS and DOCUMENTS. AMW’s right to reproduction of Work Product includes (without limitation) promotional and advertising rights and/or reprints connected with the Work Product.  CLIENT agrees to and does hereby grant a nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up worldwide license to AMW for noncommercial use of the WORKS and DOCUMENTS created hereunder.

14. DESIGNER TOOLS. Notwithstanding the foregoing, AMW shall retain all rights, title, and interest in and to background technology, or any other know-how developed by AMW hereunder. AMW does hereby grant a nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up worldwide license to CLIENT for the use of Designer Tools included in Work Product developed hereunder.

15. CLIENT CONTENT. Any intellectual property of CLIENT furnished to AMW in furtherance of the Services performed hereunder, including, text, images, trademarks, and copyrights, shall maintain the sole property of CLIENT. AMW shall in no way assume responsibility or liability for CLIENT intellectual Property or any intellectual property infringement arising out of the use of CLIENT content contained in the Work Product produced hereunder.

16. CLIENT RESPONSIBILITY. Any and all assets that CLIENT is to supply for the Project shall be delivered to AMW on or by the agreed upon date and time, in electronic format (delivered on removable storage media or transmitted via the internet), and such supplied assets shall be in final form and ready for Project use. CLIENT shall proofread and edit such assets prior to delivery to AMW, and any additional work due to corrections of such assets, file conversions, or scanning of text or images shall be billed additionally to the fee specified in the Contract Overview. AMW agrees that any asset supplied by CLIENT, whether for the Project of in relation to the business purposes for its development, shall be treated as confidential and neither disclosed to third parties nor used in any way other than for the development of the Project. At the completion of work, AMW shall return CLIENT’s assets.

17. AMW shall be given first opportunity to make any revisions and or amendments to the Work Product produced hereunder as requested by the Client. If the revisions are not due to any fault on the part of AMW, additional revision fees shall be paid to AMW at the rate of One Hundred Twenty-five dollars ($125.00 USD) per hour for all revisions after Marketing & Maintenance cancellation.

18. RESERVATION OF RIGHTS. All rights, title, and interests in and to Work Product created hereunder not expressly granted, shall be reserved to the Designer.

19. AUTHORSHIP. Authorship credit in the name of AMW shall appear on Work Product produced hereunder as follows: Designed by AMW Marketing & Design.

20. MEDIA AND PUBLICITY. The Parties understand and agree that public actions and statements in connection with this Agreement, if any, including publications, interviews, representations and public appearances may be associated with AMW and CLIENT. Accordingly, CLIENT does hereby agree to allow AMW to make public statements and take public actions consistent with and relevant to the Services performed hereunder for the promotion of AMW’s business interest without further approval or consent of CLIENT. AMW shall maintain the applicable confidentiality provisions of this Agreement in furtherance of media and publicity actions taking pursuant to this Section 14.

21. DATA PROTECTION AND PRIVACY. In performance of this Agreement, AMW will comply with laws applicable to it with respect to data protection and privacy, including in the collection, use, maintenance, transfer, and processing of records and personal information. In the event that activities pertaining to data collection, transfer, use, or maintenance are performed under this contract, AMW shall meet the current industry standards.

22. DELIVERABLES. CLIENT will obtain, at its own expense, all necessary licenses, approvals, and/or permissions to any content furnished to AMW required for or included in any deliverable made pursuant to this Agreement.  Such licenses, approvals, and/or permission shall be sufficient to allow CLIENT free and unrestricted use to all content included in such deliverables.  To the extent necessary to perform the Services, AMW shall obtain, at its own expense, any necessary licenses, approvals and/or permissions to any third- party content included in any deliverables made pursuant to this Agreement.  AMW shall supply CLIENT with such applicable licenses, approvals, and permissions.

23. CONFIDENTIALITY. During the course of this Agreement, the Parties may be given access to certain proprietary or other confidential information or materials of the other Party.  The Parties shall assume that any information provided to the other Party, whether tangible or intangible, in any format, is confidential unless otherwise designated.  The Parties each agree during the term of this Agreement and thereafter (i) not to disclose or otherwise reveal, without the other Party’s prior written consent, any portion of that Party’s confidential information, to any person or entity; (ii) not to use the other Party’s’ confidential information for any purpose other than for the purposes contemplated by this Agreement; (iii) to protect such confidential or proprietary information with the same degree of care that it regularly employs to safeguard its own proprietary information of like importance from unauthorized use or disclosure to parties not having a need-to-know, and in no event exercise less than a reasonable standard of care; and (iv) upon discovery of any inadvertent disclosure or unauthorized use of other Party’s confidential information, to promptly use reasonable efforts to prevent any further inadvertent disclosure or unauthorized use thereof and notify the other Party immediately.  Upon request of the other Party or upon termination of this Agreement, the other Party shall, at the owning Party’s option, return or destroy all proprietary or confidential material.  All rights, title to, and interest in such confidential information shall remain with the owning Party.

24. CONFIDENTIALITY – JUDICIAL COMPULSION. If any Party hereunder is served with a subpoena or other process requiring disclosure of any material supplied by the other Party, that Party shall give the other Party prompt notice and cooperate with any efforts to quash the process.
25. Non-Assignment. CLIENT has specifically contracted for AMW’s services, and this Agreement may not be assigned or delegated either in whole or in part without the prior written consent of CLIENT.  Such consent may not be unreasonably withheld.
26. Liability and Indemnification: Neither AMW nor any of AMWs’ affiliates, nor any officer, director, trustee, employee, or agent of the foregoing, will have liability to CLIENT or any of CLIENTS’ affiliates, officers, directors, trustees, employees, agents, or subrecipients, for any claim, loss, damage, or injury incurred in the course of the performance of this Agreement or otherwise in connection therewith, other than for contract damages associated with a breach of obligations stated in this Agreement. 

Neither Party, its respective affiliates, officers, directors, trustees, employees, nor agents, will be liable to the other with respect to any subject matter of this Agreement for any special, indirect, incidental, consequential, punitive damages, or lost profits, under any contract, negligence, strict liability or other legal or equitable theory.

CLIENT will indemnify, hold harmless, and defend AMW and any of AMW’s affiliates, and each officer, director, trustee, employee, or agent of any of the foregoing, and their respective successors and assigns, from and against third party claims, demands, actions, liabilities, damages, and expenses (including reasonable attorneys’ fees and litigation costs) resulting therefrom, arising out of, or related to, the breach of this Agreement, or the gross negligence or willful misconduct of AMW in connection with this Agreement or the representations or certifications made by AMW herein.

V. TERMINATION, GOVERNING LAW, DISPUTES

27. TERMINATION. Either Party may terminate all or a portion of this Agreement or the Services at its convenience without cause at any time. Such notice shall specify the extent and the effective date of the termination (“Termination Date”).  AMW shall continue to perform its obligations in good faith until the Termination Date, upon which AMW shall immediately stop performance of the activities that are the subject of the termination notice.  CLIENT shall pay for any costs incurred by AMW in the performance of this Agreement through Termination Date.

28. CANCELLATION. Either Party may cancel for any reason during execution of this Agreement. In the event of cancellation in accordance with the terms herein, Client shall be entitled to a pro rata refund of the remaining funds for services not yet rendered.  AMW reserves the right of cancellation if at any time Client fails to uphold its responsibilities under this Agreement. Client is responsible for providing all final content within 30 days of AMW’s request for the completion of the project. If there is a failure to do so, the project is considered to be canceled.

29. RENEWAL. Unless otherwise agreed by the Parties in writing this Agreement shall automatically renew at the end of the Period of Performance for a renewal term of 1 month.

30. FORECE MAJEURE. Either Party shall be excused from performance and shall not be liable for any delay, in whole or in part, caused by the occurrence of any contingency beyond the reasonable control either of the excused Party or its subcontractors or suppliers including, but not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms hereof, accident, fire, explosion, flood, severe weather or other act of God, or shortage of labor or fuel or raw materials.

31. WAIVER OF DEFAULT OR BREACH. Failure of either Party to exercise any of its rights under this Agreement shall not constitute a waiver of those rights.

32. GOVERNING This Agreement shall be construed in accordance with the terms and conditions set forth in this Agreement, and the laws of the State of Maryland, without regard to choice or conflict of laws principles that would cause the application of any other laws.

33. SEVERABILITY. Should any provision of this Agreement be determined to be unlawful the remaining terms and conditions of this Agreement will continue to remain in force and effect and shall be interpreted so as to best effect the original intentions of the parties.

34. DISPUTE RESOLUTION. The Parties shall use their best efforts to negotiate a settlement of any disputes arising out of this Agreement or any breach of this Agreement.  If the parties cannot settle such dispute, either party may give notice that it wishes to refer the dispute pursuant to the Commercial Rules of Arbitration of the American Arbitration Association (“AAA Rules”) before a single arbitrator, with such arbitration to be held in the State of Maryland.   If the parties cannot agree upon an arbitrator, the AAA shall appoint an arbitrator in accordance with the AAA Rules.  The arbitrator shall be empowered to award specific performance, injunctive relief, and other equitable remedies as well as damages, but shall not be empowered to award punitive or exemplary damages.

Each Party shall bear its own costs and legal fees associated with such arbitration and shall initially bear one-half of the costs of the arbitrator, but the arbitrator may determine that under the facts and circumstances it is equitable that one Party bear all or a portion of any of the foregoing costs and expenses of the other Party.  The final arbitration award shall be binding on the Parties.

35. ENTIRE AGREEMENT & EXECUTION. This Agreement and all appendices annexed hereto constitute the complete understanding of the Parties and supersede any other prior agreements.   In the event of any conflicting term or covenant between this Agreement and any appendices, this Agreement shall govern and control. This Agreement may be executed through signatures to any number of counterparts, each of which shall be deemed an original, but any or all of such counterparts and documents shall constitute but one agreement.
36. AMENDMENTS. This Agreement may be supplemented, amended or revised only in writing by agreement of the Parties.

 Exhibit A

AMW Marketing & Design, LLC

Description of Services

SCOPE OF WORK

I. [Website Maintenance] Overview

AMW Marketing & Design will provide Website Maintenance Services to CLIENT to achieve the following general objectives.

1.1 Background Information.

Updates and backups to an existing website. Daily backup of site, WordPress plugin and theme updates, virus protection, performance scans, uptime monitoring, site traffic monitoring and monthly reports. Site updates, including minor changes like rewording of pages and replacement of images. Minor changes are changes that do not affect the entire website.

1.2 Engagement Overview.

• Up to 1 hour a month of site updates including minor changes like rewording of pages and replacement of images. Minor changes are changes that do not affect the entire website.*
• Scheduled Daily Backups
• WordPress, Plugin and Theme Updates
• Malware & Performance Scans
• Uptime Monitoring
• Site Traffic Monitoring
• Monthly Reporting

II. Website Maintenance Services
AMW Marketing & Design will provide the Website Maintenance services according to the specifications detailed below, unless otherwise agreed by the Parties. 

2.1 Deliverables. AMW Marketing & Design will deliver the following deliverables:

2.2 Deliverable Schedule. AMW Marketing & Design will provide the deliverables detailed in Section 2.1 above in accordance with the following schedule, unless otherwise agreed by the Parties:

III. Compensation

3.1 Payment Terms. CLIENT shall pay AMW at the hourly rate of Forty-nine Dollars ($49.00 USD) per hour, billed automatically every 30 days.

IV. Special Considerations & Provisions

This Maintenance Agreement (“Agreement”) is hereby entered into between you, your employees and agents (collectively “Customer”) and applies to the purchase of all Monthly Website Maintenance Services (hereinafter collectively referred to as “Maintenance Services”) ordered by Customer.

4.1. Term and Termination – This Agreement shall be effective immediately after Stripe’s first automatic charge and continue for at least 1 months’ time. After 1 month, this Agreement may be terminated by either Party providing (30) days of written notice to the other. This Agreement may be terminated by AMW Marketing & Design (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with AMW Marketing & Design or hinders AMW Marketing & Design’s ability to perform the Maintenance Services hereunder. This Agreement can be terminated by either Party within the first 30 days after signing up.

4.2. Maintenance Services – AMW Marketing & Design agrees to provide Customer with Maintenance Services as described in this Agreement. Maintenance Services include:

• Updates to text, images, and other minor changes to Customer’s website pages.
• Upgrades to Customer’s content management system, including plugins and themes.
• Removal of malware, spam and malicious code from Customer’s website.
• Recovery of files or email from backups, if available.

4.3. Fees; Limitations on Refunds and Cancellation Fees – Customer agrees to pay AMW Marketing & Design any and all fee(s) as billed in accordance with this Agreement. The fee(s) must be received prior to the start of any Maintenance Services. THE CUSTOMER FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY CUSTOMER, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE CUSTOMER FURTHER AGREES TO PAY UPON CANCELLATION THE AMOUNT OF ANY CANCELLATION FEES OR OTHER AMOUNTS DUE TO AMW MARKETING & DESIGN AS PROVIDED IN THE AGREEMENT. AMW MARKETING & DESIGN IS HEREBY AUTHORIZED TO CHARGE CUSTOMER’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CUSTOMER TO AMW MARKETING & DESIGN.

4.4. Customer Responsibilities – For the purposes of providing these services, Customer agrees:

• To provide AMW Marketing & Design with access to its web sites for creating new pages, and making changes for the purpose of providing Maintenance Services.
• To properly convey to AMW Marketing & Design the information that needs to be changed or added.

4.5. Customer Acknowledgements – Customer understands, acknowledges and agrees that:

• Only one (1) hour of time for Maintenance Services is allowed per month.
• Any work that exceeds the total agreed upon hours per package will be billed on an hourly basis of Forty-nine dollars ($49.00) per hour, billed in fifteen (15) minute increments.
• Web page updates exclude, but are not limited to, image editing, graphic design, graphic editing, database design, database changes, programming, and search engine optimization.
• AMW Marketing & Design has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. Customer’s web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
• If changes are made by AMW Marketing & Design according to Customer’s information, and the changes are not correct, additional time to remedy the changes fall under the one (1) hour of time allotted.
• Unused time is not accumulative. Unused time does not transfer from month to month. Maintenance Services time is strictly month to month.
• AMW Marketing & Design is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
• AMW Marketing & Design is not responsible for changes made to Customer’s web site(s) by other parties.
• AMW Marketing & Design is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
• AMW Marketing & Design will not repair Customer’s website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
• Recovery or repair of Customer’s website is not guaranteed.
• Availability of backups is not guaranteed.

4.6. Additional Services – Additional services not listed herein will be provided at the rate of One Hundred Twenty-five dollars ($125.00) per hour. AMW Marketing & Design is not responsible for developing new content or writing new copy for Customer. Customer will be charged an additional fee for writing content, at the hourly rate of One Hundred Twenty-five dollars ($125.00) per hour.

4.7. Specific Indemnification – Customer shall indemnify and hold harmless AMW Marketing & Design (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by AMW Marketing & Design as a result of any claim, judgment, or adjudication against AMW Marketing & Design related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to AMW Marketing & Design (the “Customer Content”), or (b) a claim that AMW Marketing & Design’s use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, AMW Marketing & Design must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defense and all related negotiations.