Although there is also some unavoidable standardized legalese at various places in the terms of service we try to write everything in plain English. To do this, we frequently use terms like “we” and “you.” “We,” “us,” “our,” and “the Company” means AF DIGITAL NATIVE, LLC, a corporation registered in the State of California. “You,” “your,” “Customer” or “Client” in this document is you, our Client.
Current Hourly Rate
Throughout this document, reference is made to our current hourly rate. This rate is defined as our hourly rate that is in place at the time a service is requested, not at the time your agreement was signed. We will provide you with our current hourly rate upon request.
As of January 2023 our hourly rate is $125 unless otherwise outlined in the Scope of Work.
You are hiring us to complete your project according to the specific scope of work we described in the Scope of Work document you will receive. The proposed cost of the project in the proposal includes only this work. When you hire us, we are independent “work for hire” contractors and not employees of you or your business.
Availability and Communication
We work with clients throughout the United States and as such we are available via email, phone, and Slack Monday through Friday from 5:00 am to 5:00 pm PST / 8:00am to 8:00PM EST. Our normal response time is one business day, though our response time may vary. We do not work on weekends or holidays. Clients with current website management services receive priority response times.
Office phone, email, Slack and agreed upon Project Management platforms are the primary means of communication accepted for our work together. We do not communicate via mobile phone, text message, social media, or instant/private messaging (like Facebook Messenger) since we cannot track these requests as a team.
The Scope of Work
The Scope of Work details the work we will deliver to you, including without limitations, the deliverables and specifications thereto, and any and all compensation to be paid for such work. If additional services are requested by the Client, the parties may enter into one or more other Proposals of Service signed by the parties. Notwithstanding the foregoing, the terms of any Scope of Work entered into between the parties, shall be in addition and supplemental to the terms of this Agreement. If there is a conflict between this Master Services Agreement and any part of the Scope of Work, the terms of the Scope of Work shall be binding regarding scope of work and the fees for said work.
It is our experience that a typical project/scope of work takes about 4-6 weeks (not including holidays). This is a rough estimate and depends on a number of factors, including but not limited to the complexity of your project, our current workload, material availability, and any problems that might arise as we work on your project. Unless specifically defined in the Scope of Work, we do not guarantee website launch by a specific date. As a matter of law, for this contract time shall be considered to be NOT of the essence unless agreed upon by all parties in writing and made a part of the contract.
We have an active queue of work and we do not place your project in that queue until your deposit (explained below) has been received. While we endeavor to start your project quickly, we will not begin your project until it reaches the front of our queue so that it can receive our full attention.
Warranties, Maintenance Plans & Retainers
No part of our work stipulates any sort of warranty, maintenance plan and/or retainer. Services are rendered upon approved scope of works for the periods provided. Work, consultations, and any sort of support outside of the scope of work and/or timeframe are subject to our current hourly rates.
Service requests and/or consultations may be subject to a 3-5 business day response time due to other ongoing projects.
For immediate assistance and peace of mind, please ask about our warranties, maintenance plans and service retainers.
Delayed, Suspended and Abandoned Projects
In our experience, projects can often stall as we wait on assets, information, feedback, approvals, etc. we have requested from you. While we are waiting on your response, we will normally begin to work on other projects to make efficient use of our time.
A project is considered delayed if your response to our request for assets, information, feedback, approvals, etc. is delayed for more than 5 business days. When a project is delayed, we may remove it from our active queue and place it at the back of the line. Work will resume on a delayed project when we have received what was requested and our queue of work allows us to focus on your project again.
A project is considered suspended if your response to our request for assets, information, feedback, approvals, etc. is delayed for more than 45 days without a reasonable cause as determined by us. When a project is suspended, an invoice for the remaining balance of the project shall be sent and considered due upon receipt.
ONCE A PROJECT IS CONSIDERED SUSPENDED, IT IS THE SOLE RESPONSIBILITY OF THE CLIENT TO REACTIVATE THE PROJECT BY (1) SUPPLYING ALL ITEMS NECESSARY TO COMPLETE THE PROJECT AND (2) PAYING THE BALANCE OF THE PROJECT IN FULL.
After a project is considered suspended, we will not perform any additional work on the project until the project has been reactivated as explained above.
A project is considered abandoned if your response to our request for assets, information, feedback, approvals, etc. is delayed for more than 90 days without a reasonable cause as determined by us. WHEN A PROJECT IS ABANDONED, ANY MONIES PAID TO US FOR THE PROJECT IN QUESTION SHALL BE FORFEITED.
Projects requiring a “Rush” will typically incur at least a 50% markup of the total project cost. This increase is necessary to cover the overtime and additional costs incurred to complete your project in the time frame you require.
It is our experience that changes to the scope of work often occur during a project. These changes usually require additional costs and time. To allow for these change requests, we normally include a Change Order in the Scope of Work.
The Change Order is approved as part of the Scope of Work and is used only if you request changes to the original scope of work, or want to make changes to previously approved items. We will provide a separate scope of work for the changes you request and a cost for these changes. When you approve this scope and cost, the amount will, at our discretion, be payable immediately or on the final project invoice.
CHANGES AFTER LAUNCH
The design project described by the Scope of Work in the Scope of Work concludes when your website is launched. Though we are happy to help you with changes to your website after launch, any changes or modifications that were not included in the original scope of work, other than fixing existing bugs (see below), are billable at our current hourly rate.
An “existing bug” is an error in the programming we provided that existed prior to launch and affects the operation or appearance of your website.
Additional costs at our current hourly rate will be incurred for future support requests such as but not limited to:
Your website has problems or stops working after an update to WordPress or any plugins or software you are using (note: our website management plans cover these ongoing compatibility issues, see below).
You or a third party add code or a plugin to your site that affects its operation.
You need assistance adding new plugins or features to your site that weren’t included in the original project.
A new version of a web browser has issues displaying your website properly.
You or a third party make changes or alterations to any part of the site.
Your site gets hacked or compromised and/or you lose files or data.
THE USE OF THIRD-PARTY ASSETS
By providing any assets such as text, images, artwork or any other elements to us, you guarantee that they are either owned by you or that you have secured permission from the owner to use them. You agree to protect us from any claim by a third party that the assets you supplied to us are their intellectual property.
We guarantee that all elements of the work we deliver to you are either owned by us or that we have obtained appropriate permission from the owner to provide them to you.
Securing the appropriate licenses for photography that you provide to us to use on your website is your responsibility. You assume the full risk of liability for the use of all images. If you are in doubt of the licensing status of an image, contact the original artist before providing it for us to use in your design project.
We often utilize royalty-free images obtained from stock photo websites. The cost for licensing this stock photography is not included in the proposal unless specifically itemized. We will secure your approval before purchasing any stock photography. Stock photo charges are typically billed on the final project invoice.
Pricing in our proposal assumes that you will also purchase our website management service and/or assume ownership of our preferred website hosting platform – Kinsta. Our website hosting is optimized for our workflow. Since using other servers typically requires a change in our workflow (and makes the project take longer as a result), there will usually be a surcharge added to your proposal if we do not host your website.
In addition, if you elect not to host on our server, we cannot be responsible for the speed of your website, the performance of any of your website features, security certificates for your website, the uptime of your website, or any other hosting related matter.
FIXING ANY PROBLEMS RELATED TO WEB HOSTING, OR PROJECT DELAYS RELATED TO WEB HOSTING ON A SERVER OTHER THAN OUR OWN IS BILLABLE AT OUR CURRENTLY HOURLY RATE.
We use commercially reasonable efforts to make sites that we host available 99.9% of the time during each monthly billing cycle. If we are unable to meet this service level, you will be eligible to receive a credit to apply to future billing cycles based upon the unavailability for that month. For the purposes of this agreement, unavailability means that either your website is unresponsive, or your website returns a server error response to valid user requests for more than 60 seconds of consecutive requests, and in all cases that the unavailability is not because of local, regional, national or international outages.
Unavailability that is a result of scheduled maintenance is excluded from these conditions and will not be considered for service credit calculations. Scheduled maintenance is defined as maintenance that is announced at least 2 days in advance, and does not exceed one hour in any month. Typically, scheduled maintenance occurs in off-peak hours (usually in the early morning).
Service credits will be calculated as a percentage of the bill for the billing cycle that the unavailability occurred. The percentage for the credit will be calculated by dividing the number of minutes of unavailability by the total number of minutes in that billing cycle. THE CUSTOMER MUST REQUEST SERVICE CREDITS WITHIN 7 DAYS OF THE UNAVAILABILITY OCCURRING.
SEARCH ENGINE OPTIMIZATION (SEO)
If we build your website, we guarantee that your site will be able to be indexed by search engines like Google and others at the time of launch. Additional SEO services are not included in your project unless specifically itemized in the Scope of Work. Your ranking and placement on search engines depend on a myriad of factors. WE CANNOT GUARANTEE RANKING OR PLACEMENT ON ANY SEARCH ENGINE.
WEBSITE ACCESSIBILITY AND COMPLIANCE
If laws require that your website is accessible to users with disabilities, or if you desire for it to be, it is your responsibility to inform us of this requirement.
If your website or any associated data must meet compliance requirements of any kind for any entity, organization, or regulatory body (such as but not limited to HIPAA, FERPA, etc.), it is your responsibility to inform us of the specific compliance requirements involved.
WE DO NOT GUARANTEE TO MEET ANY COMPLIANCE FOR ACCESSIBILITY OR OTHER REQUIREMENTS UNLESS WE HAVE EXPLICITLY AGREED TO DO SO AS PART OF THE SCOPE OF WORK.
LEGAL PAGES AND PRIVACY REQUIREMENTS
IT IS THE SOLE RESPONSIBILITY OF THE CLIENT TO DETERMINE WHETHER SUCH PAGES ARE REQUIRED. It is advisable to consult an attorney to determine your responsibilities in this matter. Creation of the content for these legal pages is not included in the Scope of Work for your new website unless specifically itemized. However, if you provide the content for these pages, we will typically add them at no additional cost.
IT IS THE SOLE RESPONSIBILITY OF THE CLIENT TO INFORM US THAT YOUR WEBSITE MUST BE COMPLIANT WITH ANY REGULATORY BODY such as but not limited to the EU’s General Data Protection Regulation (GDPR) or the California Online Privacy Protection Act (CalOPPA). Compliance with these, or any other regulations or laws, must be included as a line item in the Scope of Work and accepted by you to be a part of the contract between the parties.
Occasionally, your website will send email when certain events occur such as the completion of a contact form, sale of a product, update/reset of a user’s password, etc. These emails that are automatically generated by the WordPress system are often flagged as spam (or not delivered at all) by email providers like Google/Gmail, Microsoft, Yahoo and others.
SINCE WE CANNOT CONTROL THE RECEIPT OF EMAIL, WE CANNOT BE HELD RESPONSIBLE FOR ANY EMAILS THAT WERE NOT DELIVERED TO THE CLIENT FOR ANY REASON.
IT IS THE CLIENT’S RESPONSIBILITY TO REGULARLY CHECK SPAM FOLDERS AND WEBSITE FORM AND ORDER INTERFACES FOR ANY NOTIFICATIONS THAT WERE NOT DELIVERED TO THE CLIENT’S INBOX.
WE DO NOT PROVIDE OR SUPPORT EMAIL SERVICE TO CLIENTS. We recommend consulting with an IT Professional about implementing professional email service from a reliable vendor.
Registering a domain name for your website and paying the accompanying annual registration fee is your responsibility. We can assist in the process of registration and connecting your domain name to the website if you desire. You can purchase your domain name for multiple years, or renew it annually at your discretion.
It is your responsibility to ensure that the credit card the domain registrar has on file for your domain registration is current for rebilling.
WE ARE NOT RESPONSIBLE FOR SUSPENSION OR LOSS OF DOMAIN NAMES BECAUSE YOUR CARD COULD NOT BE BILLED OR FOR ANY OTHER REASON. If you lose access to your domain name through non-payment, suspension or any other reason, your website will no longer be accessible or viewable by the public. Work needed as a result of domain expiration is billable at our current hourly rate.
WEBSITE MANAGEMENT SERVICE
Our Website Management includes website hosting, server maintenance, website/theme/plugins updates, website backups, and website security.
AT AF DGITAL NATIVE, WE DO NOT BELIEVE IN KEEPING OUR CLIENTS UNDER “LOCK AND KEY CONTRACTS.” CLIENTS WILL RETAIN FULL ADMINISTRATIVE ACCESS AND CAN MANAGE USER ACCESSIBILITY AT ANY TIME.
Our lockdown protocol hardens the WordPress system to make it more resistant to the actions of hackers. We employ industry leading security software that actively guards your website against hack attempts at multiple levels in the WordPress system.
Your website’s files and database will be backed up automatically each day. This backup is stored in our cloud data vault where we typically retain the previous 30 days of backups for your site.
Each month, at our discretion, we will apply available updates for the WordPress core software, your theme files, and your plugin files. We perform these updates for the items that appear in the “Updates” area of your WordPress dashboard. We also watch WordPress industry security news and proactively perform these updates more frequently during times of enhanced threat levels.
While it is impossible to guarantee that your site will never be hacked, all of these techniques make your website a more difficult target for hackers. In addition, it is well known that hackers tend to exploit easier targets first – sites without security measures in place. However, in the event that your site is hacked, we will restore it to pre-hack condition at no additional cost either by restoring a site backup or performing a malware cleanup at our discretion. We shall have no other or further liability beyond restoration of the site to the nearest available pre-hack condition.
Should your site become compromised by a hack or if your site becomes inoperable because of user error, we will restore a backup for you.
If the restorations are the result of a hack, there is no limit to the number of restorations we will perform for you under this service.
If the restorations are due to user error, we will perform a maximum of 2 restorations in any 30-day period.
Additional user error-related restorations will be performed at our current hourly rate with a one-hour minimum.
PREMIUM (PAID) THEMES AND PLUGINS
Many websites use themes and/or plugins that require the payment of a recurring license fee to maintain access to ongoing software updates. We have secured appropriate licensing for many of these.
If we have appropriate licenses for the themes and/or plugins used by your website, the cost for recurring license fees are included in your Website Management Services, and licensing will be maintained for you as long as you are an active subscriber to our Website Management Services.
If your website uses premium themes and/or plugins and we do not have appropriate licensing, the responsibility is yours for maintaining the appropriate licensing to ensure the availability of updates.
We will advise you of the themes and/or plugins for which you will need to maintain licensing and assist you as needed in the process of obtaining them.
WE CANNOT BE HELD LIABLE FOR PROBLEMS SUCH AS BUT NOT LIMITED TO HACKS, INOPERABILITY OR INTERCOMPATIBILITY THAT ARISE FROM PREMIUM PLUGINS WHICH YOU CHOOSE NOT TO LICENSE AND ARE OUT OF DATE.
If an update to a plugin creates conflicts or causes issues with the functionality of your website, we will consult with you to determine the best course of action. Typically, we will remove the offending plugin and replace it with a similar plugin or other programming. If the time required to resolve a plugin compatibility issue exceeds 3 hours, additional time will be billable at our current hourly rate.
IT IS YOUR RESPONSIBILITY TO INFORM US IF YOUR SITE IS EXPERIENCING PROBLEMS AND NEEDS ATTENTION.
IF YOU ELECT NOT TO PURCHASE OUR WEBSITE MANAGEMENT SERVICE, THE TOTAL RESPONSIBILITY IS YOURS FOR WEBSITE HOSTING, SERVER MAINTENANCE, PERFORMING BACKUPS AND KEEPING WORDPRESS (AND ITS THEMES AND PLUGINS) UPDATED.
PAYMENT AND CANCELLATION FOR WEBSITE MANAGEMENT SERVICES
Payment for Website Management Services is due on the first day of each month.
You may cancel website management services with a 30-day notice. WE DO NOT OFFER REFUNDS ON WEBSITE MANAGEMENT SERVICES.
IF YOU ELECT TO DISCONTINUE WEBSITE MANAGEMENT SERVICES, THE TOTAL RESPONSIBILITY IS YOURS FOR WEBSITE HOSTING, PERFORMING SERVER MAINTENANCE, BACKUPS AND KEEPING ALL COMPONENTS OF YOUR WEBSITE BACKED UP, SECURED, AND UPDATED.
If you desire to migrate your website to another web host you can do so at anytime or you can request that we perform the website migration for you at our current hourly rate.
YOUR RESPONSIBILITIES IN WEBSITE SECURITY
We employ basic WordPress security techniques when building your website. However, studies have shown that one of the most common ways that hackers gain access to your website is through keylogging programs installed on the infected computers of users. You agree to protect any computer that you control that will log into the website by:
Installing and maintaining updated security software
Using the most up-to-date version of your preferred web browser
Keeping the operating system patched with recommended updates
Keeping versions of other installed software up to date if they are installed
Using a strong password (as shown by the WordPress password indicator) for any account you use to log in and edit your website, and that this password will only be used on your website.
You also agree that any employees, contractors, or other entities to whom you give (or ask us to give) access to the website will meet the requirements above.
We recommend the use of a password manager so that you have strong unique passwords for every site you access.
From time to time, our clients might employ a third party (such as but not limited to a Search Engine Optimization professional, social media professional, or content writer) whose services involve modifications to the website. WE CANNOT BE RESPONSIBLE FOR THE WORK OF A THIRD PARTY. Should our services be necessary due to any work performed by a third party, these services are billable at our current hourly rate.
OUR WEBSITE MANAGEMENT PLANS DO NOT COVER WORK NECESSARY DUE TO ACTIONS PERFORMED BY A THIRD PARTY. SHOULD OUR SERVICES BE NECESSARY DUE TO ANY WORK PERFORMED BY A THIRD PARTY, THESE SERVICES ARE BILLABLE AT OUR CURRENT HOURLY RATE.