Last updated March 26, 2020. Please save for your records.
Approval of a project proposal (“Proposal”) indicates the acceptance of the terms and conditions set forth in this agreement (“Agreement”) by an authorized representative of the client entity (“Client”).
Client is hiring OptimWise, LLC, a South Carolina limited liability company (“OptimWise”) as an independent contractor to perform the work (“Project”) outlined in the Proposal.
Scope of Work
Any work Client wishes OptimWise to perform which is not specified in Proposal will be considered an additional service, requiring additional payment.
Schedule & Timeline
Client agrees to respond promptly to all communication (within 1 business day whenever possible). Client acknowledges that delays in providing information and resources may cause delays in the production and delivery of the Project. If Client does not provide feedback on an item within 2 business days (or by a different date OptimWise may set), OptimWise reserves the right to proceed with Project using its best judgment. If this occurs, Client acknowledges that changes it requests after the due date for feedback may incur additional time and cost. Client understands that all changes to requirements, content, design, or process that Client requests may alter the time and cost.
Invoices will be emailed to Client and include payment instructions. Payments must be made in US dollars. Invoices are due in 15 days unless otherwise noted. Payments for ongoing services, such as online marketing, are due in advance. Overdue invoices will be subject to a 1.5% penalty per month. OptimWise reserves the right to remove its work from the Internet until final payment is made. OptimWise’s rates and fees are subject to change, and OptimWise will notify Client of changes before billing. For hourly billing, OptimWise will round up to the nearest 15-minute interval, unless otherwise specified. Client’s payment for completed Project will be considered Client’s acknowledgement that the completed Project fulfills all contractual obligations, with the exception of ongoing services.
If Client causes a delay of 15 days or more, OptimWise reserves the right to place Project on hold. In that event, OptimWise reserves the right to invoice for work completed and begin billing for maintenance (if applicable), regardless of date or progress on the Project. OptimWise reserves the right to charge a Hold Fee of up to $1000 or 10% of the total project amount, whichever is less, each time Client has OptimWise take the Project out of hold to restart work.
If delays caused by Client prevent OptimWise from completing Project for 6 months or more from the start of the Project, OptimWise reserves the right to 1) require an amendment of the Agreement to proceed with the Project, or 2) to terminate Agreement without further notice to Client and without refund of any fees paid, and to require a new Agreement.
Client is responsible for registration, renewal, and payment of its domain name(s).
Client agrees to pay for hosting of development site, unless otherwise agreed. Client agrees to use its own hosting for live site, and is responsible for all renewals and payments. OptimWise is not responsible for downtime, poor performance, or loss of data caused by any host at any time.
If Client opts out of OptimWise’s WordPress Maintenance service, Client is responsible for all website maintenance (updates, backups, security, etc.).
OptimWise will follow online marketing best practices for Project and services. However, because OptimWise doesn’t have complete control over all facets of marketing and Client’s organization, OptimWise is not able to guarantee results, including but not limited to, ranking, traffic, conversions, email signups, leads, or earnings.
OptimWise will provide Client technical support for the areas of the site affected by this Project, for 30 days following the Completion Date. OptimWise will provide technical support within a reasonable time frame, usually within 2 business days. After the support period, OptimWise will charge a fee for technical support. If Client has a retainer that includes technical support, the retainer will cover technical support up to its limit. OptimWise will charge a fee for technical support beyond that.
This section is applicable when Client pays for a retainer. Each monthly retainer period terminates 30 days after it begins. Unused hours expire; they don’t roll over. There’s no minimum number of months. Retainer payments are due on the first day of each period, in advance.
Assignment of Project
OptimWise reserves the right to use subcontractors.
This Agreement may be terminated by either party with a full 30 day written notice. Client agrees to pay for all completed work and for all expenses that Client had approved prior to the termination date. No portion of the initial payment will be refunded.
Client agrees to defend, indemnify, and hold OptimWise, its members, employees, and agents harmless for any and all damages, liabilities, claims, charges, losses, and expenses (including reasonable attorney fees and costs) resulting or arising out of its breach of this Agreement.
Limitation of Liabilities
While OptimWise will endeavor to design a fully functional website, it cannot ensure compatibility with all browsers and devices, or guarantee that the website will always operate uninterrupted and without errors. OptimWise cannot guarantee compatibility with browser versions more than 2 years old. Although OptimWise will endeavor to provide a secure website, OptimWise cannot guarantee that the website will not be subject to security breaches. OptimWise does not provide legal counsel; Client agrees to seek necessary legal counsel for any legal issues related to their website(s), including, but not limited to, compliance with government regulations and industry regulations. Under no circumstances, including negligence, will OptimWise or its subcontractors be liable for any direct, indirect, incidental, special or consequential damages that result or arise from the use of or inability to use the website; or that results from mistakes, omissions, interruptions, deletion or loss of files or data, errors, defects, delays in operation, or of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access.
Copyrights and Trademarks
Client guarantees that any elements of text, images, designs, trademarks, or other media provided by Client are owned by Client, or that Client has permission from the rightful owner to use each of these elements. Client warrants that the Project, its specifications, and any services shall not infringe on the intellectual property rights of any third party or any rights of publicity or privacy. Copyright to the finished website is owned by OptimWise. Upon final payment of this Agreement, Client will be assigned the rights to use as a website the designs, text, and media contained in the finished website. Rights to code and third-party images are specifically not transferred to Client, and remain the property of their respective owners. OptimWise reserves the right to place its name on Client’s website, and to include the Project in its portfolio and other marketing material (including digital material such as social media and email). OptimWise reserves the right to include in its marketing material (including digital material) any testimonials or reviews that Client writes about OptimWise. All rights not expressly granted in this Agreement are reserved to OptimWise.
Disclaimer of OptimWise
OptimWise does not warrant or otherwise guarantee the ability of any user to access Client’s website or web properties, the speed of such access to the website or web properties, the quality of the connection to the server, that access to the website or web properties will be uninterrupted, or that the operation of the website or web properties will be free from error. OptimWise disclaims, and Client hereby expressly waives, any and all other warranties, whether express, implied or statutory, with respect to the services, website, server and/or the results obtained from their use by Client, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose.
Every notice or other communication required or contemplated by this Agreement must be in writing and sent by one of the following methods: (1) personal delivery, in which case delivery shall be deemed to occur the day of the delivery; (2) certified or registered mail, postage prepaid, return receipt requested, in which case delivery will be deemed to occur the day it is officially recorded by the U.S. Postal Service has delivered to the intended recipient; (3) next day delivery by recognized overnight delivery service such as Federal Express, in which case delivery will be deemed to occur upon receipt; or (4) email or other electronic document (with a confirming copy), provided, however, if there is a breach under this Agreement, notices under those circumstances shall be sent via delivery methods 1 through 3.
Notwithstanding any other term and conditions in this Agreement, in the event that a party is materially unable to perform any of its obligations because of severe weather, natural disasters, acts of God, riots, wars, governmental action, or other event of force majeure beyond such party’s control, such party shall, on written notice to the other party, be relieved from its performance of such obligations to the extent, and for the duration, that such performance is prevented by such events; provided that such party shall at all times use its best efforts to resume such performance.
If it breaches this Agreement, Client shall pay reasonable attorney fees and costs incurred by OptimWise to enforce this Agreement.
If any provision of this Agreement will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. The relationship between Client and OptimWise is that of an independent contractor. Nothing in this Agreement shall be construed as creating a relationship between OptimWise and Client of joint venturers, partners, employer-employee, or agent. Neither party has the authority to create any obligations for the other, or to bind the other to any representation or document. This Agreement shall be binding on the parties hereto, their successors, personal representative, or assigns. This Agreement represents the complete agreement between the parties hereto, and no term, condition, or agreement has been agreed by the parties, except as set forth in herein. It supersedes any other prior or contemporaneous agreements, oral or written, relating to the Agreement. The parties make no reliance on any verbal representations. This agreement may not be amended, modified, or changed except by written agreement signed by the parties. No delay, omission, or failure of OptimWise to act under this Agreement or to insist upon strict compliance with any term and condition, and no custom or practice of the parties at variance with the terms and conditions of this Agreement shall constitute a waiver of OptimWise’s right to demand exact compliance with this Agreement. No waiver of any right or remedy of OptimWise shall be construed as a bar to or a waiver of any such right or remedy on any future occasion. The parties acknowledge that they and their counsel have reviewed this Agreement and the normal rule of construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments. The parties acknowledge that any dispute or interpretation of this Agreement will be governed by the laws of the State of South Carolina regardless of the effect of a particular state’s conflict of laws. The parties agree that if a dispute arises out of this Agreement that they consent to jurisdiction and such disputes being litigated in the Greenville County Circuit Court in South Carolina or the Federal District Court in South Carolina. Client may not assign this Agreement, in whole or in part, without OptimWise’s prior express written consent, which shall not be unreasonably withheld or delayed. Any attempted assignment without such written consent shall be void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.