This will constitute the entire agreement between Client and Windmill Strategy for marketing services on an ongoing, auto-renewing month to month basis beginning on the start date.
During this period, Windmill Strategy agrees to devote up to the number of hours selected above on the work outlined in this agreement. Work will normally be performed at the offices of Windmill Strategy, but occasionally may take place at other locations as required (Client may be responsible for reasonable travel expenses). Priority and scheduling will be at the discretion of Client, but Client acknowledges the need to work within previously established schedules and processes of Windmill Strategy. Work will normally occur between the hours of 9 to 5 on weekdays. Client agrees to provide all reasonable cooperation necessary for Windmill Strategy to do the work requested, and Windmill Strategy will not be responsible for delays or additional costs resulting from Client’s failure to provide such cooperation.
Overages and Unused Hours
Work requested in excess of the agreed-upon number of hours per month will be invoiced separately, at the hourly rate then in effect. Any hours unused at the end of the month will be forfeited. Expenses exclusive of normal overhead (including, but not limited to, travel costs, delivery services, travel, print costs, image licensing, copywriting, photography or web hosting costs) will be billed separately. All invoices will be payable within 30 days (net 30). Invoices paid after 30 days will be subject to interest at 1.5% per month.
All materials furnished by Client will remain the property of Client and will be returned upon request, or not more than 10 days from the termination of this agreement. Client grants Windmill Strategy a nonexclusive license to use Client’s material as needed for Windmill Strategy to perform the requested work. The results of any and all work performed under this agreement, including original creative work (collectively, “Deliverables”) will be considered work-for-hire, and will become the property of the Client. Client may use this material in any way deemed appropriate. Notwithstanding the foregoing, Windmill Strategy reserves its rights in any preexisting intellectual property as well as in any underlying methods, ideas, concepts, tools, and methodologies of a general nature or that are needed or used by Windmill Strategy to provide services to other clients.
Price Change, Renewal, Cancellation
Windmill Strategy may, at its discretion, increase the cost of hosting, in a reasonable amount due to market conditions. Increases of less than 6% in a one year period are pre-authorized; client will be notified of any price increase of 6% or greater at least 30 days in advance. This contract will automatically renew on a yearly basis, until such time as it is cancelled in writing, by either party, with at least 30 days notice.
Pageviews and Space
Client is allocated a monthly allowance for the number of pageviews as well as site storage/space. This allowance varies depending on the hosting package purchased. Should Client’s website account pass the allocated amount Windmill Strategy reserves the right to charge an additional fee for the overages, and will suggest moving to a larger hosting plan in such cases. Unused pageviews or storage in one month cannot be carried over to the next month.
If the server hosting Client’s website has a physical downtime that is not within the 99.9% uptime for the month, Client may receive one month of credit on their account. Approval of the credit is at the discretion of Windmill Strategy dependant upon justification provided. Third party monitoring service reports may not be used for justification due to a variety of factors including the monitor’s network capacity/transit availability. The uptime of the server is defined as the reported uptime from the operating system and the Web Server which may differ from the uptime reported by other individual services.. The uptime calculation shall not include unavailability due to circumstances beyond Windmill Strategy’s reasonable control, or scheduled downtime. To request a credit, please contact firstname.lastname@example.org with justification. All requests must be made in writing via email.
Hosting Emergency Contact
If any downtime or other hosting emergency is apparent during non-business hours, Client may contact Windmill Strategy’s 24 hour hosting hotline at: (612) 568-4286.
Backups and Data Loss
Backup service runs daily, backing up the site database(s) and all files. Up to 30 backup points are retained at any given time. In times of active development, more than one backup point may be taken per day, resulting in less than 30 days of backup points. Windmill Strategy also maintains a copy of all site files from the time of go-live during the term of the agreement. In the event of data loss due to client access, Client agrees to notify Windmill Strategy immediately so that appropriate restoration steps can be made. Windmill Strategy will bill the Client for time spent restoring files, at Windmill Strategy’s hourly rate in effect at that time.
The information disclosed to Client by Windmill Strategy that is designated as confidential or proprietary, or that relates to technical and business information, proprietary ideas and inventions, ideas, trade secrets, drawings and/or illustrations, existing and/or contemplated work and services, research and development, production, costs, profit and margin information, finances and financial projections, customers, clients, marketing, and current or future business plans and models shall be “Confidential Information” at the time of its disclosure, unless the it has clearly in the public domain or provided to Client on a non-confidential basis. Client agrees not to disclose any Confidential Information obtained from Windmill Strategy to anyone unless required to do so by law or approved by Windmill Strategy in advance and in writing.
Term and Termination
The agreement shall commence upon Client’s communication of its acceptance of the terms and conditions set forth herein (payment of a fee shall be deemed as acceptance), and shall continue until the work has been completed with no further work scheduled, or until terminated as set forth herein. Windmill Strategy shall have right to terminate this agreement: for any reason by providing Client with 30 days prior written notice (Client will be refunded any unearned prepaid fees in such event); in the event that Client breaches any term or condition of this agreement and such breach is not cured within 30 days of notice thereof; or in the event that Client fails to pay any fee when due, provided, however, Windmill Strategy may first suspend performance of its obligations under this agreement while working with Client to cure any such failure). Provisions of the agreement shall survive termination to the extent necessary to give such provisions the intended meaning and effect.
Waiver of Warranty
The work, services, and Deliverables are provided to and accepted by Client “as is”, and Windmill Strategy makes no representations or warranties with respect thereto, and disclaims all express or implied representations and warranties, including, but not limited to, those regarding merchantability, fitness for a particular purpose, title, noninfringement, accuracy, quality, correctness, completeness, comprehensiveness, suitability, compatibility, delays and other problems inherent in the use of the internet and electronic communications; errors, viruses, or other harmful components introduced to the Deliverables or services, privacy and data security, unauthorized access and entry to systems or accounts, or any others (irrespective of any course of dealing, custom or usage of trade).
Disclaimer of Warranties
Windmill Strategy DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE RELATED TO THIS PROPOSAL OR THE SERVICES.
Client acknowledges and agrees that it is aware that that The Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et al.) as amended from time to time (the “ADA”), applies to websites (including websites created through the Services), and that the ADA does not provide any regulatory guidance on what is required for websites to meet the requirements of the ADA. As such, Windmill Strategy does not provide legal advice and does not guarantee that the Services, or any website resulting therefrom, will comply with the ADA. Client acknowledges and agrees that having been advised of the foregoing, that it has the sole and complete legal and professional responsibility for ADA compliance and accessibility responsibilities at a local, state, and federal level and to take necessary action to ensure its website’s compliance, which may include actions above and beyond those set forth herein such as to seek legal counsel regarding the foregoing.
If the Services include any ADA related compliance tools, as selected by the Client, Client acknowledges and agrees that such tools are provided to Client by third parties, and that Windmill Strategy is not responsible for and does not guarantee that such tools will render the Services and any website ADA compliant. Other than any remedies made available to Client such third parties, if any, Client remains responsible for ADA compliance.
Limitation of Liability
IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF WINDMILL STRATEGY, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE FEES PAID BY CLIENT TO WINDMILL STRATEGY DURING THE 12 MONTHS PRECEDING WHEN ANY CLAIM ARISES. IN NO EVENT SHALL WINDMILL STRATEGY BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY WINDMILL STRATEGY. EVEN IF WINDMILL STRATEGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS LIMITATION OF LIABILITY AND WAIVERS OF WARRANTY ARE INDEPENDENT OF ANY REMEDIES SET FORTH HEREIN AND WILL SURVIVE AND APPLY EVEN IF SUCH REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
Indemnification/Liability by Client
Client agrees that it shall defend, indemnify, save and hold Windmill Strategy harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against Windmill Strategy, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Windmill Strategy against liabilities arising out of: (1) any injury to person or property caused by any products sold or otherwise distributed in connection with Windmill Strategy; (2) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement; (4) any defective products sold to customers from Windmill Strategy’s server; and (5) any content appearing on any website hosted or maintained by Windmill Strategy.
Indemnification/Liability by Windmill Strategy
Subject to the terms, conditions, express representations and warranties provided in this Agreement, Windmill Strategy agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses from third party claims arising out of any finding of fact which is inconsistent with Windmill Strategy’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Windmill Strategy in writing of the claim; (b) Windmill Strategy shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Windmill Strategy with the assistance, information and authority necessary to perform Windmill Strategy’s obligations under this section. Notwithstanding the foregoing, Windmill Strategy shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client content or material, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Windmill Strategy.
Zero Tolerance Spam Policy
We take a zero tolerance stance against sending of unsolicited e-mail, bulk emailing, and spam. “Safe lists”, purchased lists, and selling of lists will be treated as spam. Any user who sends out spam will have their account terminated with or without notice. Sites advertised via SPAM (Spamvertised) may not be hosted on our servers. This provision includes, but is not limited to SPAM sent via fax, phone, postal mail, email, instant messaging, or usenet/newsgroups. No organization or entity listed in the ROKSO may be hosted on our servers. Any account which results in our IP space being blacklisted will be immediately suspended and/or terminated. Windmill Strategy reserves the right to require changes or disable as necessary any web site, account, database, or other component that does not comply with its established policies, or to make any such modifications in an emergency at its sole discretion. Windmill Strategy reserves the right to charge the holder of the account used to send any unsolicited e-mail a clean up fee or any charges incurred for blacklist removal. This cost of the clean up fee is entirely at the discretion of Windmill Strategy.
This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Windmill Strategy’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach. This agreement supersedes all prior oral or written agreements and understandings relating to the subject matter of this Agreement.
Windmill Strategy shall not be deemed in breach of this Agreement if Windmill Strategy is unable to complete its obligations or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Windmill Strategy or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Windmill Strategy’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Windmill Strategy shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
Governing Law and Dispute Resolution
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Minnesota without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration located in Minneapolis, Minnesota, through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties agree to bring any action or proceeding in connection with this Agreement exclusively in the state or federal courts located in Hennepin or Ramsey County in the State of Minnesota, and agree to irrevocably submit to the exclusive jurisdiction of such courts in any such action or proceeding and waives all objections to jurisdiction and venue of such courts. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Windmill Strategy will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Windmill Strategy shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
This Agreement may not be assigned or delegated directly or indirectly, by any party, wherein a merger or the transfer of all or substantially all of the ownership interest of a party shall be deemed an assignment; except that Windmill Strategy may assign their rights and delegate their duties under this Agreement to an affiliate, or to a purchaser in connection with a sale of all or substantially all of the assets thereof or a merger or other business combination having a similar effect. Any assignment in violation of this provision is void and without effect.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.