Web Management/Retainer Agreement

Overview

These Terms of Service (the “Agreement”) are an agreement between Kumani Inc., (“Kumani” or “Developer” or “us” or “our” or “we”) and you (“User” or “client” or “customer” or “you” or “your”). This Agreement sets forth the general terms and conditions of Web Management/Retainer packages made available by Kumani Inc. (collectively, the “Services”). By obtaining, using, and/or paying for the Services, you agree to be bound by this Agreement. If you do not agree to abide by the terms of this Agreement, you are not authorized to utilize or access the Services.

Kumani and the client wish to discuss and exchange certain information related to business, products, applications, design, systems, components, technologies and other sensitive information items, which the parties hereto consider highly confidential and proprietary.

Purpose of Agreement

Client desires to retain Kumani as an independent contractor to perform various web design, web development, and/or marketing services (the “Services”). Kumani is ready, willing and able to undertake the Services and agrees to do so under the terms and conditions set forth in this Agreement. Accordingly, the parties agree as follows:

Payment

Client shall pay Kumani the current monthly fee associated with the Client’s chosen level of service, prior to the commencement of work by Kumani. The current prices for each level of service are listed below:

  • $99.99 per month ($100 for past clients) – Update service only. Includes updates/security patches to site framework (CMS, themes, plugins, etc.) only. No content changes allowed.
  • $249.99 per month – Max 3 billable hours per month.
  • $499.99 per month – Max 6.5 billable hours per month.
  • $999.99 per month – Max 14 billable hours per month.
  • $1,499.99 per month – Max 21 billable hours per month.

A credit card is required to be on file in our secure online Client Center (https://my.kumaniinc.com). The credit card on file will be auto-charged the amount due on the 1st of every month and will cover the Services for that specific month. This is an auto-recurring monthly plan.

If Client initially signs up after the 1st of any given month the amount due for the current month will be charged on the signup date and subsequent payments will be charged on the 1st of every following month. Kumani has sole discretion on whether to pro-rate the initial month of services.

Any payments received by Kumani are non-refundable. Cancellation does not entitle Client to a refund, pro-rated or otherwise. Upon Client cancellation, Kumani will continue to provide services for the period that the final payment covers, and will halt future charges.

Any billable hours accrued in excess of the Client’s service level maximum, will be billed separately at a rate of $75 per hour. Kumani will notify the Client when the maximum is being approached. Client can choose to cease work until the Web Management/Retainer plan’s renewal the following month to avoid overage charges.

Extent of Services

Kumani shall perform and complete the Services and the tasks that Kumani deems related and necessary. Kumani holds the sole discretion over what specific tasks fall within the scope of the Services.

Cancellation

To cancel, send an email request to billing@kumaniinc.com. Cancellation requests must be received prior to the 1st of the month (Pacific Time) of the month you wish to no longer engage the Services.

Any payments received by Kumani are non-refundable. Cancellation does not entitle Client to a refund, pro-rated or otherwise, of fees already paid, even for the month in which the cancellation occurred. Upon Client cancellation, Kumani will continue to provide services for the period that the last payment received covers, and will halt future charges.

For example, if a Client at the $500 service level submits a cancellation request on January 15th, the Services will cease as of February 1st. The Client’s card will not be charged for February, however the January 1st payment is not partially or fully refundable. Kumani would continue to provide the Services through January 31st, after which the agreement would cease.

Payment of Developer’s Costs

Should Customer request Developer’s physical presence away from Developer’s regular place of business for engagement in the performance of services under this Agreement, Customer shall reimburse Developer for all reasonable travel and living expenses necessarily incurred by Developer while away from Developer’s regular place of business and engaged in the performance of services under this Agreement. This is in addition to the agreed upon fees listed in “Payment”. Developer’s place of business is defined as a 40 mile radius from the Developer’s primary address.

Client agrees to reimburse Developer for any of the following expenses necessary in completion of the Services: Advertising Costs, Software License Fees, Code Licenses, Plugins, Shipping, etc… subject to prior approval by Client. Developer may include, at their discretion, some code license and plugin fees in the cost of the plan.

Late Fees

Late payments by Customer shall be subject to late penalty fees of 5% per month (minimum of $10) from the due date until the amount is paid.

Changes in Project Scope

Changes in scope require the mutual agreement of both parties.

Confidentiality

During the term of this Agreement, Developer will use reasonable care to prevent the unauthorized use or dissemination of Customer’s confidential information. Reasonable care means at least the same degree of care Developer uses to protect its own confidential information from unauthorized disclosure.

Confidential information is limited to information clearly marked as confidential, or disclosed orally that is treated as confidential when disclosed and summarized and identified as confidential in a writing delivered to Developer within 15 days of disclosure.

Confidential information does not include information that:
• the Developer knew before Customer disclosed it
• is or becomes public knowledge through no fault of Developer
• Developer obtains from sources other than Customer who owe no duty of confidentiality to Customer, or
• Developer independently develops.

Warranties

During the course of the engagement, we may recommend a purchase and installation of computer or technological hardware, software, communications, or services by your company. Warranties, to the extent they exist, are provided only by the manufacturer/vendor of those computer products.

Warranty Against Disablement: Developer expressly warrants that no portion of the Website contains or will contain any protection feature designed to prevent its use. This includes, without limitation, any computer virus, worm, Website lock, drop dead device, Trojan-horse routine, trap door, time bomb or any other codes or instructions that may be used to access, modify, delete, damage or disable Customer’s Website or computer system. Developer further warrants that it will not impair the operation of the Website in any way other than by order of a court of law.

Warranty of Compatibility: Developer warrants that the Website shall be compatible with modern and up-to-date web browsers.

THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES GRANTED BY DEVELOPER. DEVELOPER DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Limitation of Developer’s Liability to Customer

(a) In no event shall Developer be liable to Customer for lost profits/revenue of Customer, or special or consequential damages, even if Developer has been advised of the possibility of such damages.

(b) Developer’s total liability under this Agreement for damages, costs and expenses, regardless of cause, shall not exceed the total amount of fees paid to Developer by Customer under this Agreement.

(c) Developer shall not be liable for any claim or demand made against Customer by any third party.

(d) Customer shall indemnify Developer against all claims, liabilities and costs, including reasonable attorney fees, of defending any third party claim or suit arising out the Services provided under this Agreement. Developer shall promptly notify Customer in writing of any third party claim or suit and Customer shall have the right to fully control the defense and any settlement of such claim or suit.

Intellectual Property Infringement Claims

Developer represents, BUT DOES NOT WARRANT, that to the best of its knowledge the Website delivered to Customer under this Agreement will not infringe any valid and existing intellectual property right of any third party.

The Customer agrees to indemnify and hold harmless Developer against any and all claims, costs, and expenses, including attorney’s fees, due to materials included in the Website at the request of the Customer for which no copyright permission or previous release was requested or uses which exceed the uses allowed pursuant to a permission or release.

Term of Agreement

This Agreement commences on the date it is executed and shall continue until it is terminated by one party under the terms of this Agreement.

Termination of Agreement

Each party shall have the right to terminate this Agreement by written notice to the other. Fees already paid to Developer at time of termination are non-refundable, and the Developer will continue providing the Services until the end of the period that those fees cover.

Developer an Independent Contractor

Developer is an independent contractor, and neither Developer nor Developer’s staff is, or shall be deemed, Customer’s employees. In its capacity as an independent contractor, Developer agrees and represents, and Customer agrees, as follows:

(a) Developer has the right to perform services for others during the term of this Agreement subject to non-competition provisions set out in this Agreement, if any.

(b) Developer has the sole right to control and direct the means, manner and method by which the services required by this Agreement will be performed.

(c) Developer has the right to perform the services required by this Agreement at any place or location and at such times as Developer may determine.

(d) Developer will furnish all equipment and materials used to provide the services required by this Agreement, except to the extent that Developer’s work must be performed on or with Customer’s computer or existing system.

(e) The services required by this Agreement shall be performed by Developer, or Developer’s staff, and Customer shall not be required to hire, supervise or pay any assistants to help Developer.

(f) Developer is responsible for paying all ordinary and necessary expenses of its staff.

(g) Neither Developer nor Developer’s staff shall receive any training from Customer in the professional skills necessary to perform the services required by this Agreement.

(h) Neither Developer nor Developer’s staff shall be required to devote full-time to the performance of the services required by this Agreement.

(i) Customer shall not provide insurance coverage of any kind for Developer or Developer’s staff.

(j) Customer shall not withhold from Developer’s compensation any amount that would normally be withheld from an employee’s pay.

Mediation and Arbitration

If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in the following location: San Luis Obispo, CA. Any costs and fees other than attorney fees associated with the mediation shall be shared equally be the parties.

If it proves impossible to arrive at a mutually satisfactory solution through mediation, the parties agree to submit the dispute to binding arbitration in the following location: San Luis Obispo, CA under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with jurisdiction to do so.

Attorney Fees

If any legal action is necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses.

General Provisions

(a) Complete Agreement: This Agreement together with all exhibits, appendices or other attachments, which are incorporated herein by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. In the event of a conflict between the provisions of the main body of the Agreement and any attached exhibits, appendices or other materials, the Agreement shall take precedence.

(b) Modifications to Agreement: Modifications and amendments to this Agreement, including any exhibit or appendix hereto, shall be enforceable only if they are in writing and are signed by authorized representatives of both parties.

(c) Applicable law: This Agreement will be governed by the laws of the State of California.

(d) Notices: All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given as follows:

• When delivered personally to the recipient’s address as appearing in the introductory paragraph to this Agreement;
• Five days after being deposited in the United States mails, postage prepaid to the recipient’s address as appearing in the introductory paragraph to this Agreement, or
• When sent by fax or email to the last fax number or email address of the recipient known to the party giving notice. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail, or the recipient delivers a written confirmation of receipt.

Any party may change its address appearing in the signature section of this Agreement by giving notice of the change in accordance with this paragraph.

(e) No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.

(f) Assignment: The rights and obligations under this Agreement are freely assignable by either party. Customer shall retain the obligation to pay if the assignee fails to pay as required by this Agreement.

Subject to Other Terms of Service

By entering into this agreement, Client is also subject to Kumani’s General Terms of Service, found at : https://kumaniinc.com/terms-of-service/

Changes to Agreement

You can review the most current version of this agreement at any time at this page.

We reserve the right, at our sole discretion, to update, change or replace any part of this agreement by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

Client will be notified of any material changes to this agreement.

Contact Information

Questions about the Terms of Service should be sent to us at support@kumaniinc.com.