Last updated: September 1, 2023
By signing up for the Safekeeping service, you agree to be bound by the terms laid out in this Service Agreement ("Agreement"). This Agreement is between Todd Lininger Design, LLC, a Washington State corporation, doing business as "Safekeeping," with its principal place of business at 7700 23rd Ave NW, Seattle, WA 98117 ("Provider"), and you, the customer ("Client").
WHEREAS, the Provider is engaged in the business of providing maintenance, security, and support services for e-commerce websites;
WHEREAS, the Client wishes to avail themselves of such services for their Magento e-commerce platform, subject to the terms and conditions herein;
BY SIGNING UP FOR THE SAFEKEEPING SERVICE, the Client acknowledges and agrees to the terms and conditions set forth in this Agreement.
1.1 "Services": As described in Article 2 herein.
1.2 "Magento": Refers to the e-commerce platform Magento, also known as Adobe Commerce.
1.3 "Third-Party Tools": Software or services that are not proprietary to Provider but may be used to deliver Services.
Subject to the terms and conditions contained herein, the Provider shall offer software upgrades and patches, conduct malware scans, implement firewall protection measures, provide offsite data backups, perform security hardening, monitor logs and uptime, and furnish support services (collectively referred to as the "Core Services").
2.1.1 Standards of Performance
The Provider shall perform all Core Services in a manner that is both professional and commercially reasonable, in accordance with generally recognized industry standards.
2.1.2 Subcontracting and Third-Party Services
The Provider may subcontract Core Services and utilize third-party services for specific tasks, including but not limited to maintenance, development, security, and support features. By accepting this Agreement, the Client acknowledges and accepts the use of subcontractors and third-party services.
2.1.3 Remote Services
All Core Services under this Agreement will be provided remotely.
2.1.4 Additional Services
The Provider may offer additional services including, but not limited to, custom design and development, SEO, marketing, and performance optimizations ("Additional Services"). Terms for Additional Services, including pricing and scope, will be defined in a separate Statement of Work (SOW) or addendum to this Agreement.
The Provider reserves the unilateral right to amend, alter, or modify the scope of Core Services ("Service Modifications"). Any such Service Modifications shall be communicated to the Client in writing at least thirty (30) days prior to the effective date of the modification.
The Core Services provided under this Agreement shall initially focus exclusively on Magento e-commerce platforms. The Provider may, at its sole discretion, extend the scope of the Core Services to include other e-commerce and website platforms.
The Provider shall not be obligated to provide any services or perform any tasks not specifically set forth in this Article 2 or otherwise agreed upon in writing by the Parties.
The provision of Core Services may necessitate the use of third-party software or services. The Client acknowledges that such third-party services are governed by their own license agreements, and the Provider makes no warranties concerning, and shall have no liability with respect to, such third-party software or services.
Client agrees to compensate Provider for Services rendered in accordance with a schedule that shall be either monthly or yearly, as specified by the Client ("Payment Schedule"). Payments shall be due at the commencement of each billing period as defined by the Payment Schedule.
3.1.1 Payment Initiation
Client shall make the initial payment under this Payment Schedule at the beginning of the respective billing term, as a prerequisite to the commencement of Services.
3.1.2 Taxes
All payments required under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Client will pay all such taxes and duties unless Client provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.2.1 Immediate Work Stoppage
Should the Client fail to remit payment by the specified due date, all work related to the Client's website shall be halted forthwith.
3.2.2 Suspension of Services After Seven-Day Period
In the event that payment is not received within seven (7) days following the aforementioned due date, all services rendered by the Provider, including but not limited to firewall, malware scanning, backups, and monitoring services, shall be temporarily suspended until payment is received.
3.2.3 Termination of Agreement After Fourteen-Day Period
If payment remains outstanding fourteen (14) days subsequent to the initial due date, the service plan shall be deemed null and void and the Agreement will be Terminated. The Provider will engage in reasonable efforts to facilitate the Client's transition away from the Provider's services.
The subscription price may vary based on several website-specific variables, including but not limited to, the number of extensions in use and other technical factors. Such variations may occur automatically and will be reflected in the subsequent billing cycle. It is the Client's responsibility to be aware of these variable factors that may affect the subscription price.
3.3.1 Notification of Provider-Initiated Price Changes
Provider shall notify the Client of any provider-initiated price changes at least thirty (30) days prior to the commencement of the subsequent billing cycle. Client's continuation of the Services following such notification shall constitute acceptance of the new pricing structure.
3.4.1 Invoicing
Provider will issue invoices to Client electronically. Invoices are due upon receipt.
3.4.2 Payment Method
Automatic Payments
Client agrees to provide valid and updated credit card information or bank details for automatic ACH transfer. Payments shall be processed automatically at the beginning of each billing term as defined by the Payment Schedule.
Payment Updates
It is the Client's responsibility to keep payment information current. Failure to update payment information may result in service suspension as outlined in Section 3.2.
Provider reserves the right to audit Client's use of the Services to ensure compliance with the payment terms of this Agreement. Such audits will be conducted in a manner designed to minimize any impact on Client's operations.
All payments to Provider are non-refundable except as expressly provided in this Agreement or as required by applicable law.
For the purposes of this Agreement, "Confidential Information" refers to any non-public data, information, or material proprietary to either Party or designated as Confidential Information by either Party at the time of its disclosure. This includes, but is not limited to, technical processes, access credentials, software code, business strategies, client lists, financial information, and any data collected from users.
4.1.1 Exclusions
Confidential Information does not include information that is already publicly known, was independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information, or was already known by the receiving Party prior to the time of disclosure.
Both Parties agree to maintain all Confidential Information in strict confidence and to take all reasonable precautions to prevent unauthorized disclosure or use.
4.2.1 Permitted Disclosures
Confidential Information may be disclosed only to employees, agents, or subcontractors who need to know such information for the purposes of this Agreement and who are bound by confidentiality obligations no less restrictive than those set forth herein.
Provider shall adhere to all applicable federal, state, local, and international data protection and privacy laws and regulations ("Data Protection Laws") concerning any personal data collected, processed, or stored in the course of providing the Services.
4.3.1 Data Security Measures
Provider shall implement and maintain reasonable and appropriate technical and organizational security measures to protect against unauthorized or unlawful processing, accidental loss, destruction, or damage to personal data.
In the event of any breach or suspected breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data, the Provider shall promptly inform the Client and take reasonable actions to remediate the situation in accordance with Data Protection Laws.
The receiving Party agrees to indemnify the disclosing Party against any loss or damage that may occur due to the intentional unauthorized disclosure of Confidential Information. This indemnification does not extend to accidental data breaches or unauthorized disclosures caused by third-party software and services used by the Provider in rendering the Services.
The obligations set forth in this Article 4 shall survive the termination or expiration of this Agreement for a period of one (1) year.
5.1.1 General Limitation
To the maximum extent permitted by applicable law, Provider shall not be liable for any indirect, incidental, special, consequential, or punitive damages, or any loss of profits, revenue, data, or data use.
5.1.2 Specific Exclusions
Provider will not be held liable for any compromises to the website’s security, including but not limited to unauthorized access, data breaches, or other cyberattacks, except to the extent that such compromises are the direct result of Provider's willful misconduct or gross negligence.
5.1.3 Caps on Liability
Provider’s maximum liability for any damages arising out of or related to this Agreement or any SOW, whether in contract or tort, or otherwise, shall in no event exceed, in the aggregate, the total amounts actually paid to Provider for the Services under the respective SOW that is the subject of the claim.
5.2.1 General
Client agrees to indemnify, defend, and hold Provider and its officers, directors, agents, and employees harmless against any and all losses, liabilities, obligations, damages, lawsuits, arbitrations, claims, demands, and expenses (including, but not limited to, reasonable legal and professional fees) arising from or due to any breach of this Agreement by Client.
5.2.2 Notification and Cooperation
Provider shall promptly notify Client in writing of any action, claim or proceeding brought against Provider in respect to which indemnity may be sought from the Client. Client will have the right to control the defense thereof, provided that Provider may participate in said defense at its own expense using counsel of its own choice.
5.3.1 General
Provider agrees to indemnify, defend, and hold Client and its officers, directors, agents, and employees harmless against any losses, liabilities, obligations, damages, lawsuits, arbitrations, claims, demands, and expenses (including, but not limited to, reasonable legal and professional fees) arising from gross negligence or willful misconduct on the part of Provider.
5.3.2 Notification and Cooperation
Client shall promptly notify Provider in writing of any action, claim, or proceeding brought against Client in respect to which indemnity may be sought from Provider. Provider will have the right to control the defense thereof, provided that Client may participate in said defense at its own expense using counsel of its own choice.
The provisions of this Article 5 shall survive the termination or expiration of this Agreement.
6.1.1 General
Either party may terminate this Agreement or any Statement of Work (SOW) for any reason by providing written notice to the other party in accordance with the notice provisions set forth in this Agreement.
6.1.2 Ongoing Service
In the event of termination or cancellation of a plan by either party for convenience, the Services shall continue through the end of the paid period, as outlined in Article 3.
6.1.3 No Refunds
Except as otherwise provided by applicable law, no refunds will be provided upon termination for convenience by either party.
6.2.1 Material Breach
Either party may terminate this Agreement immediately upon written notice if the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of receiving written notice thereof.
6.2.2 Insolvency
Either party may terminate this Agreement immediately upon written notice if the other party becomes insolvent, files for bankruptcy, or undergoes similar financial distress.
6.3.1 Immediate Discontinuation of Services
In the event that payment is not remitted by the stipulated due date, all work pertaining to the website shall be unconditionally and immediately suspended.
6.3.2 Seven-Day Service Suspension
Should payment remain outstanding for a period of seven (7) days subsequent to the original due date, all services, including but not limited to firewall, malware scanning, backups, and monitoring, shall be placed in a state of suspension until payment is duly received.
6.3.3 Termination of Service Plan
Failure to remit payment within fourteen (14) days following the designated due date, the service plan shall be deemed null and void. In such an event, the Provider shall undertake reasonable efforts to assist the Client in the disengagement and transition away from the Provider's services.
6.4.1 Definition
"Force Majeure" shall mean any event beyond the reasonable control of either party, including but not limited to acts of God, war, flood, fire, labor disputes, strikes, epidemics, pandemics, or governmental restrictions.
6.4.2 Non-Liability
Neither party shall be considered in breach of this Agreement to the extent that performance of their respective obligations is prevented by a Force Majeure event.
6.4.3 Notification
The affected party must notify the other party in writing within five (5) business days of becoming aware of the Force Majeure event, outlining the nature of the event and its expected duration, as well as plans to mitigate its impact.
6.5.1 Obligations
Upon termination, all obligations of the parties shall cease, except for those expressly stated to survive the termination of this Agreement.
6.5.2 Payment
Any payment obligations incurred prior to the effective date of termination shall survive and be immediately due and payable unless otherwise specified.
6.5.3 Return of Property
Each party shall return or, at the other's request, destroy any of the other party’s Confidential Information in its possession.
Clauses that by their nature should survive the termination or expiration of this Agreement, including but not limited to confidentiality, limitation of liability, and indemnification clauses, shall survive.
6.7.1 Eligibility Audit
If the Client's website fails the eligibility audit as described in Article 7, this Agreement will be terminated immediately upon written notice from the Provider.
6.7.2 Fees
In the case of such termination, the Client will be charged the assessment fee specified in Article 7, which is non-refundable.
7.1.1 Initial Onboarding
Upon the Client's initiation of the Services, the first month will include an onboarding period lasting 2-3 weeks. The first activity during this period will be an eligibility audit.
7.1.2 Audit Details
The eligibility audit will review specific variables such as platform version, integrity, number and quality of extensions and themes, hosting environment, and overall website health. No core maintenance, security, or support services will be active during this audit phase.
7.1.3 Audit Outcome
If the Client's website passes the eligibility audit, the Provider will proceed to the onboarding phase. This phase will include implementing security hardening measures on the server and setting up any third-party tools used to secure the site. The core maintenance, security, and support services will only start after the successful completion of the onboarding phase.
7.1.4 Failure of Audit
If the Client's website fails the eligibility audit, the Client will be charged an assessment fee of $500. This fee covers the costs incurred during the eligibility audit and is non-refundable. Any excess amount from the first month's payment will be refunded to the Client. Additionally, the Agreement will be terminated upon failure to pass the audit.
7.1.5 Notification
The Provider shall notify the Client in writing of the audit results and any resulting fees or subsequent steps within five (5) business days following the completion of the audit.
7.2.1 Scope
The Client agrees not to engage, directly or indirectly, in any business activities that would compete with the Provider for a period of twelve (12) months following the termination or expiration of this Agreement.
7.3.1 Law
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington.
7.3.2 Jurisdiction
The courts located within the State of Washington shall have exclusive jurisdiction over any disputes arising out of or related to this Agreement.
7.3.3 Dispute Resolution
In the event of a dispute arising under or relating to this Agreement, the Parties agree to first attempt to resolve the matter through good faith negotiation. If negotiation is unsuccessful, the Parties agree to participate in mediation before a mutually agreed-upon mediator. Should mediation fail to resolve the dispute, either Party may then proceed to seek legal remedy through the courts located within the State of Washington.
7.4.1 Language Availability
All Services provided under this Agreement, including but not limited to communications, technical support, and documentation, will be conducted and delivered exclusively in English.
7.4.2 Client Responsibilities
The Client is responsible for understanding the terms of this Agreement and any communications from the Provider. If the Client is not proficient in English, it is the Client's responsibility to seek appropriate translation or interpretation services.
8.1.1 Identification
The Provider may utilize third-party tools and software, including but not limited to Sucuri, Sansec, Codeguard, Wyomind, GoodAccess, Github, and Bitbucket, to facilitate the provision of the Services described herein.
8.1.2 Selection
The Provider reserves the right to select the third-party tools that are most appropriate for delivering the Services and to modify the list of tools at its sole discretion. Any changes in the third-party tools being used will be communicated to the Client in writing.
8.1.3 Data Sharing
The Provider may share necessary data with these third-party services, in compliance with applicable data protection and privacy laws, for the sole purpose of delivering the Services.
8.2.1 Licensing
The Provider shall ensure that it has the appropriate licenses, permissions, or agreements to use any third-party tools involved in providing the Services. All licenses for third-party tools and services are non-transferable. 8.2.2 Compliance
The Provider will adhere to the terms and conditions or end-user license agreements of any third-party tools used in providing the Services. 8.2.3 Termination and Uninstallation
Upon termination of this agreement, the Provider shall ensure that all third-party software installed and used as part of providing the Services is uninstalled, unless the Client obtains their own license for such software.
8.3.1 No Liability
The Provider shall not be liable for any damage, loss, or inconvenience suffered as a result of the use, access, or interaction with third-party tools, except to the extent required by applicable law.
8.3.2 Client’s Responsibility
The Client acknowledges that the third-party tools are not owned or controlled by the Provider and agrees to indemnify and hold the Provider harmless from any claim arising out of or related to the third-party tools, including but not limited to any liabilities or expenses arising from all claims, losses, damages, suits, judgments, litigation costs, and attorneys’ fees.
8.4.1 Security Measures
The Provider will endeavor to select third-party tools that comply with industry standards for data security.
8.4.2 Security Breach
In the event of a known security breach affecting any third-party tools, the Provider shall notify the Client in accordance with applicable laws and regulations.
Clauses that by their nature should survive the termination or expiration of this Agreement shall continue in full force and effect.
The Provider is in the process of developing a service dashboard that will allow the Client to track and view activities related to the Services provided under this Agreement. The dashboard will display activities such as software upgrades, maintenance work, backups, malware scans, and downtime. The Client will also be able to interact with the Provider and initiate support requests.
The Provider warrants that it will make reasonable efforts to ensure the accuracy and functionality of the service dashboard. However, the Provider does not guarantee uninterrupted availability or flawless operation of the dashboard. The Client acknowledges that technical issues, maintenance, and updates might occasionally affect the dashboard's accessibility and functionality.
Some functionality and data in the dashboard depend on third-party Application Programming Interfaces (APIs) and no guarantee or warranty is given regarding these third-party tools, as outlined in Article 8.
Any notice or communication required or permitted under this Agreement shall be provided in writing and shall be deemed effective upon delivery, if delivered in person, by courier, by email, or by certified mail, return receipt requested, to the respective addresses provided by the Parties in this Agreement.
Communication between the Parties may be conducted electronically via email. However, the Provider shall not be responsible for any technical issues, spam filters, or service unavailability that might prevent the Client from receiving emails. It is the Client's responsibility to ensure that their email system is configured to receive communications from the Provider.
11.1.1 Supersedes Previous Agreements
This Agreement, along with any schedules, exhibits, or other attachments, constitutes the entire agreement and understanding between the parties and supersedes all prior or contemporaneous agreements, proposals, negotiations, discussions, or communications, whether oral or written, related to the subject matter hereof.
11.1.2 No Oral Modifications
This Agreement may not be explained or supplemented by any oral agreement, course of dealing, or performance, or any other matter not set forth or referenced in this Agreement.
11.2.1 Writing Requirement
No amendment, modification, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.
11.2.2 Notification
Any amendments to this Agreement must be communicated to both parties in a timely manner and shall be subject to the same consent and procedural requirements as this initial Agreement.
11.3.1 No Waiver
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver of that provision or the right to enforce it at any subsequent time.
11.3.2 Written Waivers
Any waiver of a breach or violation of any provision of this Agreement must be in writing and signed by the party granting the waiver.
11.4.1 Invalidity of Provisions
If any provision of this Agreement is held to be unenforceable or invalid, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law, and the remaining provisions shall continue in full force and effect.
11.5.1 Continuance
Any provision of this Agreement that, by its nature, should survive termination or expiration of this Agreement, shall continue in full force and effect subsequent to and notwithstanding such termination or expiration.
For all matters related to this Agreement, the Client may contact the Provider at the following address:
Provider Name: Todd Lininger Design, LLC
Address: 7700 23rd Ave NW, Seattle, WA 98117
Email: [email protected]
Phone: +1-206-333-9001
The Client's contact information shall be as provided during the sign-up process for the Services.
This Agreement shall not be construed to create any obligations beyond those expressly set forth herein. The Parties acknowledge that they have read and understood this Agreement and voluntarily accept its terms and conditions.