In this document we try to write everything in plain English as much as possible. To do this, we frequently use terms like “we” and “you”. “We”, “us”, “our”, “the company”, “contractor”, and “WHD” means West Hill Digital LLC, a Limited Liability Company formed in the state of Massachusetts. “You”, “your”, “customer(s)”, or “client(s)” in this document is the subscribers, purchasers and users of services provided by West Hill Digital LLC.
The following agreement (“MSA,” “Terms”, “Services Agreement”, “Master Services Agreement” or “Agreement”) is entered into by and between West Hill Digital LLC, a MA Limited Liability Company (referred to as the “Contractor”, “We/we”, “Us/us”, “Our/our”, “Company/company” or “WHD”), and you (referred to as “Client”, “Customer/customer”, “You/you” or “Your/your”). This Agreement is made effective as of the date of electronic acceptance or signature.
This MSA was last updated on August 4, 2024. Your engagement and hiring of us for any project or individual services provided affirms your agreement to these terms. We reserve the right to change them at any time. Changes to our terms will be updated and posted on this website. If our terms change substantively for a service we provide to you, we’ll notify you via the email address we have on file. If you do not agree with our updated terms, you are able to cancel your subscription or service under the previous terms of service cancellation conditions.
General Definitions and Terms
Hourly Rate and/or Wages
Throughout this document, our website and services, reference may be made to our current hourly rate. We will provide you with our current hourly rate upon request. Our hourly rate is defined as the rate charged per hour (60 minutes) in U.S. Dollars (USD) and is subject to change without notice.
Payments
We use a third party payment processor, Stripe, for our primary billing processing. Stripe will collect your payment information and process your payment. We do not collect, hold, use, share or have full access to your payment information. We are not responsible for the collection, use, sharing or security of your billing information by Stripe.
You hereby represent and warrant that you have the legal right to use the payment method(s) in connection with any purchase and that the information that you supply to us and to the third party payment processor(s) is true, correct and complete.
We accept all major credit cards (Visa, Mastercard, Discover, American Express) and ACH/bank account (US only) transfers through Stripe. Stripe must be used as your payment method with a valid payment method on file to automatically capture your payment. Alternative payment methods may be accepted at our discretion such as pay by invoice via Stripe or a mailed check and may include an applicable surcharge.
Payment Schedule
Our standard payment terms, unless specified differently on the proposal, quote or Scope of Work, are:
- 50% of the Cost of Proposed Scope of Work due as a non-refundable deposit upon execution of the Proposal of Services and this Master Services Agreement
- Remaining 50% of the Cost of Proposed Scope of Work due at website launch or 30 days after project has been suspended (see 2.4 – Delayed, Suspended, Abandoned Projects below)
- Any amount of the Change Budget utilized is due at website launch (typically included on the final invoice)
At our discretion in certain cases, we may request that payments be made at certain additional milestones. If milestone payments are necessary, they will be specifically detailed in the Proposal of Services.
Payment Methods
Payment to us can be made using ACH, or major credit card. Postdated checks are not an acceptable form of payment.
Late Payment, Chargebacks, Failure to Pay and Collections
Failure of the client to fully pay any outstanding balances of their account of (14) days or more, such as an invoice that is fourteen days past its due date without full payment, will deem your account past due. Accounts with a past due status will result in the immediate suspension of any product or service without prior notice. Service may only resume and a suspension be lifted upon full payment, including any interest or fees.
Balances for services that are overdue by 30 days or more may result, at our discretion, in the permanent deletion of files, data, records, and information related to those services stored on our servers, storage locations, backup systems, and service operation systems. There is no guarantee that restoration will be possible. If restoration of an archived copy of your data is feasible, a one-time fee of $50 will apply.
Collections
We reserve the right to accrue interest or add late fees up to 5% of the outstanding total balance on accounts that are past due unless prohibited by law. Any suspension or termination of services does not relieve you from paying past dues.
We reserve the right to provide your balance to a third-party collection agency as a debt to collect overdue payments if in a past due status. You shall be held liable for any reasonable additional costs and fees associated with this debt such as but not limited to legal costs, attorneys’ fees, court costs and collection agency fees.
Chargebacks and Transaction Disputes
If a you or your card’s provider issues a chargeback on a payment made to WHD for a product or service, the service will immediately be suspended or terminated without prior notice. Reestablishment of the product or service will require the chargeback dispute to be canceled or in a closed state, a full repayment of the amount charged back if you were awarded the chargeback, a minimum of a 10% fee of the original amount for the chargeback and a written explanation.
Termination
This Agreement may be terminated immediately by either party upon written notice for any of the following:
- Upon five (15) days prior written notice by either party to the other party, or
- If the other party defaults in the performance of any material provision of this Agreement, which default is not cured within thirty (30) days after written notice from the non-defaulting party.
If a project is elected to be terminated prior to completion by either party, we will create an estimate of the percentage of the scope of work that has been completed. If the percentage of work completed is less than the percentage of the project that has been paid, we will issue a refund for the difference. If the percentage of the project that has been completed is more than the percentage of the project that has been paid, an invoice will be issued for the difference.
General Refunds
We will not issue refunds for past payments, services already rendered, renewals that have already been processed or any purchases made on this website or through our billing platform. We do not offer refunds for any unused bundled support time or prepaid labor hours.
We will not be able to issue you a refund of the purchase price that you paid if we cancel your purchase.
Intellectual Property Rights (Who Owns What)
“Intellectual property rights” means all patents, rights to inventions, copyright (including rights in software) and related rights, trademarks, service marks, trade names, internet domain names, rights to goodwill or to sue for passing off, rights in designs, database rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world.
If your project is to use WordPress as a content management system (CMS), WordPress and its associated software are “open source,” distributed under the GNU General Public License. We use WordPress to power your website, but neither of us “own” WordPress or the third-party plugins used to add features to your website. When you hire us to build your website, you are not purchasing WordPress, you are retaining our services to create a customized website using the WordPress system.
When we utilize third party materials, such as but not limited to images, fonts, plugins, or other content that are licensed for use on your website by a third party, that party retains ownership of the content in question according to the terms of their own license agreements.
Upon request, we will provide the source files for any custom code or artwork that was created solely for your project. You own all intellectual property rights of text, images, site specification and data you provided, unless someone else owns them.
We own any intellectual property rights to anything we have developed prior to, or separately from this project. During the process of developing your project, we may create design, code, functionality, and processes. While this work is used on your website, we retain ownership of these as our intellectual property and reserve the right to use them in future projects. This re-use helps us serve our future clients better, just as your website will benefit from what we have learned and developed in previous projects.
Project Labor and Services Terms
Project Definition
You are hiring us to complete your project and/or work according to the specific scope of work we described in a proposal, quote or estimate. The proposed cost of the project includes only this work. When you hire us, we are independent “work for hire” contractors and not employees of you or your business.
Proposal of Services
The Proposal of Services 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. Our Proposal of Services may be in the format of a project proposal, estimate and/or quote. 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 Proposal of Services 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 Proposal of Services, the terms of the Proposal of Services shall be binding.
Communication
By hiring us, completing your purchase or signing up for a subscription, you consent to receive electronic communications from us, including any necessary legal notices. We will communicate with you through the email address you provided at the time of your purchase.
Primary Contact
You shall designate one (1) person who will act as the primary liaison for all communications and approvals regarding your website or the services provided. WHD is not responsible for the actions or consequences performed by any additional people, users and third-parties you authorize and/or accounts added to your website.
Availability and Time Frames
Work will be done during normal business hours, decided by WHD and we will set our own work schedule for the task(s). We are available for communication via email or agreed upon other medium. We will generally respond within (1) business day however no communication response timeframe is guaranteed for any project, hourly or on-request work.
Our timeframe of completion can be affected based on a number of factors for each project, including but not limited to the complexity of your project, our current workload, material availability, delays on materials, approvals or other required mediums from you or third-party stakeholders, additions to the Proposal of Services, and any problems that might arise as we work on your project. Unless specifically defined in the Proposal of Services, we do not guarantee website launch by a specific date.
We have an active queue of work and we do not place your project in that queue until your deposit, if required, has been received and all requested materials are provided. 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.
Availability
We are generally available to provide services, support and communication via our primary means of communication (support portal on this website and email) Monday through Friday 8AM-4PM Eastern time, excluding weekends and holidays (subject to change without notice). We may contact you via phone or plan a digital meeting software such as Google Meet and Zoom if agreed upon, however methods of communication other than our primary method is solely at our discretion.
Delayed, Suspended, 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 30 days without a reasonable cause as determined by us.
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.
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.
Rush Projects
Projects requiring a “Rush”, moving to the front of our workload queue or requiring a specific deadline that requires labor above our normal business hours, will typically incur at least a 35% 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.
Changes
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 will notify you of any additional cost to perform your change request. When you approve this scope and cost, the amount will, at our discretion, be payable immediately or on the final project invoice.
The Project
Development Compatibility
In general, a project or work will be designed and/or developed for viewing on modern screens for desktops, laptops and mobile devices (cell/smart phones and tablets). We test and use methods for compatibility with the current release for major web browsers such as Google Chrome, Mozilla Firefox, Apple Safari. We cannot guarantee all features or visuals to perform identically across these web browsers as each one has different acceptance timelines for new features and methods used in website development such as CSS. General compatibility of our work is limited to current releases of viewing on modern screens for desktops, laptops and mobile devices.
Launch, Services and Changes
In general, a project will include launch services such as but not limited to publishing a website to be publicly facing (“live”) or moving a website to your webhost.
The project described by the Scope of Work in the Proposal of Services 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.
Upon conclusion of the project, we are not responsible for anything that happens to your website or any of its contents, functionality, usability or appearance.
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.
- You need to make a change or addition to the contents, appearance, functionality to the website after the conclusion of the project.
- You or a third party add code or a plugin to your site that affects its operation.
- You need assistance or training in using or making modifications to the website.
- 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.
Third-Party Services
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 and alterations to the website or project prior to the conclusion of the project. WE CANNOT BE RESPONSIBLE FOR THE WORK OF A THIRD PARTY. Should additional services or labor be necessary due to any work performed by a third party, these services are billable at our current hourly rate in addition to the original project’s amount.
Third Party Services and Content
If you choose to employ any third party services or companies, such as but not limited to providing SEO (Search Engine Optimization), marketing, social media, maintenance, development, management, content writing services, we are not responsible or liable for any changes, modifications, consequences resulting from using such services or companies.
Should our services become necessary due to any work, access or problems caused by a third party you enacted that falls outside the listed services offered within your purchased services from us, these will be billed at our current hourly rate.
We may recommend or implement plugins, themes or other materials that are created by third parties to fulfill or resolve a request or need from you. We are not liable for any third-party services or content, regardless of the recommendation or implementation.
Theme and Plugin Licenses and Updates
One of the most important strengths of WordPress is its immense ecosystem of third-party add-on software called themes and plugins. Some of these require no specific licensing for use on your website. However, we often use premium WordPress themes and plugins that require an annual licensing fee for ongoing updates, security patches and support.
- Premium themes and plugins used on your website are provided at their current software version.
- Future updates and security patches for premium themes and plugins are covered as part of our website management service.
- If you choose to not use our website management service, you are responsible for obtaining your own license for any and all plugins, themes, or services used on the website to continue their use and/or obtain any updates, security patches and support.
Search Engine Optimization (SEO)
As part of your project, we guarantee that your site will be able to be indexed by search engines like Google and others at the time of launch and that general SEO practices were followed in any work performed. Additional SEO services are not included in your project, including but not limited to submitting them to search engine platforms, configuring a SEO plugin or system, implementing SEO analysis and tracking unless specifically itemized in the proposal of services. Your ranking and placement 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 IN WRITING TO DO SO.
Policy Management & Compliance
Depending on the nature of your site and your location, legal pages such as Terms of Use, Privacy Policy, Return Policy, etc., may be mandated by government entities, vendors, or licensing agencies. It is your responsibility to determine whether your website requires any such legal pages and policies and how to display them.
If we provide any standardized privacy policies and terms of use or refer you to a third party policy system, we expressly do not guarantee that this language complies with any governing body’s requirements. You are hereby informed and you acknowledge that you should have any policy or language reviewed and approved by an attorney. You agree we will not be held liable for any failure to provide or comply with any such policies or on your website.
If your website is required to and was created to comply with requirements, such as but not limited to HIPAA, FERPA, WCAG, ADA, CCPA, CalOPPA, and GDPR it is your responsibility to inform us of the specific compliance requirements that were previously established, such as when your website was created, and are required to be maintained. Additional measures required by us as part of our services to maintain compliance are subject to being billed at our current hourly rate. We provide no guarantees that using our services will provide you with legal compliance of your website to any applicable laws or regulatory compliances, it is your responsibility to verify compliance and have it reviewed by legal counsel.
WARRANY AND LIMITATION OF LIABILITY
Warranty
Our services and products are sold and provided “as is”, meaning we do not make any representations or warranties, either express or implied, without limitation. We cannot guarantee that our services will meet your requirements or that our services will be 100% available and are not responsible for any loss of content, material, revenue or any damages incurred.
Limitation of Liability
We provide our products and services with best faith effort. We’ll do our best to provide everything that is stated or advertised on our website. There is are always circumstances that something may differ or could go wrong (for example backups may fail, the datacenter where your website is kept catches on fire, your site may be hacked or corrupt beyond repair, your site may go down, we may be unreachable, etc.). In these cases we will do our best to resolve them as quickly as possible. In no event will we be liable for any lost profits, savings, incidental,. indirect, special or consequential damages due to your use of our services or the breach of this agreement.
In no event will the collective liability of the company, its affiliates and its licensors, service providers, employees, agents, officers, and directors be liable for damages of any kind, under any legal theory, for harm caused by or related to the customer’s services or inability to utilize the services, including any direct, indirect, special, incidental, consequential, or punitive damages, including but not limited to personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
The foregoing does not affect any liability which cannot be excluded or limited under applicable law.
Notwithstanding anything else in this master services agreement, the maximum aggregate liability of the company or any of its employees, agents, contractors, or affiliates, under any theory of law should not exceed the amount of fees it has collected on the client’s account in the last six months.
Indemnity
You agree to indemnify and hold us harmless for any damages or lawsuits related to our services and that all services and facilities are used at your own risk. We specifically disclaim all warranties of merchantability and fitness for a particular purpose. We shall in no even be held liable for any loss, loss of data, loss of revenue or damages.
You agree to indemnify and hold harmless WHD, its subsidiaries, contractors, employees and affiliates and each of their respective directors, officers, employees, shareholders and agents (each an “Indemnified Party”) against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or related to the Agreement, Client’s use of the Services, breach of any confidentiality obligation or any alleged infringement of any trademark, copyright, patent or other intellectual property right and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party, in connection with investigating, defending, or settling any Loss, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
Force Majeure
We shall not be considered in breach of this agreement if we are unable to complete the services or any portion thereof due to events beyond our control, including but not limited to fire, earthquake, labor disputes, power or grid failure, systems or telecommunications/internet failure, acts of God or public enemy, pandemics, acts of war, terrorist attacks, labor strikes, death, flood, illness, incapacity, or compliance with any local, state, federal, national, or international law, governmental order, or regulation (collectively, “Force Majeure Events”). In the event of a Force Majeure Event, we will endeavor to notify you of our inability to perform or any delays in providing our services.
If any part fails to perform any of its obligations under the agreement due to a “Force Majeure Event”, that party shall not be held liable for any loss or damage which may be incurred as a result of such event. Should the event continue for longer than a (30) day period, or such period as previously agreed upon, the party adversely affected shall have the option to terminate the agreement without any further liability or charges than those already accrued prior to the effective termination date. In no event shall a Force Majeure Event have the effect of discharging or postponing Client’s payment obligations under the Agreement.
Governing Law, Severability and Dispute Resolution
The laws of the state of Massachusetts govern the rights and obligations of the Client and the Contractor under this Contract, without regard to conflict of law provisions. These terms shall not be governed by the United Nations convention on contracts for the sale of international goods, the Uniform Commercial Code, nor Incoterms.
If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
You agree that we each may bring claims against the other only in our or your capacity and not as a plaintiff or class member in any class or representative action.
In the event of any dispute or disagreement with respect to the meaning, effect or interpretation of this Agreement or in the event of a claimed breach of this Agreement, the parties hereto agree that such dispute shall be determined through mediation. Unless otherwise mutually agreed, the location of the mediation will be in Worcester County, Massachusetts. The client will be responsible for the costs of the mediation. The parties agree to cooperate fully with the mediator in good faith in order to reach a mutually satisfactory resolution of the dispute. If the dispute is not resolved within 60 days after it is referred to the mediator, either party has the option to litigate the dispute in a court of law located in Worcester county, Massachusetts.
All notices with respect to these terms may be sent via email to [email protected].