Site Doctor Service Agreement
This SITE DOCTOR SERVICE AGREEMENT ("Agreement") is an
agreement between Webionic.com ("Company") and the party
set forth in the related order form ("Customer" or "you")
incorporated herein by this reference (together with any subsequent
order forms submitted by Customer, the "Order") and applies
to the purchase of all services ordered by Customer on the Order
(collectively, the "Services"). The parties understand,
acknowledge and agree that this is an online agreement which is
being entered into in conjunction with the Order.
PLEASE READ THIS AGREEMENT CAREFULLY.
SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN
CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE
DESCRIPTION AND THIS AGREEMENT.YOU ARE AGREEING TO BE BOUND BY THE
TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED
BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY'S USAGE POLICIES.
YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
YOUR AGREEMENT TO THE TERMS HEREOF ALSO CONSTITUTES YOUR AGREEMENT
TO THE USER AGREEMENT AND OTHER "TERMS OF SERVICE" LOCATED
- TERM AND TERMINATION
- Term of Agreement
This Agreement shall be effective as of the date set forth
on the Order and shall remain in force until thirty (30) days
after notification of service completion is provided to Customer,
which shall take place not later than thirty (30) days after
the Order ("Delivery Date"). Company cannot
guarantee the Delivery Date but will use commercially reasonable
efforts to perform the Services in an efficient and timely
This Agreement may be terminated by either party upon written
notice to the other, if the other party breaches any material
obligation provided hereunder and the breaching party fails
to cure such breach within forty-eight (48) hours of receipt
of the notice. This Agreement may be terminated by Company
(i) immediately if Customer fails to pay any fees hereunder;
or (ii) if Customer fails to cooperate with Company or hinders
Company's ability to perform the Services hereunder.
- COMPANY'S AND CUSTOMER'S RESPONSIBILITIES
- Scope of Work
Customer hereby retains the services of Company to perform
malware removal and/or software upgrades in accordance with
The Services are not available to hosting accounts that are
in violation of the Terms of Service, including but not limited
to, violations of file count and/or database size limitations.
- Company Responsibilities
Company will make a good faith effort to locate and remove
any malware on Customer's account and upgrade any script/application
available in the SimpleScripts tool in accordance with the
Order. Company will provide an email notification to
Customer upon completion with a summary of Company's actions
taken and malware found. Company agrees to notify Customer
promptly of any factor, occurrence, or event coming to its
attention that may affect Company's ability to meet the requirements
of this Agreement, or that is likely to occasion any material
delay in the Services.
- Customer Responsibilities
Customer agrees to perform all tasks assigned to Customer
as set forth in this Agreement or a Change Order, and to provide
all assistance and cooperation to Company in order to complete
fulfillment of the Services. Company shall not be deemed
in breach of this Agreement, the Services, a Change Order,
or any milestone in the event Company's failure to meet its
responsibilities and time schedules is caused by Customer's
failure to meet (or delay in) its responsibilities and time
schedules set forth herein, a Change Order, or this Agreement.
In the event of any such failure or delay by Customer (i)
all of Company's time frames, milestones, and/or deadlines
shall be extended as necessary; and (ii) Customer shall continue
to make timely payments to Company as set forth in this Agreement
and any Change Order(s) as if all time frames, schedules,
or deadlines had been completed by Company.
- MALWARE REMOVAL
The malware removal portion of the Services consists of:
- Review of Customer's account to locate malicious scripts
and code injections.
- Removal of detected malware by file editing to remove
malicious code or by restoration of known good files from
- Assistance with restoration of site functionality, if
necessary, within the standard scope of Company technical
- Limitation of the Services
Company will not:
- Attempt manual reprogramming of file code to correct
- Make any modifications to compromised databases.
- Make any representation or guarantee indicating that
the Services will detect and remove 100% of any malware
- Make any representation or guarantee that the Services
will prevent any future compromise of the account.
- SOFTWARE UPGRADES
The software upgrade portion of the Services consists of:
- Update of installed applications/scripts to the latest
version available through the Simple Scripts tool.
- A review of the account and installed applications/scripts
and recommendations for changes to improve account security.
- Limitation of the Services
Company will not:
- Upgrade or modify any applications not available through
the SimpleScripts tool.
- Make new modifications or re-insert any custom modifications
to application or theme default programming.
- Make any representation or guarantee that any addon,
theme, or plugin in use will be fully compatible or functional
with upgraded software.
- Make any modifications to any addon, theme, or plugin
programming in order to facilitate functionality with
In the event that Customer's account is compromised within thirty
(30) days from the date that notice of completion is provided,
Company will perform one additional execution of the Services
at no cost to Customer. Company must be notified of the
compromise of the account within the thirty (30) day maintenance
period in order for this provision to apply; Company will not
monitor the account. This provision is also void if Customer
restores any compromised backup files to the account.
- PAYMENTS AND REFUNDS
The total price for all of the work set forth in the Order
is $199.99 per account. If the Services are ordered for a
Reseller acccount, the primary reseller account and each individual
resold account shall be considered separate accounts for billing
purposes. Unless otherwise stated in the Order, this
fee is due and payable upon placing the Order and Company
shall have no obligation to perform any work until payment
is received and such funds are cleared from the relevant financial
A full refund is available upon request before initiation
or up to seven (7) days after notification of completion of
the Services. Any work performed will be reversed using
available account backups if the refund is requested after
notification of completion. Use of any files modified
by Company due to performance of the Services after a refund
is issued shall be considered a material breach of this Agreement
and the Terms of Service and may result in actions up to and
including termination of the Customer's account.
- REPRESENTATIONS AND WARRANTIES
- Limited Warranty
Company represents and warrants that (1) Services shall be
performed in a workmanlike manner and with professional diligence
and skill; (2) Services will conform to the specifications
and functions set forth in this Agreement; (3) Company will
perform a second cleaning of Customer's account, if necessary,
as specified in Section 5 above; and (3) Company will perform
all work called for by this Agreement in compliance with applicable
laws. This warranty shall extend for the life of this
Agreement. This warranty does not cover changes to the Customer's
web site that are not a result of Company's error.
- Disclaimer of Other Warranties
COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET THE CUSTOMER'S
REQUIREMENTS OR THAT THE OPERATION OF CUSTOMER'S WEBSITE WILL
BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO
THE QUALITY AND PERFORMANCE OF THE WEB PAGES AND WEB SITE
IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT,
COMPANY PROVIDES ITS SERVICES "AS IS" AND WITHOUT
WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED
WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE
WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT,
PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT,
THE CONTENT, AND EACH PARTY'S COMPUTING AND DISTRIBUTION SYSTEM.
IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID,
OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL
BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT
THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
- Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM
COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS,
WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH
OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING
UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER
THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
THE MAXIMUM REMEDY AVAILABLE TO EITHER PARTY IS ANY AMOUNT
PAID BY CUSTOMER HEREUNDER. COMPANY MAKES NO WARRANTY OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD
PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT,
OR HARDWARE OBTAINED FROM THIRD PARTIES.
The parties agree to hold each other's Proprietary or Confidential
Information in strict confidence. "Proprietary
or Confidential Information" shall include, but is not
limited to, written or oral contracts, trade secrets, know-how,
business methods, business policies, memoranda, reports, records,
computer retained information, notes, or financial information.
Proprietary or Confidential Information shall not include
any information which: (i) is or becomes generally known to
the public by any means other than a breach of the obligations
of the receiving party; (ii) was previously known to the receiving
party or rightly received by the receiving party from a third
party; (iii) is independently developed by the receiving party;
or (iv) is subject to disclosure under court order or other
lawful process. The parties agree not to make each other's
Proprietary or Confidential Information available in any form
to any third party or to use each other's Proprietary or Confidential
Information for any purpose other than as specified in this
Agreement. Each party's proprietary or confidential
information shall remain the sole and exclusive property of
that party. The parties agree that in the event of use
or disclosure by the other party other than as specifically
provided for in this Agreement, the non-disclosing party may
be entitled to equitable relief. Notwithstanding termination
or expiration of this Agreement, Company and Customer acknowledge
and agree that their obligations of confidentiality with respect
to Proprietary or Confidential Information shall continue
in effect for a total period of three (3) years from the date
- FORCE MAJEURE
Neither party will be liable for, or will be considered to be
in breach of or default under this Agreement on account of, any
delay or failure to perform as required by this Agreement as a
result of any causes or conditions that are beyond such Party's
reasonable control and that such Party is unable to overcome through
the exercise of commercially reasonable diligence. If any
force majeure event occurs, the affected Party will give prompt
written notice to the other Party and will use commercially reasonable
efforts to minimize the impact of the event.
- RELATIONSHIP OF PARTIES
- Independent Contractor
Company, in rendering performance under this Agreement, shall
be deemed an independent contractor and nothing contained
herein shall constitute this arrangement to be employment,
a joint venture, or a partnership. Company shall be
solely responsible for and shall hold Customer harmless for
any and all claims for taxes, fees, or costs, including but
not limited to withholding, income tax, FICA, and workers'
- No Agency
Customer does not undertake by this Agreement, the Order or
otherwise to perform any obligation of Company, whether by
regulation or contract. In no way is Company to be construed
as the agent or to be acting as the agent of Customer in any
respect, any other provisions of this Agreement notwithstanding.
This Agreement shall be governed in accordance with the laws of
the State of Virginia. All disputes under this Agreement
shall be resolved by arbitration as set forth in Section 17 below
or by litigation in the courts of the State of Virginia including
the federal courts therein and the Parties all consent to the
jurisdiction of such courts, agree to accept service of process
by mail, and hereby waive any jurisdictional or venue defenses
otherwise available to it.
- AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall
inure to the benefit of the Parties hereto, their heirs, administrators,
successors and assigns.
Customer may not assign this Agreement or the rights and obligations
thereunder to any third party without the prior express written
approval of Company. Company reserves the right to assign
subcontractors as needed to this project to ensure on-time completion.
No waiver by either party of any default shall be deemed as a
waiver of prior or subsequent default of the same of other provisions
of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable
by a court of competent jurisdiction, such invalidity shall not
affect the validity or operation of any other term, clause or
provision and such invalid term, clause or provision shall be
deemed to be severed from the Agreement.
This Agreement constitutes the entire understanding of the Parties,
and revokes and supersedes all prior agreements between the Parties
and is intended as a final expression of their Agreement.
It shall not be modified or amended except in writing signed by
the Parties hereto and specifically referring to this Agreement.
This Agreement shall take precedence over any other documents
which may conflict with this Agreement.
- NO INFERENCE AGAINST AUTHOR
No provision of this Agreement shall be interpreted against any
Party because such Party or its legal representative drafted such
Customer and Company agree to make a good-faith effort to resolve
any disagreement arising out of, or in connection with, this Agreement
through negotiation. Should the parties fail to resolve
any such disagreement within ten (10) days, any controversy or
claim arising out of or relating to this Agreement, including,
without limitation, the interpretation or breach thereof, shall
be submitted by either party to arbitration in Spotsylvania County,
Virginia and in accordance with the Commercial Arbitration Rules
of the American Arbitration Association. The arbitration
shall be conducted by one arbitrator, who shall be (a) selected
in the sole discretion of the American Arbitration Association
administrator and (b) a licensed attorney with at least ten (10)
years' experience in the practice of law and at least five (5)
years' experience in the negotiation of technology contracts or
litigation of technology disputes. The arbitrator shall
have the power to enter any award that could be entered by a judge
of the state courts of Virginia sitting without a jury, and only
such power, except that the arbitrator shall not have the power
to award punitive damages, treble damages, or any other damages
which are not compensatory, even if permitted under the laws of
the State of Virginia or any other applicable law. The arbitrator
must issue his or her resolution of any dispute within thirty
(30) days of the date the dispute is submitted for arbitration.
The written decision of the arbitrator shall be final and binding
and enforceable in any court having jurisdiction over the parties
and the subject matter of the arbitration. Notwithstanding
the foregoing, this Section shall not preclude either party from
seeking temporary, provisional, or injunctive relief from any
- READ AND UNDERSTOOD
Each Party acknowledges that it has read and understands
this Agreement and agrees to be bound by its terms and conditions.
- DULY AUTHORIZED REPRESENTATIVE
If this Agreement is executed then each Party warrants that their
representative whose signature appears on such signature pages
is the duly authorized by all necessary and appropriate corporate
actions to execute this Agreement.
Webionic.com confirms this file current as of
1 January 2015.