Wagn Hosting and Consulting Agreement

This WAGN HOSTING AND CONSULTING AGREEMENT (“Agreement”) is entered into by and between GRASS COMMONS, a 501(c)(3) public education nonprofit registered in Oregon (“Contractor”) and the entity referred to in the Billing Contact section of the Registration Card (“Client”), effective as of the date upon which Contractor reviews and accepts Client registration, not to exceed three business days after submission.

 

DEFINITIONS

• Wagn is a free, open-source software application conceived and developed by Contractor.

RECITALS

The Contractor is engaged in the development of an open-source software application named Wagn, the provision of activation, hosting, and configuration of websites constructed within Wagn, and related consulting services to companies in need of such services; and,

The Client desires to engage the services of the Contractor, upon the terms and subject to the conditions set forth in this Agreement.

NOW, THEREFORE, in exchange for the mutual promises and covenants hereinafter set forth, the parties hereto agree as follows:

 

CONTRACTOR PRODUCT AND SERVICES

1. Site Setup and Activation.  The Contractor shall activate and configure the web site per the registration specifications and email Client an invoice and a link to schedule recurring payments.  Client shall schedule payment no later than ten business days following receipt of such invoice.
2. Hosting Package.  The Contractor shall serve as web host of the Wagn software for Client's Wagn website for the duration of the Hosting contract.  Contractor will also keep the Wagn software current, providing updates within one (1) week of the public release of a new stable Wagn version.  Contractor agrees to provide up to 1GB of bandwidth per month and up to 1GB of storage.  If Client's usage exceeds these boundaries, Contractor will notify Client and add a monthly surcharge of $20 for each 1GB bandwidth / 1GB storage supplement as needed to fulfill demand.

TERM

The terms of Hosting outlined in the Agreement shall be valid from for a period of three (3) months from the date of agreement by Client.  Further, the Hosting Agreement shall be automatically renewed for consecutive one-month periods unless Client has provided Contractor with a written cancellation notice at least 15 days prior to expiration of any term of this Agreement.  Client may upgrade Hosting Package at any time.  After the first three months on any given Hosting Package, Client may downgrade Hosting Package with a written request; the downgrade will be effective as of the nearest following half-month.

 

COMPENSATION

Payment for the first three months of Hosting is due at the time of execution of this agreement. Thereafter, Contractor shall invoice Client for all Hosting fees on a monthly basis, prorating to the nearest half-month where applicable.  The monthly Hosting base fees shall not change during the term of this agreement without mutual consent; however, these fees are subject to change, with at least 30 days advance written notice to Client, for all renewal terms hereto.  Any Hosting Fees not paid by the Client with 30 days of the due date shall accrue interest at the rate of 1.5% for each 30- day period, or portion thereof, that such amounts remain unpaid.   Hosting may be terminated or interrupted at will, without warning, by the Contractor for lack of payment.   If a site is deactivated for non-payment, all fees due in addition to a reactivation fee of $75 must be remitted before the site will be again made available. The Client agrees to pay all of the Contractor’s collection costs for unpaid amounts due hereunder, including reasonable attorney’s fees.

 

TECHNICAL SUPPORT

Included Support not considered Wagn Consulting

Contractor will provide the following support, without tracking the work hours as "consulting hours" to be counted off of tracked package support.

• Bug fixes for server errors—Defined as the emergency repair of any system operation that leads to server level errors, including but not limited to unexpected results within the system that render it unusable for the purpose for which it was designed.

• Fixing inaccessible or non-functioning user accounts. 

Support considered Wagn Consulting

• Designing, implementing, or repairing Wagneering solutions that encounter non-server-level problems.
• Configuring or altering configuration of permissions, roles, configuration cards, format cards, or WQL searches.
• Any training that does not involve implementing workarounds for non-Wagn-Consulting support issues as defined above.

Software Development and Server Configuration (not included)

The Client may desire functionality not possible via Wagn configuration but addressable through changes to the Wagn source code or adjustments to server configuration.  This agreement provides for no such changes outside of those described above, but Client may hire Contractor to provide such a service in an independent agreement.

 

ISSUE RESPONSE AND RESOLUTION

Response By Severity

Guaranteed response and resolution times for issues  is dependent upon the severity of

Hosting and Consulting Fees for any month in which response or resolution times exceed the maximum limits defined above will be discounted at Client's written request by the amount reached by the following formula: (actual time / target time) x 10%, up to 100% of the monthly fees.

 

Notification and Response Routes

Contractor will be available to Client for technical questions posed via email.  For all issues except for Severity 1 concerns discovered outside of business hours (9am-5pm MST), the initial inquiry should be an email addressed to support@wagn.org.  Initial emails regarding Severity 1 should contain the word "urgent" in the subject line.  Contractor may choose to respond to an email question via email back to the Client or via phone, at Contractor’s discretion.  For issues of Severity 1 or Severity 2, Client may also choose to phone Contractor, using the following number:  (303) 872-4520

 

The guaranteed response times above assume issue discovery during business hours.  Response time for Severity 1 issues discovered outside of those hours is also guaranteed, but the response time is tracked from Client's first placement of a phone call to Contractor.  The clock for response time for all other issues will begin at start of business on the following business day.  Unless directed otherwise, Contractor will treat the Client representative who sent the initial notification as the point of contact for the issue at hand.  Contractor reserves the right to alter the precise details of the preferred response routes but must do so in a manner that sustains or increases access to support and send written notification of the change to Client.

 

NETWORK ACCESS AVAILABILITY TARGET

The Contractor's website access availability target is to have the Contractor’s network upstream connectivity provided to Client available 99.9% of the time.  Website access unavailability consists of the number of minutes that the Contractor’s network is not available to the Client.  Network downtime is calculated commencing on the date and time on which Client or Contractor (whichever is first) records the problem in an email and ending on the Contractor’s confirmation that the network is restored. If the Contractor does not meet the 99.9% target for website access availability, the Contractor will, upon written notice from Client, credit the Client’s account for each cumulative hour of website access unavailability or fraction thereof in any calendar month the prorated charges for one day of the Contractor’s monthly recurring charges for the hosting access services based on standard pricing for the hosting-only package.  Customer may terminate this Agreement upon written notice, if within a thirty (30) day period, website access is unavailable cumulatively over fifteen (15) hours.

 

PLANNED MAINTENANCE AND UPGRADES

Downtime for planned maintenance and upgrades of up to 2 hours in any given month (not to exceed 5 hours a year) will not count as downtime against the network access availability target provided the maintenance or upgrade is announced to Client via email at least a week in advance, including an announced time range of no more than 4 hours.  Contractor will notify Client of any upgrade entailing interface changes visible to regular (non-administrative) users at least a week in advance and provide Client with a web address through which they can preview the upcoming changes and provide feedback.  If Client deems an upgrade unacceptable, and Client and Contractor are unable to find an acceptable compromise, either within the terms of this contract or with additional work, Client may choose (1) to continue hosting on the older codebase (ie, forked code) for an additional $50/month or (2) to discontinue hosting.  In this event, Client may discontinue hosting immediately, not subject to the specified term limitations, or to continue hosting at the agreed upon fees without surcharges for forked code for a grace period of up to 8 weeks.

 

LIMITATION OF LIABILITY

The Client agrees to indemnify the Contractor and hold the Contractor harmless from any claims, losses or damages arising from services provided by the Contractor hereunder.  In no event shall the Contractor be liable for any lost profits, or for acts and omissions which result in damage to Client’s property, nor for special, incidental or consequential damages, nor for any claim or demand against Client or the Contractor by any other person (even if the Contractor has been advised of the possibility thereof), in connection with or arising from the Contractor furnishing services to the Client under this Agreement.  The Contractor agrees to indemnify and hold the Client harmless from any claims, losses or damages resulting from any infringement by Contractor of any patent, trademark, copyright, or other proprietary right, unless such infringement occurs as a result of the Client's actions or instructions.  In no event shall the Contractor’s liability exceed the limits of its applicable insurance coverage or, where the fault arises from work completed, the value of the fees paid for such work.

 

CONFIDENTIAL INFORMATION

Material furnished to the Contractor by the Client, relating to its software and hardware are the property of the Client and shall be treated as confidential if identified as confidential by the Client (“Confidential Information”). At all times, the Contractor will use reasonable efforts to ensure that the Confidential Information shall not be disclosed to third parties by the Contractor, with the Client’s prior written consent.   For the purposes of this Agreement, Confidential Information shall not include:

• Information known to the Contractor before the Contractor obtained the information from the Client.
• Information publicly available other than as a result of an unauthorized disclosure by the Contractor.
• Information that is independently developed or acquired by the Contractor on a non-confidential basis, or from a third party which the Contractor has no reason to believe is not lawfully possessing and lawfully entitled to disclose such information; and
• Information which is required to be disclosed by law, regulation, court order or other legal process

Ownership and Use of Software. All of the software code comprising Wagn is open-source, licensed under a Gnu Public License (GPL).  Contractor retains licensing rights to all Wagn source code, including any new code contributed for work pertaining to this agreement, and retains the right to continue licensing the code for free, open-source distribution.
Ownership and Use of Data.  Client retains exclusive rights to and responsibility for all content created on the website.  Should Client desire a copy of the website data, Contractor agrees to export data in the form of a PostgresQL database dump and deliver it to Client via email upon receipt of a written request and of all payment due for the services agreed upon herein.
Return of Materials.  Upon the termination or expiration of this Agreement all paper materials belonging to the Contractor or the Client shall be returned to the respective owner thereof, and the non-owning party shall retain no copies unless the owner of such material consents thereto.
Use of Logo and Contractor Name.  Client expressly agrees that the Contractor may identify Client as a customer, and gives permission to the Contractor to the use of Client’s name and logo on general customer lists, on digital customer lists and on printed materials.

 

E-MAIL SOLICITATION

The Client will not engage in the practice of unsolicited E-mail disbursal, in bulk or by single mailing, when the recipient has not specifically requested the information directly from the Client or its agents, or the act generally known as ‘Spamming’ for any reason.  Engaging in activity deemed by the Contractor to constitute such activity may lead to an immediate termination of services by the Contractor without notice.  Any type of advertisement posted to a Newsgroup or Chat Room may also be considered to be Spam.

 

MISCELLANEOUS PROVISIONS

Notices.  Any notice of demand to be given to or served upon the Contractor or the Client in connection herewith shall be in writing and deemed to have been sufficiently given or served for all purposes when delivered in person or when deposited in the United States mails, postage pre-paid, addressed and delivered as follows:

If to the Contractor:  Grass Commons, 519 Peterson St, Fort Collins, CO 80524
If to the Client:  Per Billing Contact Information.

Amendment.  This Agreement may be modified, amended, changed or terminated (except as otherwise specifically provided herein), in whole or in part, only by an agreement in writing duly authorized and executed by the parties hereto.
Waiver.   The waiver of any breach of any of the provisions of this Agreement by either party shall not constitute a continuing waiver or a waiver of any subsequent breach by said party either of the same or another provision of this Agreement.
Remedies Cumulative.  Any and all remedies of the parties hereto shall be in addition to, and not in limitation of, all other remedies available to the parties at law or in equity.
Exclusive Agreement.  This Agreement, including any Addendums attached hereto, contains the entire agreement between the parties and no statement, promise or inducement made by either party or the agent of either party that is not contained in the Agreement shall be valid or binding.
Severability.  Invalidation of any of the provisions of this Agreement or of any paragraph, sentence, clause, phrase or word herein, or the application thereof in any given circumstance, shall not affect the validity of the remainder of this Agreement.
Binding Effect: Assignment.  This Agreement shall be immediately binding upon and inure to the benefit of the parties and their respective heirs, personal representative, successors and permitted assigns, provided, however, that the Client may not assign its rights or obligations hereunder without the prior written consent of the Contractor.
Governing Law.  This Agreement shall be construed in accordance with the laws of the State of Colorado. The parties agree that venue and jurisdiction shall be in Colorado.
Void Agreement.  This Agreement shall be void and of no further effect if it is not executed by the Client and returned to the Contractor within 15 days of the date that this Agreement is executed by a representative of the Contractor.

IN WITNESS WHEREOF, the parties execute this Agreement.