1.1 Jonathan Pike, his affiliates and their successors and assigns (collectively referred to as “Jonathan Pike”, “him” or “his”) makes available the Monthly Website Maintenance Services (hereinafter collectively referred to as “Maintenance Services”) described in Jonathan Pike’s published service descriptions subject to these Terms of Service (the “TOS”).
1.2 This Maintenance Services Agreement (“Agreement”) is hereby entered into between you, your employees and agents (collectively “Client”) and applies to the purchase of all Maintenance Services ordered by Client.
2. TERM AND TERMINATION
2.1 This Agreement shall be effective as of the time frame Client signs up for Maintenance Services. 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 thirty (30) days of receipt of the notice. This Agreement may be terminated by Jonathan Pike (i) immediately if Client fails to pay any fees hereunder; or (ii) if Client fails to cooperate with Jonathan Pike or hinders Jonathan Pike’s ability to perform the Maintenance Services hereunder.
3. MAINTENANCE SERVICES
3.1 Jonathan Pike agrees to provide Client with Maintenance Services as described in this Agreement. Maintenance Services include:
- Updates to text, images, and other minor changes to Client’s website pages.
- Upgrades to Client’s content management system, including plugins and themes.
- Removal of malware, spam and malicious code from Client’s website.
- Recovery of files or email from backups, if available.
4. FEES; LIMITATIONS ON REFUNDS AND CANCELLATION FEES
4.1 Client agrees to pay Jonathan Pike any and all fee(s) as billed in accordance with this Agreement. The fee(s) must be received prior to the start of any Maintenance Services. THE CLIENT FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY CLIENT, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE CLIENT FURTHER AGREES TO PAY UPON CANCELLATION THE AMOUNT OF ANY CANCELLATION FEES OR OTHER AMOUNTS DUE TO JONATHAN PIKE AS PROVIDED IN THE AGREEMENT.
5. CLIENT RESPONSIBILITIES
5.1 For the purposes of providing these services, Client agrees:
- To provide Jonathan Pike with access to its web sites for creating new pages, and making changes for the purpose of providing Maintenance Services.
- To properly convey to Jonathan Pike the information that needs to be changed or added.
6. CLIENT ACKNOWLEDGEMENTS
6.1 Client understands, acknowledges and agrees that:
- Only two (2) hour(s) of time for Maintenance Services is allowed per month, billed in fifteen (15) minute increments.
- Any work that exceeds two (2) hour(s)s will be billed on an hourly basis of $120 AUD + GST per hour.
- Web page updates exclude, but are not limited to, image editing, graphic design, graphic editing, database design, database changes and programming.
- Additional fees could be charged if the information provided has to be typed and exceeds the two (2) hours(s) of time allotted.
- If changes are made by Jonathan Pike according to Client’s information, and the changes are not correct, additional time to remedy the changes fall under the two (2) hour of time allotted.
- Unused time is not accumulative. Unused time does not transfer from month to month. Maintenance Services time is strictly month to month.
- Jonathan Pike is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
- Jonathan Pike is not responsible for changes made to Client’s web site(s) by other parties.
- Jonathan Pike is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
- Jonathan Pike will not repair Client’s website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
- Recovery or repair of Client’s website is not guaranteed.
- Availability of backups is not guaranteed.
7. ADDITIONAL SERVICES
7.1 Additional services not listed herein will be provided for a fee of $120.00 AUD + GST per hour. Jonathan Pike is not responsible for developing new content or writing new copy for Client. Client will be charged an additional fee for writing content, based on the hourly rate of $120.00 AUD + GST per hour.
8.1 Client shall indemnify and hold harmless Jonathan Pike (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Jonathan Pike as a result of any claim, judgment, or adjudication against Jonathan Pike related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Client to Jonathan Pike (the “Client Content”), or (b) a claim that Jonathan Pike’s use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defence and payment, Jonathan Pike must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defence and all related negotiations.
9. DISCLAIMER OF ALL OTHER WARRANTIES
9.1 Jonathan Pike DOES NOT WARRANT THAT THE MAINTENANCE SERVICES WILL MEET THE CLIENT’s EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CLIENT. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, JONATHAN PIKE 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.
10. LIMITED LIABILITY
10.1 IN NO EVENT SHALL JONATHAN PIKE BE LIABLE TO CLIENT 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. THERE SHALL BE NO REFUNDS. Jonathan Pike 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.
11. CLIENT REPRESENTATIONS
11.1 Client makes the following representations and warranties for the benefit of Jonathan Pike:
- Client represents to Jonathan Pike and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Jonathan Pike are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Jonathan Pike and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
- Client guarantees to Jonathan Pike and unconditionally guarantees that Client’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
- Client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Jonathan Pike for inclusion on the website above are owned by Client, or that Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Jonathan Pike and its subcontractors from any liability or suit arising from the use of such elements.
- From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Jonathan Pike and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of Internet electronic commerce.
12.1 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, Jonathan Pike and Client 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 effective date.
13. FORCE MAJEURE
13.1 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 minimise the impact of the event.
14. RELATIONSHIP OF PARTIES
14.1 Jonathan Pike, 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. Client does not undertake by this Agreement, or otherwise, to perform any obligation of Jonathan Pike, whether by regulation or contract. In no way is Jonathan Pike to be construed as the agent or to be acting as the agent of Client in any respect, any other provisions of this Agreement notwithstanding.
15. NOTICE AND PAYMENT
15.1 Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party, mailed by certified, registered or Express mail, return receipt requested or by Federal Express. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
16. JURISDICTION / DISPUTES
16.1 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of Australia and the state of Victoria without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the Australian Disputes Centre, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Victoria. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. Client acknowledges that Jonathan Pike will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Jonathan Pike shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
17. AGREEMENT BINDING ON SUCCESSORS
17.1 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.
18.1 Client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Jonathan Pike. Jonathan Pike reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
19.1 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.
20.1 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.
21. NO INTERFERENCE AGAINST AUTHOR
21.1 No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
Last Updated Jan 3, 2020.