This Website Maintenance Agreement (“Agreement”) is hereby entered into between you, your employees and agents (collectively “Client”) and Sparkbox.ca, a division of Grenz Enterprises Inc. (“Company”). This Agreement applies to the purchase of the Monthly Website Maintenance Package (hereinafter referred to as “Maintenance Services”) ordered by Client.
- Term and Termination – This Agreement shall be effective as of the date Client signs up for Maintenance Services for a term of twelve (12) months.Following this term, the Agreement will continue with termination possible with sixty (60) day written notice by either party to the other.
- This Agreement may also 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 Company (i) immediately if Client fails to pay any fees hereunder; or (ii) if Client fails to cooperate with Company or hinders Company’s ability to perform the Maintenance Services hereunder.
- Maintenance Services – Company agrees to provide Client with Maintenance Services as described in this Agreement. Maintenance Services may 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.
- Scanning for and removal of malware, spam and malicious code from Client’s website.
- Backing up website files and database.
- Recovery of files from backups, if available.
- Fees; Limitations on Refunds and Cancellation Fees – Client agrees to pay Company 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 COMPANY AS PROVIDED IN THE AGREEMENT. COMPANY IS HEREBY AUTHORIZED TO CHARGE CLIENT’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CLIENT TO COMPANY.
- Client Responsibilities – For the purposes of providing these services, Client agrees:
- To provide Company with access to its web site and hosting control panel
- To properly convey to Company the information that needs to be changed or added.
- Client Acknowledgements – Client understands, acknowledges and agrees that:
- Only thirty (30) minutes of time for Maintenance Services is allowed per month, billed in fifteen (15) minute increments.
- Any work that exceeds thirty (30) minutes will be billed on an hourly basis of $95 per hour.
- The thirty (30) minutes of maintenance services is exclusive of backups and upgrades performed by Company. These services will be performed in addition to the thirty (30) minutes of maintenance services.
- Web page updates exclude, but are not limited to, image editing, graphic design, graphic editing, database design, database changes, programming, and search engine optimization.
- Company has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. Client’s web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
- Additional fees could be charged if the information provided has to be typed and exceeds the time allotted.
- If changes are made by Company according to Client’s information, and the changes are not correct, additional time to remedy the changes fall under the time allotted.
- Unused time is not accumulative. Unused time does not transfer from month to month. Maintenance Services time is strictly month to month.
- Company is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
- Company is not responsible for changes made to Client’s web site(s) by other parties.
- Company is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
- Company 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.
- Additional Services – Additional services not listed herein will be provided according to our standard hourly fee. Company 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 our standard hourly fee.
- Indemnification – Client shall indemnify and hold harmless Company (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 Company as a result of any claim, judgment, or adjudication against Company 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 Company (the “Client Content”), or (b) a claim that Company’s use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Company must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defense and all related negotiations.
- Disclaimer of All Other Warranties – Company 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, 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.
- Limited Liability – IN NO EVENT SHALL COMPANY 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. COMPANY MAKES ABSOLUTELY 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.
- Client Representations – Client makes the following representations and warranties for the benefit of Company:
- Client represents to Company and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Company 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 Company and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
- Client guarantees that where Client is providing actors, voiceover artists, models or other talent to appear in any images or recordings, Client has obtained signed releases granting permission to use said images or recordings.
- Client guarantees to Company 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 Company 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 Company 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 Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of Internet electronic commerce.
- Confidentiality – 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 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.
- 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 – 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. Client does not undertake by this Agreement, 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 Client in any respect, any other provisions of this Agreement notwithstanding.
- Notice and Payment – 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.
- Jurisdiction/Disputes – This Agreement shall be governed in accordance with the laws of the Province of British Columbia.
- 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.
- Assignability – Client 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.
- Waiver – 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.
- Severability – 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.
- No Inference Against Author – No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
- Good Faith – Client and Company agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation.
Read and Understood – Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.
