webmax365 Performance and Protection Agreement
We commit to always doing our best to fulfill your needs and meet your goals, but sometimes it’s best to have a few things written down so we both know what’s what, who should do what and what happens if stuff goes wrong. We have no desire to have you accept something you might later regret. However, we do want what’s best for the safety of both parties, now and in the future.
Below you’ll find a “plain” English outline of what we need to agree before we get started. Further down you’ll find these details incorporated into the usual “legal form” Agreement.
The Key Points – in plain English!
This Agreement covers the specific services we’ll deliver under the webmax365 performance and Protection Plan you’ve purchased, and it’ll stay in place for as long as the Plan operates.
You aren’t locked in to any contracts or other “fine print” – you’re free to cancel your webmax365 account at any time. As your payments are made in advance of service, this will take effect at the expiry of your current billing cycle. The exception is during the first 30 days – if, for any reason, you feel you’re not getting real value from our services, we’ll also fully refund your initial payment.
You’ll pay us the agreed Plan fees in advance of the services being provided and you’ll provide us with all the information we need to be able to deliver the services you’ve purchased.
As part of the on-boarding process we’ll conduct a full audit of your website to determine the status of all core code, themes and plugins. If we need to do any work to bring your site up to a suitable level before we can start delivering the services, we’ll review this with you separately and get your approval before making any changes. This work will usually be an additional cost to your ongoing Plan charges.
If your Plan includes an allocation of time for support tasks, this time will not roll over from month to month. We’ll work with you to make sure you maximise the value of this service.
You agree we will be the only provider of the specified services for your website, and that if someone else (including you) changes your website and there’s a problem that we need to fix, we’ll charge you for this work.
We’ll always do the best we can to provide maximum performance and maximum protection for your website. However, there are some things outside our control. If they occur, we can’t be held responsible or liable.
You guarantee that you own or have permission to use any text, images and other content that appears on your website.
With few exceptions, we’ll make sure that neither of us discloses or uses the confidential information that each of us owns.
Finally, there’s the usual legal clauses, which you’ll find in the next section.
All The Legal Stuff
This webmax365 Performance and Protection Agreement (“Agreement”) is hereby entered into between you, your employees and agents (collectively “the Client”) and DNG Technology Pty Ltd, as owner of the webmax365 business. This Agreement applies to the purchase by the Client of all monthly website maintenance services (“Maintenance Services”) and website hosting services (“Hosting Services”) specified under a webmax365 Performance and Protection Plan.
Term and Termination
This Agreement shall be effective for the duration of the specific Performance and Protection Plan purchased by the Client. Subject to any minimum-term commitments applicable to the Performance and Protection Plan at the time of purchase, this Agreement may be cancelled anytime up to seven (7) days before the next renewal date.
This Agreement may be terminated by webmax365 (i) immediately if the Client fails to pay any fees hereunder; or (ii) if the Client fails to cooperate with webmax365 or hinders webmax365’s ability to provide the Maintenance Services and Hosting Services hereunder.
webmax365 agrees to provide the Client with Maintenance Services as set out in the specific Performance and Protection Plan purchased by the Client.
Where your webmax365 Performance and Protection Plan includes Hosting Services, the Client understands, acknowledges and agrees that:
- The provision of Hosting Services by webmax365 is governed by a “fair use” policy whereby restrictions on the Client’s capacity and usage will only be applied where such capacity and/or usage are deemed excessive in comparison to an average of other client requirements.
- webmax365 will do its best to ensure the Hosting Services are available to the Client 100% of the time but makes no warranties or representations that the Hosting Services will not be interrupted or contain errors.
- It will not use the Hosting Service for any unlawful or fraudulent purposes.
- It will not display inappropriate content on its website including, but not limited to, content that is defamatory, obscene, offensive, hateful or inflammatory, pornographic, discriminatory in any way or likely to deceive.
- webmax365 will determine, in its sole discretion, if there has been a breach of this clause and reserves the right to suspend, cancel or restrict the Hosting Services regardless of whether the breach or suspected breach was committed intentionally , or by means not authorised by the Client.
Fees and Charges
All Plans will renew automatically until cancelled. The client agrees to pay webmax365 any and all fees as billed in accordance with this Agreement. The fees must be received prior to the provision of any Maintenance Services or Hosting Services. The Client further agrees to pay upon cancellation any other amounts due to webmax365 for work provided at the Client’s request above and beyond any monthly allocated time under the Performance and Protection Plan. webmax365 is hereby authorised to charge the Client’s nominated credit card account or other payment mechanism for any amounts owed from time to time by the Client to webmax365.
For the purposes of providing these services, the Client agrees to:
- properly convey to webmax365 any information that needs to be changed or added.
- promptly answer any questions from webmax365 regarding support tasks.
- provide webmax365 with access to its website so it can effectively provide the Maintenance Services and Hosting Services.
- provide webmax365 access any third-party web hosting account, and provide active username and password combinations for access to the server via FTP, ensuring that ‘write permissions’ are in place with the hosting provider.
The Client understands, acknowledges and agrees that:
- The amount of time allocated for, and the nature of, support tasks is determined by the Performance and Protection Plan it purchased.
- As the Client cannot guarantee that its website has not been compromised, hacked, or otherwise defaced or infected prior to purchasing the Performance and Protection Plan, none of which is the responsibility of webmax365 or is deemed Maintenance Services under this Agreement, webmax365 will, as part of the Performance and Protection Plan, conduct an initial audit of the Client’s website to determine the status of all WordPress core code, themes and plugins and the level of rectification work required, if any, to bring the website up to a suitable level before the specified Maintenance Services and Hosting Services can be provided. This rectification work will be agreed with the Client and will be charged at the then current hourly rate for technical support.
- All Maintenance Services will be scheduled according to webmax365’s workflow. webmax365 has a defined operational process and maintains sites for many clients, therefore, all support tasks are undertaken on a first come, first served basis, except in the case of a total website down issue, which will be considered as an “emergency” and will take priority.
- Failure by the Client to answer a question critical to the completion of a support task within two business days may cause that support task to be moved to the “end of the line” in the work queue. Depending on the time of month, this could cause that support task to roll over into the next months’ time allocation.
- Once the time allocated in their Performance and Protection Plan has been reached for the month, any unfinished support tasks will be rolled into the next month for processing.
- Should the Client wish to have additional support tasks completed in the same month, it will be billed at the then current hourly rate for technical support.
- The Client understands that if it wishes to make further changes to a support task already completed by webmax365, any additional time required to make these changes will form part of the monthly time allocation.
- webmax365 has no control over any third-party hosting company regarding server downtime, incompatibilities with software, PHP compatibility issues, etc.
- webmax365 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. The Client’s web site may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
- webmax365 is not responsible for changes made to the Client’s website by other parties, including the Client. If another party, including the Client, makes changes to the website, then any errors generated by those changes which webmax365 is required to rectify will be charged for at the hourly rate for technical support current at the time.
- During the term of this Agreement, the Client agrees that webmax365 will be the sole provider of Maintenance Services for the website.
- webmax365 is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
The Client represents to webmax365 and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to webmax365 are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect and defend webmax365 and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
The Client shall indemnify and hold harmless webmax365 (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 legal fees and all related costs and expenses) incurred by webmax365 as a result of any claim, judgment or adjudication against webmax365 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 the Client to webmax365 (the “Client Content”), or (b) a claim that webmax365’s use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, webmax365 must: (i) give the Client prompt written notice of a claim; and (ii) allow the Client to control, and fully cooperate with the Client in, the defence and all related negotiations.
Disclaimer of All Other Warranties
webmax365 does not warrant that the Maintenance Services or the Hosting Services will meet the Client’s expectations or requirements. The entire risk as to the quality and performance is with the Client. Except as otherwise specified in this Agreement, webmax365 provides its services “as is” and without warranty of any kind. The parties agree that (a) the limited warranties set forth in this Agreement are the sole and exclusive warranties provided by each party, and (b) each party disclaims all other warranties, express or implied.
In no event shall webmax365 be liable to the 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. webmax365 makes no warranty of any kind, whether express or implied, regarding 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, webmax365 and the 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.
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 due to 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 the Parties
webmax365, 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. The Client does not undertake by this Agreement, or otherwise, to perform any obligation of webmax365, whether by regulation or contract. In no way is webmax365 to be construed as the agent or to be acting as the agent of the Client in any respect, any other provisions of this Agreement notwithstanding.
This Agreement shall be governed in accordance with the laws of the State of South Australia.
The Client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of webmax365. webmax365 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.
The Client and webmax365 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 accordance with the rules of the Magistrates Court of South Australia.
Read and Understood
By purchasing a Performance and Protection Plan, the Client acknowledges it has read and understands this Agreement and agree to be bound by its terms and conditions.