Web maintenance agreement

Our agreement

  1. we respect our CLIENT’s confidentiality (item 7)
  2. we use open source solutions wherever possible. This means no vendor lock-in and software fees are charged at ‘fair and reasonable rates’ or in most cases, fees are not applicable (item 12.1)
  3. if the CLIENT determines that the website does not comply with the project components agreed to in this document, Meg Vitale agrees to carry out any necessary and reasonable modifications without extra charge (item 27)
  4. if the CLIENT is not happy with our service, the CLIENT is free to move their domain name, website and data in its entirety to another service provider if they are currently being hosted with Meg Vitale’s preferred host (item 21.1).

Introduction

This document defines the terms and conditions of the working relationship of the Parties to this Agreement. Unless otherwise agreed to in writing by both the parties, the terms of this Agreement will commence on the date specified.

All services that Meg Vitale ABN 35 967 272 132 (referred to as “Meg Vitale”) may be contracted to produce or provide for (referred to as CLIENT) will be subject to the following:

Definitions

As used herein and throughout this Agreement:

  • agreement – the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule(s), together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
  • content – all materials, information, photography, writings and other creative content.
  • copyrights – the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian and International Copyright Law.
  • deliverables – the services and work product specified in the Proposal to be delivered by Meg Vitale to the Client, in the form and media specified in the Proposal.
  • services – all services and the work product to be provided to Client by Meg Vitale as described and otherwise further defined in the Proposal.
  • trademarks – trade names, words, symbols, designs, logos or other devices or designs used in the final Deliverables.
  • open source software – computer software that is available in source code form for which the source code and certain other rights normally reserved for copyright holders are provided under a software licence that permits users to study, change, and improve the software.
  • ongoing management – the ongoing work to keep the website functioning and secure. This includes, but is not limited to: data management, backups, maintenance, upgrades and software patches.

General terms

1. Authorisation

The CLIENT authorises Meg Vitale to perform the services outlined in this Agreement for the CLIENT.

The CLIENT agrees to provide appropriate access to the client’s website, or any other directories or programs or sites which need to be accessed for maintenance and control including if needed domain management.

2. Agreement scope and period

Services supplied, costs and rates are limited to what is set forth in this maintenance agreement for the period specified. Any additional services will require an additional agreement. We reserve the right to adjust our service and rates after the period specified in this Agreement.

Included in the Ongoing Maintenance contract:

  • undertake critical system updates, theme and plugin updates
  • full site backup and offline storage
  • site security & monitoring
  • content editing, where required (up to 1 hour per month).

Not included in this Ongoing Maintenance contract, unless negotiated:

  • site structure or feature changes
  • graphic design services
  • digital design services
  • additional licensing, hosting or associated fees unless agreed prior.

If the agreement is extended, the terms of this agreement will still apply.

3. Costs and fees

  1. Professional services for this Ongoing Maintenance agreement are billed at the special rate of $55 per hour, per month including GST for the duration of this agreement. Meg Vitale reserves the right to adjust rates after the period of this agreement.
  2. Fees for any additional professional services are not included. Additional expenses are subject to GST. Outside purchases will be approved by the client before purchase.

4. Maintenance terms

The CLIENT understands the term of the contract to be for 12 months, automatically renewable every year unless a written cancellation has been provided to Meg Vitale thirty (30) days in advance of the next active billing cycle.

Monthly Ongoing Management plans will be paid in advance for the amount agreed upon by the CLIENT. The CLIENT will be billed for total contract hours regardless of actual hours used. Hours of contract do not roll over into the next month, nor cannot be pulled from the month ahead. Any additional hours over the contract hours will be billed at the current regular hourly rate of $75.00.

Meg Vitale reserves the right to terminate this contract at any time and will notify the CLIENT in writing by electronic mail and/or postal letter to the client.

If the CLIENT or any third party other than developer or approved subcontractors attempts to access or accesses the server, or website and makes changes to the website, database, server or software or scripts on the client website; time to repair and/or restore the website, databases or any other script on the client’s website will be billed at the current hourly rate and is not included in the maintenance plan.

The monthly Ongoing Management Agreement commences when the client agrees and submits this contract and is in full e·ect for twelve months.

5. Overtime

Estimates are based on a reasonable time schedule and may be revised to take into consideration the CLIENT’s requested “priority scheduling”.

Requested priority schedules that require overtime and weekend work will be subject to 60% markup at an hourly rate and need to be agreed to beforehand by both parties.

Overtime is defined as follows:

  • any time required beyond the agreed one hour per month
  • between 6:00pm – 9:00am Monday to Friday
  • all day Saturday, Sunday and public holidays, unless otherwise agreed.

6. Payment

The CLIENT agrees to pay Meg Vitale in accordance with the terms specified in each proposal/estimate. Invoices will be issued to the CLIENT at the beginning of each maintenance term, itemising all work to be included.  No work will be undertaken until payment has been made.

7. Confidentiality and privacy

  1. Meg Vitale will not disclose to any third party or use, other than for the purposes of this agreement, any knowledge or information imparted to or obtained by it during or in connection with the fulfilment of this Agreement, which is of a secret or confidential nature relating to the business, equipment, processes, products, services or business strategies offered or employed by the CLIENT.
  2. This obligation of confidence will cease to apply in relation to information that Meg Vitale is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by Meg Vitale of its obligations of confidence under this Agreement.

8. Subcontractors

Meg Vitale reserves the right to assign subcontractors or external suppliers. Any subcontractors or external suppliers will be bound to the terms of this Agreement. Meg Vitale will notify the client of subcontractors working on this project and their role.

9. Promotion

Meg Vitale reserves the right to use the CLIENT’s website, associated graphics and any unused ideas and development in the promotion of Meg Vitale services.

The CLIENT agrees to allow Meg Vitale to retain a discreet credit and link from the footer of the website.

10. Copyright

The CLIENT is responsible for all trademark, service mark, copyright and patent infringement clearances. The CLIENT is also responsible for arranging, prior to publication, any necessary legal clearance of materials Meg Vitale uses for this project.

The CLIENT indemnifies Meg Vitale against any loss or damage arising directly or indirectly from any unauthorised use of photographs, text, or other Intellectual Property not under copyright ownership of the CLIENT.

11. Project copyright

  1. After acceptance of the website and payment of all sums due by the CLIENT, Meg Vitale agrees to assign perpetual and unrestricted copyright to use any materials produced by Meg Vitale in accordance with this Agreement to the CLIENT including exclusive usage rights to unique graphics.
  2. Meg Vitale reserves all rights to licence (open source) and release all software code including website templates developed under this agreement.

12. Open source software

  1. Meg Vitale makes extensive use of open-source software and components to supply websites and services to the CLIENT. Meg Vitale will not charge additional licensing fees on open-source software.
  2. All software and components not developed by Meg Vitale retain the original licence and terms associated with them. Meg Vitale cannot assign any rights to the CLIENT and the CLIENT agrees to be bound by the original Author’s terms.

13. Dispute resolution

In the event of unresolved disputes between the parties to this Agreement the following dispute resolution procedure will apply:

  1. the party claiming that a dispute has arisen in relation to this Agreement shall give the other party written notice specifying the nature of the dispute
  2. within 10 Business Days of receipt of that notice the parties must hold discussions and negotiations in good faith in order to amicably resolve the dispute; and
  3. in the event that the parties cannot resolve the dispute through discussions and negotiations the parties shall refer the dispute to an independent mediator or expert as agreed
  4. the cost of submission to an independent mediator or expert will be met equally by the parties.

14. Force majeure

The Client and Meg Vitale shall not be deemed in breach of this Agreement if one party is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God, death, illness or incapacity or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Meg Vitale or the Client’s control (collectively, “Force Majeure Event”).

Upon the occurrence of any Force Majeure Event, the party shall give notice to the other party of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

15. Limitation of liability

In all circumstances, the maximum liability of its Designers, Directors, Officers, Employees, Design Agents and Affliates (“Meg Vitale parties”), to the CLIENT for damages for any and all causes whatsoever, and the CLIENT’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net cost of this project as specified in this Agreement.

In no event shall Meg Vitale be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Meg Vitale even if Meg Vitale has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.

16. No software warranties

  1. All software, technical solutions and systems are provided “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Meg Vitale makes extensive use of third party solutions and cannot warranty systems that we have no control over.
  2. If warranties are required, Meg Vitale will attempt to source warranted services. In this context, any warrantee would be provided by a third party and will Meg Vitale will assume no liability.

17. Purchased themes and other software

Meg Vitale takes no responsibility for the quality of purchased or leased themes, plugins and other software (defined as purchased software), assumed to be of professional quality.

If the software is supplied with bugs and defects, every effort will be made to minimise the effect on the website, however, Meg Vitale will not be liable for fixing software issues.

18. Termination

Either party may terminate this Agreement by giving 30 days written notice to the other of such termination.

In the event that work is postponed or terminated at the request of the CLIENT, Meg Vitale shall have the right to bill pro rata for work completed through to the date of that request, while reserving all rights under this Agreement.

If additional payment is due, this shall be payable within fourteen days of Meg Vitale delivering an invoice to the CLIENT after notification by the CLIENT to stop work.

In the event of termination, the CLIENT shall also pay any expenses reasonably incurred by Meg Vitale pursuant to this Agreement.

19. Severance

Part or all of any provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions of this agreement continue in force.

20. Assignment

Neither party may assign this Agreement or any rights under this Agreement without the prior written consent of the other party, which consent must not be unreasonably withheld.

21. Governing law and jurisdiction

This Agreement is governed by the laws of the State of Victoria within the Commonwealth of Australia and each party submits to the non-exclusive jurisdiction of the courts of that State.

22. Data, security and ongoing management

  1. Upon the end of this Agreement, The CLIENT is free to transfer their website management to another service provider. Meg Vitale will supply the last backup of the site and associated data. Meg Vitale will take all reasonable actions to transfer the CLIENT’S domain name to a new registrar.
  2. If the CLIENT does not proceed with an additional or Ongoing Management agreement after the agreed period, the CLIENT is responsible for ongoing management of the website and indemnifies Meg Vitale against any loss or damage arising directly or indirectly from website downtime or security breaches.

23. Client responsibilities

If the CLIENT or their agent or contractor employed by the CLIENT other than Meg Vitale attempts to update, edit or alter the site’s pages, infrastructure, source files or hosting management in a way that causes damage to individual pages or the site’s architecture, time to repair web pages will be assessed as an additional cost above the costs outlined in this agreement and at our professional or overtime rates.

Web maintenance agreement

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