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This Website Maintenance Agreement (“Agreement”) is hereby entered into between you, your employees, and agents (collectively “Client”) and applies to the purchase of all Monthly Website Maintenance Services (hereinafter collectively referred to as “Maintenance Services”) ordered by Client.
Term and Termination
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 30 days’ 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 Obvi8® (i) immediately if Client fails to pay any fees hereunder; or (ii) if Client fails to cooperate with Obvi8® or hinders Obvi8®’s ability to perform the Maintenance Services hereunder, including cutting off access to, or changing passwords without out knowledge to, services we use in our maintenance tasks.
Obvi8® agrees to provide the Client with Maintenance Services as described in this Agreement. Maintenance Services include:
- Regular updates to the Client’s website, including CMS, plugins, custom codes, and themes.
- Cloud backup of website on a daily, weekly, or monthly basis, depending on Maintenance Package purchased. *
- Recovery of website files from backups, as needed. *
- Uptime monitoring (if included in package purchased). *
- Regular security scans (if included in package purchased). *
- Updates to text, images, and other minor changes to the Client’s website pages, for packages that include a time allotment in them (does not apply to all packages). The amount of time dedicated to these tasks each month will be determined by the Maintenance Package purchased by the Client at the time of signup.
- Any website support requests, above and beyond what has been outlined in the package above, or support questions requiring a response by Obvi8®, will count towards the monthly allotted time. If the Client’s package has no monthly allotted time included, the Client agrees to pay the standard hourly rate for support services provided by Obvi8®.
- Regular reporting (frequency of reports depends on Maintenance Package).
*These are tasks that are done throughout the month and will be detailed in your monthly report. Some items, such as updates, only occur when necessary and when we know the update is a stable version and it is okay to proceed.
Malware, Spam, or Malicious Code
- Removal of malware, spam, and malicious code from the Client’s website is available for an additional charge of $100 per incident for clients who are on Lite and Koala Plans at the time of infection. The plans do not guarantee maximum security and We do everything we can to help you avoid possible infections from such things, however, they can still happen, unfortunately.
- Removal of malware, spam, and malicious code that is already existing on a website when a client signs up for a Maintenance Plan will be charged at a rate of $300 for removal. We will:
- Clean the infection.
- Our Security Analyst will investigate how the Attackers gained entry.
- Remove any malicious code and malware links in your posts, pages, comments, and source code.
- Provide an in-depth report of the infection removal and investigation.
- Work with over 20 search engines, anti-malware, and anti-spam blacklists like Google and Symantec to remove your site.
- Provide a detailed checklist to protect the site from future attacks.
Fees: Refunds and Cancelations
The client agrees to pay Obvi8® 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 the client, no refunds shall be given under any circumstances whatsoever. The client further agrees to pay upon cancellation any other amounts due to Obvi8® for work provided at the client’s request above and beyond the monthly allotted time of the monthly agreement. Obvi8® is hereby authorized to charge the client’s credit card account or other payment mechanisms for any amounts owed from time to time by the client to Obvi8®.
For the purposes of providing these services, the Client agrees:
- To properly convey to Obvi8® the information that needs to be changed or added.
- To answer any questions from Obvi8®, in regards to task work on the website, promptly.
- To provide Obvi8® with access to its website for creating new pages, and making changes for the purpose of providing Maintenance Services.
- To provide Obvi8® access to their web hosting account, providing active user name/password combinations for access to the server via FTP, assuring that ‘write permissions’ are in place on the hosting provider.
The client understands, acknowledges, and agrees that:
- The amount of time allotted for updates to text, images, and other minor changes, is determined by the Maintenance Package that they purchased and will be billed in fifteen (15) minute increments.
- The client understands that all work for monthly maintenance tasks will be scheduled according to Obvi8®’s workflow. We have a process and maintain sites for many Clients; therefore, all website updates work that counts towards your monthly time allotment are done on a first come first serve basis, except in the case of a total website down issue, which would be considered an “emergency.”
- Failure by the Client to answer a question critical to the completion of a task within 5 business days may cause that task to be “bumped” and moved to the “end of the line” in our work queue. Depending on the time of the month, this could cause that task to roll over into the next month’s bucket of update requests.
- Once the time allotted in their Maintenance Package has been reached for the month, any unfinished tasks on the Client’s task list will be rolled into the next month for processing.
- All monthly updates are scheduled at our convenience and in accordance with our schedule. We have a process and a workflow that we use to maintain all of our clients’ websites in a fair and orderly fashion. The only exception is in the case of the Client’s website being totally offline or down for some reason, in which case their issue would be considered an ‘emergency’ and would take priority.
- Should the Client wish to have additional tasks completed in the same month, they will be billed on an hourly basis of $105/hr less the discount rate provided for such work in the Maintenance Package that they purchased.
- The client understands that if they provide Obvi8® with a maintenance task and the task has been completed, then they wish to make changes to the task, any additional time to make these changes will count towards the monthly allotment of time.
- Website updates exclude but are not limited to, image editing, graphic design, graphic editing, database design, database changes, programming, and search engine optimization.
Website updates do not include website redesign, re-alignment, or re-development equalling more than 50% change to a web page, web graphics on the website (i.e. 4 graphics on a website, and you want 3 changed, there is a charge for anything above 2, meaning 50%).
- CMS design, integration of plugins that require intensive configuration, or programming of things that require extensive time to set up, including but not limited to blogs, shopping carts, API integrations with third-party services, and web forums are not considered “minor” changes and therefore are not included in the Maintenance Agreement. These require a separate design or development agreement.
- The maintenance agreement does not include training on how to use your website, CMS, or email.
- The maintenance agreement does not include training on search engine optimization (SEO) or other online digital marketing.
- All communications will be done during regular business hours, which are Monday through Friday from 9:00 AM to 5:00 PM (EST).
- Obvi8® has no control over your hosting company in regards to server downtime, incompatibilities with software, PHP compatibility issues, etc except for websites hosted on our Cloud servers.
- Obvi8® is not responsible for Client’s email issues or troubleshooting problems on their own computer. Our role is to maintain and keep your website running at its optimal capabilities.
- Obvi8® 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 website (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 amount of time to do what is allotted in our Maintenance Package.
- If changes are made by Obvi8® according to the Client’s information, and the changes are not correct, additional time to remedy the changes falls under the time allotted each month.
- Unused time is not accumulative. Unused time does not transfer from month to month. Maintenance Services time is strictly month to month.
- Obvi8® is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
- Obvi8® is not responsible for changes made to the Client’s website (s) by other parties, including the Client themself.
- During the duration of this contract, the Client agrees that Obvi8® will be the sole provider of maintenance services for the website, and no other party will have access to or rights to change the website. If a party, including the Client, other than Obvi8® makes changes to the website, any errors that are created must be repaired and will be charged at the hourly rate specified above.
- Obvi8® is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
- Obvi8® reserves the right to repair the Client’s website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services. This is because recovery or repair of the Client’s website is not guaranteed so is the availability of backups to restore.
Scheduling of Maintenance Tasks
- Because of the nature of our business, we are juggling multiple maintenance clients, on top of several large web design projects, at any given time. Because time is at a premium, we don’t take on more clients than we can handle, however, scheduling is a priority for us. We schedule all work for the month in advance to maintain a workflow that is conducive to our business and for all of our clients. When we take on a maintenance Client, they are given a set amount of time in our schedule for maintenance tasks that can be done each month that are counted towards their monthly time allotment. Please understand that the scheduling of these tasks is totally at the discretion of Obvi8®. The only time we “bump” one Client’s tasks for another Client’s place in line is in the case of an emergency. Unless a website problem interrupts your business monetarily, for instance, an eCommerce site that goes down or has problems with checkouts, or it is totally down or offline, it is not considered an emergency. We will provide the amount of time you have contracted for each month towards updates, however, we do it in accordance with our schedule. This is the only way we can be fair to all of our clients.
Additional Services – Additional services not listed herein will be provided for a fee. Obvi8® is not responsible for search engine optimization (SEO), developing new content, or writing new copy for Clients. The client will be charged an additional fee for writing content. Clients who need SEO work done must sign up for one of our SEO Packages.
Indemnification – The client shall indemnify and hold harmless Obvi8® (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 Obvi8® as a result of any claim, judgment, or adjudication against Obvi8® 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 Obvi8® (the “Client Content”), or (b) a claim that Obvi8®’ use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Obvi8® 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 – Obvi8® 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 the client. Except as otherwise specified in this agreement, obvi8® 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 is 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 obvi8® 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 a 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. Obvi8® 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.
Client Representations – The client makes the following representations and warranties for the benefit of Obvi8®:
- Client represents to Obvi8® and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Obvi8® 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 Obvi8® and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
- The client guarantees to Obvi8® and unconditionally guarantees that the Client’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
- The client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Obvi8® for inclusion on the website above are owned by the 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 Obvi8® 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.
- The client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Obvi8® and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the 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 a court order or other lawful processes. 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, Obvi8® 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 – Obvi8®, 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 Obvi8®, whether by regulation or contract. In no way is Obvi8® 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 Ghana. All disputes under this Agreement shall be resolved by litigation in the courts of Ghana and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
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 – The client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Obvi8®. Obvi8® 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.
Disputes – Client and Obvi8® 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 the arbitration.
Read and Understood – By purchasing a Maintenance Package, the Client acknowledges that they have read and understand this Agreement and agree to be bound by its terms and conditions.