Term and Termination – This Agreement shall be effective as of the time frame Customer 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 fail to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by TOP-IC (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with TOP-IC or hinders TOP-IC’s ability to perform the Maintenance Services hereunder.
Fees, Limitations on Refunds and Cancellation Fees – Customer agrees to pay TOP-IC 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 CUSTOMER FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY CUSTOMER, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE CUSTOMER FURTHER AGREES TO PAY UPON CANCELLATION THE AMOUNT OF ANY CANCELLATION FEES OR OTHER AMOUNTS DUE TO TOP-IC AS PROVIDED IN THE AGREEMENT. TOP-IC IS HEREBY AUTHORIZED TO CHARGE CUSTOMER’S ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CUSTOMER TO TOP-IC.
Customer Responsibilities – For the purposes of providing these services, Customer agrees:
- To provide TOP-IC with access to:
- Hosting Customer Account for server support tickets
- Control Panel (on host server) for troubleshooting
- Domain Name Registrant for domain name delegation if necessary
- Other details as needed
- Administrator access to websites for creating new pages, and making changes for the purpose of providing Maintenance Services.
- To properly convey to TOP-IC the issue/information that needs to be changed or added.
Customer Acknowledgements – Customer understands, acknowledges and agrees that, in relation to the Maintenance and Website services:
- Maintenance Basic: Only Maintenance work requiring 1 to 2 hours of time for Maintenance Services for ONE website is allowed per month.
- Maintenance Plus: Only 1 New Page, 2 Posts and/or Maintenance work requiring up to 3 hours of time for Maintenance Services on up to THREE websites is allowed per month.
- Extra Support: Is provided as a service per hour, with pre-approval from client regarding estimated time and cost.
- Hosting Plans with servers in Sydney are individualised for each client. This is an approximate guide only and subject to change:
- STANDARD – 2GB Storage, 100GB Bandwidth/mth.
- Any major work on the website will be asked for pre-approval from client and
- Web page updates exclude, but are not limited to, database design, database changes, programming, and search engine optimization.
- Unused time does not transfer from month to month. Maintenance Services time is strictly month to month.
- TOP-IC is not responsible for changes made to Customer’s web site(s) by other parties.
- TOP-IC is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
- “Paid For” Third-party plugins that require up-front or yearly subscription are Customer’s expense.
- TOP-IC will not repair Customer’s website(s) that have become compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
- Recovery or repair of Customer’s website is not guaranteed.
- TOP-IC is not responsible for developing new content or writing new copy for Customer.
- TOP-IC is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
- TOP-IC 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. Customer’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.
- TOP-IC is not responsible for server/hosting downtime.
Indemnification – Customer shall indemnify and hold harmless TOP-IC (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 TOP-IC as a result of any claim, judgment, or adjudication against TOP-IC 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 Customer to TOP-IC (the “Customer Content”), or (b) a claim that TOP-IC’s use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defence and payment, TOP-IC must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defence and all related negotiations.
Disclaimer of All Other Warranties – TOP-IC DOES NOT WARRANT THAT THE MAINTENANCE SERVICES WILL MEET THE CUSTOMER’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, TOP-IC 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 MERCHANT ABILITY 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 ENFORCE ABILITY OF ANY REMAINING PROVISIONS.
Limited Liability – IN NO EVENT SHALL TOP-IC BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANT ABILITY 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. TOP-IC 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.
Customer Representations – Customer makes the following representations and warranties for the benefit of TOP-IC:
- Customer represents to TOP-IC and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to TOP-IC are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend TOP-IC and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer.
- Customer guarantees to TOP-IC and unconditionally guarantees that Customer’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
- Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to TOP-IC for inclusion on the website above are owned by Customer, or that Customer 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 TOP-IC 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. Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend TOP-IC and subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’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, TOP-IC and Customer 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.
Relationship of Parties – TOP-IC, 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. Customer does not undertake by this Agreement, or otherwise, to perform any obligation of TOP-IC, whether by regulation or contract. In no way is TOP-IC to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.
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.
Read and Understood – Customer acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.