TO THE POINT TECHNOLOGY WEB MAINTENANCE TERMS & CONDITIONS AND SERVICE AGREEMENT
This Web Maintenance Agreement (“Agreement”) is hereby entered into between you the undersign and To The Point Technology (“Web Client”) and applies to the purchase of all Monthly Website Maintenance Packages (hereinafter collectively referred to as “ Web Maintenance Services”) requested.
1. Maintenance Services – To The Point Technology agrees to provide Customer with Website Maintenance Services as described in this Agreement. Web Maintenance Services include:
o Updates to text, images, and other minor changes to client’s website pages.
o Upgrades to client’s content management system, including plugins and themes.
o Removal of malware, spam and malicious code from client’s website.
o Recovery of files or email from backups, if available.
2. Fees; Limitations on Refunds and Cancellation Fees – Clent agrees to pay To The Point Technology any and all fee(s) as billed in accordance with this Agreement. The fee(s) must be received prior to the start of any Web 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 CUSTOMER FURTHER AGREES TO PAY UPON CANCELLATION THE AMOUNT OF ANY CANCELLATION FEES OR OTHER AMOUNTS DUE TO TO THE POINT TECHNOLOGY AS PROVIDED IN THE AGREEMENT. TO THE POINT TECHNOLOGY IS HEREBY AUTHORIZED TO CHARGE CUSTOMER’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CLIENT TO TO THE POINT TECHNOLOGY.
3. Client Responsibilities – For the purposes of providing these services, Customer agrees:
o To provide To The Point Technology with full access to its website (s) for creating new pages, and making changes for the purpose of providing Web Maintenance Services.
o To properly convey to To The Point Technology the information or content that needs to be changed or added.
4. Client Acknowledgements – Customer understands, acknowledges and agrees that:
o Monthly Web Maintenance Services will be perform to the specification of and not exceed the Web Maintenance Package chosen.
o Any work that exceeding the scope of the Web Maintenance Package chosen will be billed on an hourly basis of $120 per hour.
o Web page updates exclude, but are not limited to, image editing, graphic design & editing, database design and changes, programming, and SEO and mobile optimization.
o To The Point Technology has no control over the policies of search engines or directories with respect to the type of websites and/or content that they accept now or in the future. Customer’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.
o Additional fees will be charged if the submitted information/ content provided has to be typed out and/ or exceeds the scope of the allotted package.
o If changes are made by To The Point Technology according to client’s instructions and contend, and if the changes are incorrect, no additional fees will be charged to remedy error.
o Unutilized services are not accumulative. Unused Web Maintenance Services cannot be transfer from month to month. Website Maintenance packages are strictly month to month.
o To The Point Technology is not responsible for rewriting or restructuring sentences or paragraphs, or checking for typo errors or, misspellings, Unless otherwise specified.
o To The Point Technology is not responsible for changes made to client’s website(s) by any other parties.
o To The Point Technology is not responsible for the functionality of any third-party plugins that may become unusable as a result of Web Maintenance Services performed.
o To The Point Technology will not provide Web Maintenance Services to any client’s website(s) that has been compromised, hacked, or otherwise defaced or infected or failed our web analysis protocol prior to ordering Web Maintenance Services.
o Recovery or repair to a client’s website is guaranteed, with workmanship.
o Availability of backups taken daily is guaranteed.
5. Additional Services – Additional services not listed herein will be provided for a fee of $120.00 per hour. To The Point Technology is not responsible for typography service unless contracted to do so at a hourly rate of $120.00 per hour.
6. Indemnification – Customer shall indemnify and hold harmless To The Point Technology (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 To The Point Technology as a result of any claim, judgment, or adjudication against To The Point Technology 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 To The Point Technology (submitted “client content”), or (b) a claim that To The Point Technology’s use of the client content infringes the intellectual property rights of a third party. To qualify for such defense and payment, To The Point Technology 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.
7. Disclaimer of All Other Warranties – TO THE POINT TECHNOLOGY 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, TO THE POINT TECHNOLOGY 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.
8. Limited Liability – IN NO EVENT SHALL TO THE POINT TECHNOLOGY 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. TO THE POINT TECHNOLOGY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARDS TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT OBTAINED FROM THIRD PARTIES.
9. Customer Representations – Client’s makes the following representations and warranties for the benefit of To The Point Technology:
o Client’s represents to To The Point Technology and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to To The Point Technology are owned by the client, or that client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend To The Point Technology and its subcontractors from any claim or suit arising from the use of such elements furnished by client.
o Client guarantees to To The Point Technology and unconditionally guarantees that the website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Web Maintenance Packageses.
o Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to To The Point Technology 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 To The Point Technology and its subcontractors from any liability or suit arising from the use of such elements.
o From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. client agrees that he/ she is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend To The Point Technology and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce.
10. 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, To The Point Technology 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.
11. 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.
12. Relationship of Parties – To The Point Technology, 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 To The Point Technology, whether by regulation or contract. In no way is To The Point Technology 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.
13. Notice and Payment – Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party, emailed or 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.
14. Jurisdiction/Disputes – This Agreement shall be governed in accordance with the laws of Ontario, Canada. All disputes under this Agreement shall be resolved by litigation in the courts of Ontario, Canada including the federal courts therein 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.
15. 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.
16. Assignability – Client’s may not assign this agreement or the rights and obligations to any third party without the prior express written approval of To The Point Technology. To The Point Technology reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
17. 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.
18. 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.
19. No Inference Against Author – No provision of this agreement shall be interpreted against either party because such party or its legal representative drafted such provision.
20. Disputes – Client’s and To The Point Technology 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 a court of law in Ontario Canada and in accordance with the commercial arbitration rules of the CIRA. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the CIRA administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the provincial courts of Canada sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of Ontario Canada or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
21. Term and Termination – This agreement shall be effective as of the time frame client signs up for Web 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 fails to cure such breach within thirty (30) days of receipt of the notice. This agreement may be terminated by To The Point Technology (i) immediately if client fails to pay any fees hereunder; or (ii) if client fails to cooperate with To The Point Technology or hinders To The Point Technology’s ability to perform the contracted Web Maintenance Services hereunder.
22. Read and Understood – Each Party acknowledges that it has read and understands this agreement and agrees to be bound by its terms and conditions.
Our policies are pretty standard, however should you have any questions or concerns, please give us a call at (647) 303-7444 and we'll be happy to clarify.