AVA NETLINK Unified Web Services
Package: AVA NETLINK UNIFIED WEB SERVICES
Contract Period: 24 months
Billing Frequency: Monthly
Cancellation Allowed: Yes, with 30 days written notice period
Cancellation Penalty: 50% fees of remaining contract period plus unbilled fees due
Contract Renewal: Auto renewal unless request to terminate by client or service provider
Website and Hosting Management Agreement
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 day 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 AVA Netlink immediately if
(i) Client fails to pay any fees hereunder; or
(ii) Client fails to cooperate with AVA Netlink or hinders AVA Netlink ability to perform the Maintenance Services hereunder.
AVA Netlink agrees to provide Client with Maintenance Services as described in this Agreement. Maintenance Services include:
(i) Updates to Client’s content management system, including plugins and themes.
(ii) Cloud backup of website on a daily incremental basis, with 14 days backup availability
(iii) Recovery of website files from backups.
(iv) Uptime monitoring
(v) Fortnightly security scans
(vi) Updates to text, images, and other minor changes to Client’s website pages.
(vii) Any website support requests, above and beyond what is outlined in package, or WordPress questions requiring a response by AVA Netlink
Malware, Spam, or Malicious Code
(i) Removal of malware, spam, and malicious code from Client’s website is
(ii) Removal of malware, spam, and malicious code that is existing on a website when a Client signs up for a maintenance plan will be charged separately. A one-off quote will be submitted separately.
(iii) The quote charges will include working with Google or other search engines on your behalf to solve any issues your infection as caused you with their services.
Fees, Limitations on Refunds and Cancellation Fees
Client agrees to pay AVA Netlink 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 Client, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE Client FURTHER AGREES TO PAY UPON CANCELLATION ANY OTHER AMOUNTS DUE TO AVA NETLINK FOR WORK PROVIDED AT CLIENT’S REQUEST ABOVE AND BEYOND THE MONTHLY ALOTTED TIME OF MONTHLY AGREEMENT. AVA NETLINK IS HEREBY AUTHORIZED TO CHARGE CLIENT’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CLIENT TO AVA NETLINK.
(i) For the purposes of providing these services, Client agrees:
(ii) To answer any questions from AVA Netlink, in regard to task work on website, promptly.
(iii) To provide AVA Netlink with access to its website for the purpose of providing Maintenance Services.
(iv) To properly convey to AVA Netlink the information about content updates (if these are covered by the Maintenance Package).
(v) To provide AVA Netlink access their web hosting account, providing active username / password combinations for access to the server via (S)FTP, assuring that correct permissions are in place on hosting provider.
Client understands, acknowledges, and agrees that:
(i) Client understands that all work for monthly maintenance tasks will be scheduled according to AVA Netlink’ workflow. We have a process and maintain sites for many Clients, therefore all website updates work is done on a first come first serve basis, except in the case of a total website down issue, which would be considered an “emergency.”
(ii) Failure by Client to answer a question critical to the completion of a task within 5 business days may cause that task to be and moved to the “end of the line” in our work queue.
(iii) Once the time allocated 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.
(iv) 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 being in the case of 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.
(v) Website updates exclude, but are not limited to, image editing, graphic design, graphic editing, database design, database changes, programming, and search engine optimization.
(vi) Website updates do not include website redesign, re-alignment or re-development equalling more than 50% change to web page, web graphics on the website (i.e. 4 graphics on website, and you want 3 changed, there is a charge for anything above 2, meaning 50%).
(vii) 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.
(viii) Maintenance Agreement does not include training on how to use your website, WordPress, or email, but we can provide training at additional cost.
(ix) Maintenance Agreement does not include training on search engine optimization (SEO) or other online digital marketing.
(x) All communications will be done during regular business hours, which are Monday through Friday from 9:00 AM to 5:30 PM
(xi) If the Client’s website is not hosted with AVA Netlink, we have no control over Client’s hosting company in regard to server downtime, incompatibilities with software, PHP compatibility issues, etc.
(xii) If the Client’s email accounts are not hosted with AVA Netlink, we can’t be 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.
(xiii) AVA Netlink 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. Client’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.
(xiv) AVA Netlink is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
(xv) AVA Netlink is not responsible for changes made to Client’s web site(s) by other parties, including the Client themselves.
(xvi) During the duration of this contract, the Client agrees that AVA Netlink will be the sole provider of maintenance services for the website, and no other party will have access to or rights to change the web site’s code . If a party, including the Client, other than AVA Netlink makes changes to the web site’s code, any errors that are created must be repaired and will be charged separately.
(xvii) AVA Netlink is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
(xviii) AVA Netlink will not repair Client’s website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
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 for 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 AVA Netlink. The only time we put 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.
Indemnification – Client shall indemnify and hold harmless AVA Netlink (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 AVA Netlink as a result of any claim, judgment, or adjudication against AVA Netlink 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 AVA Netlink (the “Client Content”), or (b) a claim that AVA Netlink’ use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defence and payment, AVA Netlink must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defence and all related negotiations.
Disclaimer of All Other Warranties – AVA Netlink 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 Client. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, AVA NETLINK 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.
Limited Liability – IN NO EVENT SHALL AVA NETLINK 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. AVA NETLINK 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 – Client makes the following representations and warranties for the benefit of AVA Netlink:
(i) Client represents to AVA Netlink and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to AVA Netlink 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 AVA Netlink and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
(ii) Client guarantees to AVA Netlink and unconditionally guarantees that Client’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
(iii) Client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to AVA Netlink for inclusion on the website above are owned by 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 AVA Netlink and its subcontractors from any liability or suit arising from the use of such elements.
(iv) From time-to-time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce.
(v) Client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend AVA Netlink and its subcontractors from any claim, suit, penalty, tax, or tariff arising from 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 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, AVA Netlink 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 – AVA Netlink, 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 AVA Netlink, whether by regulation or contract. In no way is AVA Netlink 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 mail, return receipt requested or by Royal Mail. 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 will be governed by and construed in accordance with the laws of Malaysia; and the courts of Malaysia will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
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 – Client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of AVA Netlink. AVA Netlink 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.
Read and Understood – By purchasing a Maintenance Package, Client acknowledges that they have read and understand this Agreement and agree to be bound by its terms and conditions.