Website Maintenance Terms Of Service Agreement
This Maintenance Agreement (“Agreement”) is hereby entered into between you, your employees and agents (collectively “Customer”) and applies to the purchase of all Monthly Website Maintenance Services (hereinafter collectively referred to as “Maintenance Services”) ordered by the Customer.
This contract is for 12-months. This period which starts from when the first payment is received and will end exactly 12 months from that date.
Term and Termination – This Agreement shall be effective as of the time frame Customer signs up for Maintenance Services and makes the first monthly payment. 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 Fruity Creative (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with Fruity Creative or hinders Fruity Creative ability to perform the Maintenance Services hereunder.
If you wish to cancel your contract with us within the 12-month contract term, then you are liable to pay the reminding months fees to then end date of services agreed in this contract.
Maintenance Services – Fruity Creative agrees to provide Customer with Maintenance Services as described in this Agreement. Maintenance Services include:
Updates to text, images, and other minor changes to Customer’s website pages.
Upgrades to Customer’s content management system, including plugins and themes.
Recovery of files or email from backups, if available.
Fees; Limitations on Refunds and Cancellation Fees – Customer agrees to pay Fruity Creative 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 FRUITY CREATIVE AS PROVIDED IN THE AGREEMENT. FRUITY CREATIVE IS HEREBY AUTHORISED TO CHARGE CUSTOMER’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CUSTOMER TO FRUITY CREATIVE.
Customer Responsibilities – For the purposes of providing these services, Customer agrees:
To provide Fruity Creative with access to its websites for creating new pages, and making changes for the purpose of providing Maintenance Services.
To properly convey to Fruity Creative the information that needs to be changed or added.
Customer Acknowledgments – Customer understands, acknowledges and agrees that:
Only one (1) hours of time for Maintenance Services is allowed per month.
Any work that exceeds one (1) hours will have to be purchased extra from Fruity Creative and will be billed at the price stated there along with a new terms of service contract.
Web page updates exclude but are not limited to, image editing, graphic design, graphic editing, database design, database changes, programming, and search engine optimization.
Fruity Creative 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.
Additional fees could be charged if the information provided has to be typed and exceeds the one (1) hour of time allotted.
If changes are made by Fruity Creative according to Customer’s information, and the changes are not correct, additional time to remedy the changes fall under the one (1) hour of time allotted.
Unused time is not accumulative. Unused time does not transfer from month to month. Maintenance Services time is strictly month to month.
Fruity Creative is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
Fruity Creative is not responsible for changes made to Customer’s website(s) by other parties.
Fruity Creative is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed or outdated plugin vulnerabilities should a breach or attack occur due to these reasons.
Fruity Creative will not repair Customer’s website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
Recovery or repair of Customer’s website is not guaranteed.
Availability of backups is not guaranteed.
Fruity Creative is not responsible for developing new content or writing new copy for Customer. Customers who wish to add this to their maintenance service from the Fruity Creative and pay an additional fee.
If the website is beyond repair after Fruity Creatives inspection, Fruity Creative will offer to delete the old website and install the latest back-up copy we have if available.
Web hosting – As part of the maintenance program Fruity Creative as partnered with Fancy Chap, Inc. d/b/a Flywheel, a Delaware corporation to provide the hosting services to you our client. All hosting packages and services are rendered by this company and all liabilities, errors, hosting downtime, hosting interruptions, website problems, security breaches and other website or server problems are the responsibility of Fancy Chap, Inc. d/b/a Flywheel to fix.
Security – Fancy Chap, Inc. d/b/a Flywheel provide you with a free SSL certificate which originates from Let’s Encrypt™ who provide this free of charge. This SSL certificate is in good working order for simple website encryption for personal information that is that passed through our clients website servers. However Fruity Creative does recommend that if our clients do have more encryption needs for ecommerce features, payment taking or sensitive information that they do buy their own SSL certificates with a higher encryption level. In no circumstances will Fruity Creative be held accountable for any errors or security breaches that take place with the free SSL certificate offered or by any SSL certificate provided by our clients through a third party company.
All security scans, malware scans and other security features offered by Fruity Creative originate from Fancy Chap, Inc. d/b/a Flywheel and are conducted by them alone. Any losses or damages from any hacking events or breaches of security will not be the responsibility of Fruity Creative and we encourage all our clients to seek security advice from an accredited security company. Fruity Creative will always be happy to assist our clients in finding security advise and will follow the guidelines that are set by Fancy Chap, Inc. d/b/a Flywheel
Indemnification – Customer shall indemnify and hold harmless Fruity Creative (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 Fruity Creative as a result of any claim, judgment, or adjudication against Fruity Creative 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 Fruity Creative (the “Customer Content”), or (b) a claim that Fruity Creative use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Fruity Creative must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defense and all related negotiations.
Disclaimer of All Other Warranties – FRUITY CREATIVE 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, FRUITY CREATIVE 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 FRUITY CREATIVE BE LIABLE TO CUSTOMER 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. FRUITY CREATIVE 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 Fruity Creative:
Customer represents to Fruity Creative and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Fruity Creative 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 Fruity Creative and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer.
Customer guarantees to Fruity Creative 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 Fruity Creative 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 Fruity Creative 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 Fruity Creative and its 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, Fruity Creative and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for an unlimited period as deemed needed.
All data will be stored with our payment processor of choice and may change from time to time as we change payment services providers. All data will remain secure with the security standards of the third party payment processor and they have their own terms of conditions for security. This information can be provided on request.
Force Major – 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 major 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.
Acts Of God and forces of nature – In no way is Fruity Creative responsible in the case of a natural event taking place that hinders or destroys data from servers while these events occur. These events are not limited to but include thunder-storms, hurricanes, blizzards, tsunami, heavy snow, flooding, unexplained supernatural events, wildfires, tornadoes, heavy winds, natural fires and other forces of nature.
Relationship of Parties – Fruity Creative, 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 customer does not undertake by this Agreement, or otherwise, to perform any obligation of Fruity Creative, whether by regulation or contract. In no way is Fruity Creative 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.
Notice and Payment – Any notice required to be given under this Agreement shall be in email form and delivered personally to the other designated party email address. Either party may change its email address to which notice or payment is to be sent. Written notices will be sent if email communication fails after a one week delay of communications.
Disputes – This Agreement shall be governed in accordance with the laws of the Courts of England and Wales and shall be used in any courts where the client is located internationally where law of that country is in agreement with this contract. If certain parts of this contract are not in agreement with the clients country courts then the rest of the legally valid points will remain in force.
All disputes will be taken up with the clients country law enforcement and legal proceedings will take place with partner lawyers in the client’s country if normal channels of communication fail and disputes arise with this legally binding contract.
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 – Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Fruity Creative. Fruity Creative reserves the right to assign subcontractors as needed to this project to ensure on-time completion and during busy business periods.
Software – Fruity Creative also reserves the right to use third party software to finish all maintenance tasks assigned in this agreement in a timely manner. This includes website backup software, website page builders, security scanners, malware removal software and any other software that may be needed to complete website maintenance tasks.
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.
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.
Read and Understood – Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.