Website Maintenance Services Agreement
2. Acceptance of Terms
4. Maintenance Services
5. Variations to the Maintenance Services
6. Your Rights and Obligations
7. Our Rights and Obligations
10. Intellectual Property
11. Indemnity and Limitation of Liability
12. Suspension and Termination
13. Dispute Resolution
15. Definitions and Interpretation
This site is owned and operated by GenXalt Pty Ltd ACN 143 303 235 (we, us). Our contact details are:
282 Wickham Street
QLD 4000 Australia
1300 977 328
The contact details of the customer (you) are set out on the Form.
By clicking on ‘I Accept’ and proceeding with this purchase, you agree to purchase the Maintenance Services and be bound by the following agreement between you and us. If you do not agree to the following terms, please click on ‘I do not accept’.
3.1 Commencement and duration
This agreement begins on the Start Date and continues for the Contract Period or until terminated under the provisions of this agreement.
(a) We may audit the Supported Website prior to providing the Maintenance Services. This agreement is subject to our reasonable satisfaction that the Supported Website does not contain any Unsupported Plugins and meets the minimum requirements.
(b) If we notify you that the Supported Website does not meet the minimum requirements or contains Unsupported Plugins, the parties agree to work together in good faith to bring the Supported Website up to the minimum requirements and to remove any Unsupported Plugin.
(c) If the parties do not reach agreement under clause 3.2(b) within 21 days of the notice, either party may terminate this agreement, and:
(i) we will refund any Plan Fees paid by you to us;
(ii) the provisions under clause 12.3 will apply.
3.3 Automatic renewal
(a) At any time before 14 days’ prior to the end of the Contract Period, either party may give the other party Written Notice that they wish to end the contract at the end of the Contract Period.
(b) We will review the terms, service offering, and applicable fees and give Written Notice at least 30 days before the end of each Contract Period of any changes to apply to the following Contract Period.
(c) Unless notice is given under clause 3.3(a), this agreement will be automatically extended for a further Contract Period of the same duration, on the same terms save as varied under clauses 3.3(b) and 5. This agreement may be extended indefinitely in increments under this clause.
From the Start Date and subject to the terms of this agreement, we will provide the Maintenance Services.
4.2 Service limitations
We will use reasonable efforts in providing the Maintenance Services, however other than as set out in this agreement, to the fullest extent permitted at law:
(a) we do not provide services for websites which do not use the WordPress CMS;
(b) we provide only back up services for custom code (expressly including customised plugins or themes). We do not provide any other Maintenance Services for custom code;
(c) we do not provide services for websites which contain any Unsupported Plugins;
(d) where we install a third party back up plugin and/or organise scheduled back ups to a third party server as part of the Maintenance Services, we are not responsible for and do not guarantee that the plugin and data storage services provided by third parties will operate without interruption or defect;
(e) we are not responsible for and do not guarantee the security of the Supported Website. It is your responsibility to implement and enforce suitable policies to govern the use and security of your website. We will deduct from service hours available under your Plan any time we spend rectifying security breaches or vulnerabilities for the Supported Website. If no service hours are available, then the rectification work will be treated as Out-of-Scope Services in accordance with clause 4.3;
(f) you acknowledge and agree that although the Maintenance Services will increase the stability and security of the Supported Website, it is not possible to render any website completely secure;
(g) we do not warrant or guarantee the Maintenance Services:
(i) will detect all technical problems in advance; or
(ii) are uninterrupted, error free or fit for any purpose not specified in the scope of the Maintenance Services or otherwise agreed to by the parties; and
(h) we do not take any responsibility for any defects or errors in the Maintenance Services where the defect or error relates to:
(i) the delays, action or inaction of any third party;
(ii) the operation or failure of any third party services, software, or equipment;
(iii) faults, defects, or security vulnerability in the software, services or equipment of any third party; or
(iv) any Force Majeure Event.
4.3 Out-of-Scope Services
(a) You may request, and at our discretion we may provide, Out-of-Scope Services.
(b) We reserve the right to charge the Out-of-Scope Fee for any Out-of-Scope Services provided. Out-of-Scope Services are billed in quarter hour (15 minute) increments, with a minimum charge of 30 minutes.
(c) We may vary the Out-of-Scope Fee at any time, by 30 days’ Written Notice. Any such change will apply only to Out-of-Scope Services requested and performed after the effective date of the change.
4.4 Changes to Services
Technology and business environments are constantly evolving and we may make adjustments to the Maintenance Services to ensure you continue to receive the best possible results. However, we will give you reasonable notice of any changes, and ensure that the replacement services are of the same high standards as the original.
4.5 Personal information
If you collect personal information about individuals, we may from time to time have access to that personal information in the regular course of providing the Maintenance Services to you. We will not collect, use or disclose any personal information about individuals that you have collected.
5.1 Making changes to the Plan
(a) You may change Plans at any time by giving us at least 14 days’ Written Notice, however the Plan Fees that applied at the Start Date are the minimum fees applicable for the Contract Period.
(b) If the Supported Website regularly requires Out-of-Scope Services, we will notify you that the Plan should be upgraded. You must respond to such notification within 14 days.
(c) If you adjust the Plan under clause 5.1(a), we will adjust the Plan Fees and the Maintenance Services to account for your requested changes. These changes will take effect after the notice period in 5.1(a) ends. This agreement will then continue to apply to the Maintenance Services as amended.
6.1 Instructions, equipment and materials
You must provide all Client Materials, data, or information necessary to provide the Maintenance Services as specified in the scope of the Maintenance Services or as agreed between the parties from time to time.
6.2 Client responsibilities
You agree to:
(a) respond in a timely manner if we bring an issue to your attention in relation to the Supported Website;
(b) keep us informed of any information or event relevant to the Maintenance Services, including, but not limited to, details of:
(i) any changes to login IDs or passwords; or
(ii) any modification or service performed on the Supported Website by a third party;
(c) provide us on request with copies of all necessary login IDs or passwords, licences, and licence keys, and access (whether physical or remote) to enable us to carry out the Maintenance Services.
(a) You warrant and undertake that:
(i) you and your representatives have all necessary licences and legal right(s) to permit and authorise us to provide the Maintenance Services; and
(ii) providing the Maintenance Services in accordance with your directions will not contravene applicable laws.
(b) You must provide adequate assurances of these warranties, including providing copies of any licences under clause 6.1 upon request.
7.1 Right to sub-contract
We may appoint employees or agents to provide all or part of the Maintenance Services, and such entities are bound by the same obligations as us. It is our responsibility to ensure such entities comply with this agreement.
We warrant that we and every person who provides the Maintenance Services on our behalf is competent and has the necessary skills, qualifications, permits and licences to provide the Maintenance Services.
(a) You must pay us the Plan Fees each Billing Cycle as set out in the Form. We will issue an invoice for the Plan Fees.
(b) In addition to the Plan Fees above, we will issue a separate invoice for:
(i) any fees for Out-of-Scope Services requested and performed under clause 4.3, payable fortnightly in arrears or otherwise as agreed; and
(ii) any pre-agreed Expenses paid by us on your behalf in the course of providing the Maintenance Services, on-charged at cost plus any Expenses Surcharge specified in the Form.
8.2 Further payment provisions
(a) Unless otherwise stated, each tax invoice:
(i) is payable 7 days from the date of the tax invoice;
(ii) may be sent by post or email; and
(iii) is payable by credit card, PayPal, or any other payment method we may notify you of from time to time.
(b) You are responsible for and must reimburse us for any transaction, processing, dishonour or charge-back fees issued by a financial institution or payment gateway in the course of making payment.
(c) All fees are in the currency specified in the Form and exclusive of any applicable tax, duty, fee, or levy. If any applicable tax, duty, fee, or levy is imposed on a supply under this agreement, you must pay that amount with and in addition to the Fees. For Australian customers only, we will itemise any applicable GST on each tax invoice.
8.3 Fee disputes
(a) If you reasonably believe that an invoice contains an error, and you wish to dispute an invoice, you must:
(i) notify us before the due date of the invoice;
(ii) pay all undisputed fees on the invoice; and
(iii) provide detailed information about any disputed fees.
(b) We will not suspend or terminate any Maintenance Services for non-payment of the disputed fees while the dispute is being investigated.
(c) Our records are prima facie evidence of fees owing and paid.
8.4 Default in payment
If you fail to pay any invoice by the due date, then without prejudice to our other rights or remedies, until payment is made in full (including for any accrued interest), we reserve the following rights:
(a) to immediately suspend work of any or all Maintenance Services and provide you with a Notice of Default;
(b) to retain a lien over all equipment, materials, data and work in progress, including those owned by you in our possession and control; and
(c) you are liable by way of liquidated damages for all amounts payable under this clause plus all costs of debt collection and enforcement, including legal fees on a solicitor and own client basis.
(a) Each party acknowledges that in the course of performing its obligations under this agreement, it may receive Confidential Information which is proprietary and confidential to the other party.
(b) Each party agrees not to use or disclose Confidential Information of the other party. However, a party may disclose Confidential Information of the other party to its officers, employees or contractors bound by the same confidentiality obligation, and only to the extent necessary for the party to carry out its obligations under this agreement.
(c) Despite clause 9(a) and 9(b) above, either party may use or disclose Confidential Information only to the extent necessary to:
(i) comply with any law, binding directive of a regulator or a court order;
(ii) comply with the listing rules of any stock exchange on which its securities are listed; or
(iii) obtain professional advice in relation to matters arising under or in connection with this document where the advisors agree to be bound by the same obligation of confidentiality.
(d) At the request of a party, the other party must return all Confidential Information received and must not retain any copies of, or other reproductions or extracts of, the Confidential Information, except as it may retain in accordance with prudent business practices. Any retained material shall remain subject to the provisions of this agreement without any time limit.
(e) You acknowledge and agree that we do not make any representation or warranty, express or implied, as to the accuracy, correctness or completeness of Confidential Information. You agree that neither we nor any of our affiliates, directors, officers, employees, professional advisors or agents have liability to you resulting from the use of Confidential Information by you or your directors, employees, contractors or agents.
10.1 Client Materials
(a) You retain ownership of your domain names and all existing content on the Supported Website. These domains are not assigned or transferred to us.
(b) You (or where applicable, any third party owner) retain ownership of all relevant Intellectual Property rights in the Client Materials and such rights are not assigned or transferred to us.
(c) You grant us (and our employees, contractors and agents, as applicable) an irrevocable, royalty-free, perpetual licence to use, copy, modify, and adapt any Intellectual Property in the Client Materials as reasonably necessary to provide the Maintenance Services.
10.2 Third Party Materials
We may use third party materials when providing the Maintenance Services. Use of third party materials may be subject to creative commons or open source licensing terms, or such third party licensing terms as we notify to you.
10.3 Publicity rights
For the term of this agreement, and subject to your ongoing right of revocation by 30 days’ Written Notice, you grant us, and our contractors and agents, a non-exclusive licence to:
(a) use your logo, trade marks and other branding rights to advertise or promote the Maintenance Services; and
(b) display, link to, or promote your business as part of our portfolio.
11.1 Responsibility for own actions
Each party agrees to release and hold harmless, indemnify and defend the other party and its Indemnified Officers against any Claim or Liability from or in relation to: (a) its own negligence or malpractice, or reckless or intentional misconduct, and (b) its own failure to perform its obligations and responsibilities under this agreement.
11.2 Release and indemnity
(a) You agree to release and hold harmless, indemnify and defend us and our Indemnified Officers against any Claim or Liability arising from or in relation to: (i) your breach of any law or infringement of any third party rights; (ii) if your instructions to us cause us to be in breach of any law or infringement of any third party rights; and (iii) your action, inaction, delay or breach of your obligations under this agreement, or your breach of any warranties under this agreement.
(b) You agree to release and hold harmless us and our Indemnified Officers against any Claim or Liability arising from in relation to:
(i) third parties, such as back up service providers;
(ii) any downtime, interruption, hardware or software failure, or Consequential Loss of any kind;
(iii) any loss or damage to persons or property (including data) caused by the use of, or the inability to use, the Supported Website or the Maintenance Services by you or anyone whom you allowed to access the Supported Website or Maintenance Services;
(iv) our reasonable actions in denying anyone access to the Maintenance Services for any reason, including non-payment;
(v) our refusal to accept a website as a Supported Website for any reason;
(vi) actions taken in relation to this agreement in accordance with our obligations at law or any order issued by a court of law or relevant government authority; whether directly or indirectly arising in connection with the Maintenance Services, even if we knew or should have known about the possibility of such Claim or Liability.
(c) You indemnify us for any reasonable legal expenses we incur as a result of your breach of this agreement, including expenses for enforcing payment, on a solicitor and own client basis.
11.3 Limitation of Liability
(a) To the fullest extent allowable at law:
(i) we only accept liability to you as set out in this clause 11, or as required by consumer or other laws which cannot be excluded by contract;
(ii) all Maintenance Services are provided under this agreement on an ‘as is’ basis and all warranties that may be implied by law or statute (other than those set out in this agreement) are excluded;
(iii) indirect, special, pure economic or Consequential Loss (whether arising under contract or tort) are expressly excluded under this agreement;
(iv) we are not liable to you for:
(A) errors in the information you provide to us;
(B) security breaches of the Supported Website; or
(C) default or failure in performance of our obligations under this agreement resulting directly or indirectly from:
1) a Force Majeure Event; or
2) third party service providers or suppliers;
3) fault, defect, or security vulnerability in the software or services of any third party; or
4) any other circumstances caused by factors beyond our reasonable control, whether or not caused through any act or inaction by us, our employees, agents or independent contractors, or through any other cause.
(v) our liability, and liability of our Indemnified Officers under this agreement is limited to (at our election):
(A) supplying the services again; or
(B) payment of the cost of having the services supplied again; or
(C) a refund of the amount you paid us for those services;
(vi) despite any other provision to the contrary, you agree that our total liability and the total liability of our Indemnified Officers in connection with this agreement whether under contract or tort, will not in any circumstances exceed the amount you paid to us in the preceding 12 months.
(b) The limitation of liability under clause 11.3 has effect in relation both to any Liability expressly provided for under this agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this agreement.
12.1 Your default and suspension
(a) We may suspend the Maintenance Services at any time and give you a Notice of Default if:
(i) you fail to make any payment when due, or any payment is dishonoured or subject to chargeback, subject to clause 8; or
(ii) you fail to provide clear and timely instructions; or
(iii) the Supported Website contains an Unsupported Plugin; or
(iv) we have reason to suspect illegal or unethical activity is taking place on the Supported Website; or
(v) you fail to accept our reasonable recommendations in relation to the security of the Supported Website.
(b) Suspension of Maintenance Services under this clause:
(i) does not affect your liability to make payment; and
(ii) will immediately end when the issue giving rise to the suspension is remedied.
(a) Either party may end this agreement at any time by giving the other party 30 days’ Written Notice.
(b) Either party may end this agreement immediately by Written Notice if the other party:
(i) fails to remedy a Notice of Default; or
(ii) is wound up, dissolved, becomes insolvent or bankrupt, or has liquidators, managers, receivers, or administrators appointed.
(c) Either party may end this agreement at any time and without prior notice if the other party is guilty of dishonesty, serious misconduct or serious neglect of duty.
12.3 Consequences of termination
(a) If this agreement ends for any reason, then in addition to any other rights we may have:
(i) we may issue an invoice for other work not previously invoiced;
(ii) you must pay all of our outstanding invoices whether or not due;
(iii) subject to clause 12.3(a)(iv), within 14 days, we will delete all Client Materials, login IDs and passwords; and
(iv) we retain a lien over and may retain all materials and work in progress, including Client Materials, login IDs and passwords, until all outstanding invoices have been paid in full, including any invoice issued under clause 12.3(a)(i).
(b) If we end this agreement under clause 12.2(a), we will refund any unused portion of prepaid Plan Fees, subject to our right to offset this amount against any other unpaid Fees.
(c) If you end this agreement under clause 12.2(a) or if we end this agreement under clauses 12.2(a), 12.2(b) or 12.2(c), then in addition to the rights specified in clause 12.3(a) and any other rights we may have:
(i) an amount equivalent to 50% of total Plan Fees anticipated for the balance of the Contract Period become immediately due and payable. The parties agree that this is not a penalty, but represents a reasonable estimate of fair compensation for the losses that may reasonably be anticipated from early termination in light of our sunk costs and ongoing commitments.
(d) A party not in default may pursue any other rights or remedies available at law against a defaulting party, subject to clause 11.
(a) If a dispute arises between the parties in relation to this agreement, either party may give the other party Written Notice that they intend to arrange mediation.
(b) The parties must refer the dispute to an independent mediator within 21 days of the written notice.
(c) If the parties cannot agree on a suitable mediator, either party may contact the Law Society in their state and request that they provide a mediator.
(d) The costs of the mediation must be paid by the parties in equal shares. 13.2 Legal proceedings No party may commence court proceedings unless the dispute remains unresolved after 28 days from the date of the written notice provided under clause 13.1(a).
(a) You may only assign, novate, or transfer any of your rights under this agreement with our written consent, which must not be unreasonably withheld.
(b) We may in our absolute discretion assign, novate, or transfer all or any of our rights under this agreement with 7 days’ Written Notice.
(c) Upon assignment or novation, the parties’ obligations and benefits under this agreement are binding on and shall benefit their respective representatives, successors and assigns.
All stamp duty, government charges and legal fees incidental to this agreement, specifically including all legal fees incurred in enforcing this agreement on a solicitor own client basis, are the responsibility of and payable by you.
14.3 Enduring clauses
The parties’ rights and obligations under clauses 4.2, 6.3, 7.2, 8, 9, 10, 11, 12.3, 13 and 14.5 will survive the termination of this agreement for whatever reason.
14.4 Relationship between the parties
Nothing in this agreement constitutes an agency, partnership or contract of employment, or as a guarantee of future employment or engagement. It is the express intention of the parties to deny any such relationships.
The laws of Queensland, Australia apply to this agreement and the parties submit exclusively to the courts of that jurisdiction.
If any provision of this agreement is ruled by a court to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision or part provision of this agreement.
Any delay or failure to enforce any rights in relation to a breach by the other party will not be construed as a waiver of those rights.
14.8 Entire agreement
This agreement contains the entire agreement between the parties and supersedes all previous negotiations or agreements in relation to the subject matter of this agreement.
Any variation or amendment to this agreement must be in writing signed by all parties.
15.1 Definitions In this agreement:
(a) Billing Cycle means the billing interval for the Plan Fees as set out in the Form.
(b) Business Day means a day (other than a Saturday or Sunday) upon which banks are ordinarily open for business in Brisbane, Queensland, Australia.
(c) Claim means any claim notice, demand, investigation, action, proceeding, litigation, or judgment however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort (including negligence) or statute and whether involving a party to this agreement or third party.
(d) Client Materials means all data and Intellectual Property relating to your business, owned and provided by you, including your logo and branding.
(e) Confidential Information means all spoken, written or electronically stored information belonging to or relating to either party and includes without limitation:
(i) any kind of technical, financial or business information;
(ii) details of employees, suppliers, or customers;
(iii) material developed under this agreement; and
(iv) Intellectual Property, concepts, know-how and trade secrets; but excludes information in the public domain (other than by default under this agreement) or information independently known to the other party.
(f) Consequential Loss includes, without limitation:
(i) loss or unauthorised disclosure of data;
(ii) interruptions to the operation of the Supported Website;
(iii) loss of opportunity, loss of anticipated profits or savings, expenses incurred through default or breach, wasted overheads, loss of contract, loss of business, loss of production, loss of use, loss of goodwill, and all other pure economic loss; and
(iv) disappointment, distress, stress, and inconvenience.
(g) Contract Period means the duration of the contract as set out in the Form.
(h) Fees means the Plan Fees, Out-of-Scope Fees, and any other fees set out in the Form and as may be amended from time to time in accordance with this agreement.
(i) Force Majeure Event means any of the following:
(i) an act of God;
(ii) war, terrorism, riot, insurrection, hacking, vandalism or sabotage;
(iii) strike, lockout, ban, limitation of work or other industrial disturbance; or
(iv) law, rule or regulation of any government or governmental agency, and executive or administrative order or act of general or particular application,
(v) unforeseen by the affected party;
(vi) is beyond the control of the affected party; and
(vii) occurs without the fault or negligence of the affected party.
(j) Form means the form to which these terms and conditions are attached.
(k) Indemnified Officers means, in relation to a party, its directors, employees, contractors, agents and representatives.
(l) Intellectual Property means all intellectual property rights, including copyright, inventions, patents (including patent applications), trade marks (whether registered or not), designs (whether registrable or not), eligible circuit layout rights, domain name licences, and includes the right to register any intellectual property rights.
(m) Liability means any liability (whether actual or prospective), loss, damage, cost or expense of any description, including legal fees on a solicitor and own client basis.
(n) Maintenance Services means the services included in the Plan in relation to the Supported Website, as set out in the Form and as may be amended from time to time in accordance with this agreement.
(o) Notice of Default means a Written Notice that:
(i) states that it is a notice of default;
(ii) specifies the default with sufficient detail and particulars;
(iii) gives a reasonable deadline by which the default must be remedied, of not less than 5 Business Days.
(p) Out-of-Scope Fee means the fee for Out-of-Scope Services set out in the Form and as may be amended from time to time in accordance with this agreement. (q) Out-of-Scope Services means all services outside the scope of the Maintenance Services.
(r) Plan means the service level set out in the Form and as may be amended from time to time under this agreement.
(s) Plan Fees means the fees for the Maintenance Services as set out in the Form and as may be amended from time to time in accordance with this agreement.
(t) Start Date means the date on which the Maintenance Services begin as set out in the Form.
(u) Supported Website means the URL identified in the Form.
(v) Unsupported Plugins means the plugins we do not support and which are set out at [Insert URL], and as may be notified by us to you from time to time.
(w) Written Notice means providing information by:
(i) delivering it to the other party in person;
(ii) sending it by pre-paid post to the other party’s address as set out in clause 1 (or as last notified by that party). A notice that is posted will be deemed received three days after the date of posting;
(iii) transmitting it to the other party’s email address as set out in clause 1 (or as last notified by that party). A notice that is emailed will be deemed received at the time it was sent, unless the sender receives a failed delivery notification;
(iv) including it on or in an invoice, including an invoice made available to the other party in electronic format via a website.
The following rules of interpretation apply unless the context requires otherwise:
(a) if something comes within the meaning of Confidential Information in this agreement and Intellectual Property in this agreement, and there is any conflict in this agreement regarding its provisions concerning Intellectual Property and Confidential Information, the provisions concerning Intellectual Property prevail;
(b) nothing in this agreement shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.