Website Update & Maintenance – T&Cs

In order to become a client of WP Creative for ongoing website maintenance and update, you must agree to the following terms and conditions.

Definitions

  • A task can be a new website, change request, issue fix, software update or any other service provided by WP Creative to the Customer. Each separate task is treated as an individual project.
  • Hosting Provider Company refers to the specialist companies where the Customer’s website is hosted.
  • Service Provider refers to Naphix Pty Ltd T/A WP Creative.
  • The word “contract” as it appears in these terms and conditions shall mean the contract between WP Creative and the Customer, which will be based on the terms and conditions contained within this Service Level Agreement.
  • ‘Unknown Issues’ are those unforeseen technical difficulties that cannot be predicted beforehand.
  • Estimated time of delivery (ETD) is a time-frame given by Service Provider to the Customer for delivery of a certain task.
  • ‘Low Priority’ or ‘High Priority’ is the urgency levels set by the Customer for certain tasks while sending out a new job to the Contact Person.
  • ‘Research and Scoping’ is a stage of pre-assessment where the Service Provider invests reasonable time to understand the background of the task and define the scope of the project.

Abbreviations

  • ISP stands for Internet Service Provider
  • HPC stands for Hosting Provider Company
  • Customer/ Client refers to your company

AND

The terms and conditions contained in this agreement apply to all Service Provider Customers unless agreed in writing to the contrary. No other contract terms and conditions shall apply unless specifically agreed in writing between Service Provider and the Customer. In the event of any ambiguity between these terms and conditions and any terms agreed in writing between the Service Provider and the Customer then these terms and conditions will apply.

The Customer is hiring WP Creative located at 18/89 Jones Street, Ultimo NSW 2007 to perform website maintenance for the estimated total price as outlined in the Investment section of this agreement.

1. Support Hours

Business hours: Monday to Friday- 9:00 am to 5:00 pm

Support cannot be expected on weekends and public holidays observed in New South Wales. In the event that the Service Provider is closed for any other reason, the Service Provider will make reasonable efforts to notify the Customer via email, email auto-responders, social media and/or website. The Service Provider is not obligated to notify the Customer prior to any closings and cannot be held liable for lack of response during such closings.

2. Contact Support

Contact Person: Assigned Account Manager and/or the Support Lead from the support portal
Email: Assigned Account Manager’s email or support@nirmal.com.au
Phone: 02 9281 3250 (Please press ‘2’ for technical support from the menu)
Response time: Within 24 hours

3. How it works

3.1 Ongoing Maintenance
We perform monthly maintenance and upgrades of your website as listed under Scope of Services on our staging server. Once everything is tested and functioning well, we will synchronise the changes to the live website.

3.2 Ad-hoc support

If you have only subscribed for monthly maintenance, all personalised support will be provided as an ad-hoc basis. If the requirement is clear, we will provide you with a high-level estimate at the beginning. However, if the scope is ambiguous, we will log hours and invoice you based on an hourly rate of $99 + GST.

3.2 Hours Tracking
We track hours using Zoho time tracker for each task that you send to us. You will also receive a monthly report detailing the work we have completed on your website and the time allocated to each task.

3.3 Time allocated
If you have support hours included in your plan, each month we will work for you until the allocated time is completely used up. If your requirements will exceed the allocated hours, we will notify you. From there, you have two options:

  • Additional quote for the additional tasks: A new estimate will be provided for additional tasks. We will send you estimates based on the hourly rate ($99+GST).
  • Use hours from the coming months: You can ask us to use some hours of your plan from the coming months so we can adjust the task when required.
  • Choose to postpone to following month: You may also choose to postpone the tasks (if tasks can wait) until the following month, so the work will be covered at no extra cost within your next month time allocation.

Please discuss with us your needs at any time so we can suggest what we can do to support your business in varying circumstances.

3.4 Resolution time
Service Provider will always endeavour to resolve problems, get tasks done as swiftly as possible. It recognises that the Customer’s website is an integral part of their business. The Service Provider will provide estimated resolution times for any task but is unable to provide guaranteed resolution times (the time in which an issue/work is resolved, tested and delivered). This is because the nature and cause of problem(s) can vary enormously. Service Provider is committed to providing Customer with progress updates during any service event.

The progress update is sent through email or phone communication between Account Manager/Support Lead and the Customer. The Contact Person from the Service Provider’s team will update the Customer on how many hours are used at a point in time whenever possible. In-person meetings, phone calls, emails etc. are all billable and counts towards your retainer plan.

4. Services Rendered

4.1 Technical Support
We’ll offer support relating to your WordPress website as a priority.

4.2 Web Hosting, Email and Marketing Support/Third-Party Dealings
We don’t offer web and email hosting so you’ll need to host your website with another company who will handle downtime or email issues relating to your account. We will, however, monitor the downtime and deal with them when required.
You acknowledge that third-party companies are independent service providers so WP Creative cannot be held liable for any delay or downtime on your website. We will, however, do our best to minimise such situations as soon as we are aware of it.

4.3 Errors, Delays and Liability
Service Provider can’t guarantee that the functions built will always be error-free (we are human!) and delivered on time, so we can’t be liable to Customer or any third party for damages, including lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate this website and any other web pages, even if you have advised us of the possibilities of such damages. The Customer also acknowledges that ongoing update in technology is inevitable, and errors might arise from time to time due to incompatibility in the system, so Service Provider cannot be held liable for such errors and delay in delivery. Fixes for errors due to change in technology are billable and count towards your budgeted hours.

The Service Provider is providing a web-based service at a competitive price. The Service Provider is not insuring or underwriting the client’s chosen business model. The Customer acknowledges that internet services are inherently subject to technical failures and disruptions from time to time.

(a) To the maximum extent permitted by law:-

(i) The Service Provider will not be liable in any way for fines, penalties, taxes (except GST), exemplary/aggravated/punitive damages, liquidated damages, indirect/consequential losses (including loss of contract, loss of production, loss of revenue, loss of profit, lost opportunity costs, and/or other loss not arising naturally and directly according to the usual course of things) or legal costs and expenses arising from the subject matter of this Agreement; and

(b) The maximum liability of the Service Provider to the Customer is the lesser of:-

(i) the sum of Fees paid by the Customer to the Service Provider for the disputed month; or
(ii) the cost of re-supplying the services.

5. Mutual Cooperation

Service Provider agrees to use its best efforts to fulfil and exceed the Customer’s expectation on the deliverables listed above. You agree to aid us in doing so by making available to us needed information pertaining to your website and to cooperate with us in expediting the work. You also give us permission to make structural changes to the website to deliver better results and enhance performance.

6. Terms of Payment

6.1 Billing Schedule

The service provider will send an invoice to Customer at the beginning of the month for the ongoing maintenance work.

 A 50% upfront payment will be charged for the additional work which will be carried out as a project-to-project basis. And the final 50% will be invoiced once the project is completed and everyone is happy with the outcome before handing over the files or going live.

6.2 Customer Agreement to Pay
Customer acknowledges that the upfront payment has to be made after signing the agreement to get started and each month thereafter for the monthly maintenance.

WP Creative reserves the right to stop work until payment is received.

6.3 Refund, Non-payments and Collection Costs
Service Provider only offers a partial refund if the work has not commenced at all. Please note, ‘Research and Scoping’ for any task that you send us is also billable and counts towards your budgeted hours.
The Service Provider reserves the right to engage a debt collector at the Customer’s expense if there are any payments overdue by 14 days. In the event that we incur legal fees, costs and disbursements in an effort to collect our invoices, in addition to interest on the unpaid balance, you agree to reimburse us for these expenses.

7. Term and Termination

7.1 Period of Agreement 
The period of this agreement is on a month-to-month basis. This Agreement shall automatically renew and continue indefinitely every month until terminated by either party upon not less than 30 days’ notice in writing given by either party to the other. This means you are required to give 30 days’ notice before the expiry of the agreement so it does not renew automatically.

7.2 Termination for Cause
Either party can terminate this Agreement at any time through written request. The party that would like to terminate the contract needs to give the other party 30 days’ written notice.

7.3 Payment for Non-Cancellable Materials
Any non-cancellable materials, services, etc., we have properly committed ourselves to purchase for your account, (either specifically or as part of a plan such as modules, photography and/or external services) shall be paid for by you, in accordance with the provisions of this Agreement. We agree to use our best efforts to minimise such liabilities immediately upon written notification from you. We will provide written proof, upon request of the Customer, that any such materials and services are non-cancellable.

7.4 Materials Unpaid For
If upon termination there exist any materials furnished by us or any services performed by us for which you have not paid us in full, until such time as you have paid us in full you agree not to use any such materials, in whole or in part, or the product of such services.

7.5 Transfer of Materials
Upon termination of this agreement, provided that there is no outstanding indebtedness then owing by Customer to WP Creative, WP Creative shall transfer, assign and make available to Customer all property and materials in its possession or control belonging to the Customer. Customer agrees to pay for all costs associated with the transfer of materials.

We’ll give you a copy of all files and you should store them really safely as we are not required to keep them or provide any native source files we used to make them. Additional costs will be charged for the recovery of the files (if possible at all) after the termination of the agreement.

8. Responsibilities of WP Creative and Customer

8.1 Customer Responsibility for Releases and Copyright
You guarantee that all elements of text, images, or other artwork you provide are either owned by your good selves or that you have permission to use them.

Then when your final payment has cleared, copyright will be automatically assigned as follows:

  • You’ll own the visual elements that we create for this project. We’ll give you source files and finished files and you should keep them somewhere safe as we’re not required to keep a copy. You own all elements of text, images and data you provided unless someone else owns them.8.2 Customer Responsibility for Accuracy
    You shall be responsible for the accuracy, completeness and propriety of information concerning your products and services which you furnish to us verbally or in writing in connection with the performance of this Agreement.

9. Confidentiality

WP Creative acknowledges its responsibility, both during and after the term of its appointment, to use all reasonable efforts to preserve the confidentiality of any proprietary or confidential information or data developed by WP Creative on behalf of Customer or disclosed by Customer to WP Creative.

This Agreement also takes into account the NDA signed on 26 February 2019.

10. Third-Party Services and Referrals

Customer understands that Service Provider does not provide Marketing Services or Hosting Services as a part of Service Provider’s offerings. Service Provider might, however, recommend some appropriate third party service providers in the market based on its experience. The engagement with such providers will be an informed decision by the Customer themselves and Service Provider takes no liability for the services rendered by such companies. This extends to all referrals given by Service Provider to the Customer.

Service Provider can coordinate with Customers’ third-party agencies when required, and these are billable which counts towards your budgeted hours.

The Customer also acknowledges that any plugins, stock imagery and content writing are not offered by Service Provider, however Service Provider can purchase such materials on Customer’s behalf. Purchase of such items are not included in the scope of the service unless agreed in writing (also see 15- Payment for Non-Cancellable Materials).

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 minimise the impact of the event.

12. General Provisions

12.1 Governing Law
This Agreement shall be governed and construed in accordance with the laws of the Province/State of NSW.

12.2 Representations and Warranties
The parties each individually represent and warrant that each has full power and authority to enter into this Agreement and to perform all of their obligations hereunder without violating the legal or equitable rights of any third party.

12.3 Entire Agreement
Except as otherwise set forth or referred to in this Agreement, this Agreement constitutes the sole and entire Agreement and understanding between the parties hereto as to the subject matter hereof and supersedes all prior discussions, agreements and understandings of every kind and nature between them as to such subject matter.

12.4 Severability
If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, then that provision will be fully severable. In such instance, this Agreement will be construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement will remain in full force and effect.

12.5 Reference
Customer hereby grants the Service Provider the right of cross-reference or right of reference the Customer’s Name and/or Logo on its websites and brochures for marketing related purposes.