Terms of Maintenance

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Maintenance Agreement

If you have selected Dyggz Marketing’s optional website hosting, then, in conjunction with the website hosting services, you are required to subscribe to Dyggz Marketing’s maintenance services (“Maintenance Services”) and you hereby agree to be legally bound by the terms and conditions below (“Agreement”). This Agreement contains important information about our obligations, and your legal rights and remedies; please read this Agreement carefully.

This Agreement is made effective as of the date of your purchase of the Maintenance Services, whether by electronic acceptance or by executing a written proposal including hosting with Dyggz Marketing (“Effective Date”) which incorporates these terms by reference and provides a link to this Agreement. This Agreement is between Dyggz Marketing, a British Columbia sole proprietorship with its principal place of business at 910 Grilse Ln, Brentwood Bay, British Columbia V8M 1B5, (“Dyggz Marketing”) and you, the customer (“you”). Dyggz Marketing and you are each also individually referred to as a “Party” and collectively as “the Parties”.

  1. Revisions to This Agreement. Dyggz Marketing may unilaterally amend this Agreement as necessary to accommodate changes in technology, features or pricing of the products and Services offered (“Amended Terms”). You hereby agree that Dyggz Marketing may notify you of such Amended Terms by posting the amendment on the Site, with the revision date noted at the bottom of this page to indicate the effective date of such Amended Terms. It is your responsibility to check this page periodically and your continued use of the Site after the revision date constitutes your agreement to be bound by the Amended Terms.
  2. Term. This Agreement shall begin on the Effective Date and continue for the term indicated in the Proposal or for the term you selected when signing up for the Maintenance Services using the Dyggz Marketing website. After such initial term, this Agreement will automatically renew for successive identical terms (not exceeding a renewal term of one (1) year), unless terminated earlier.
  3. Dyggz Marketing Obligations and Maintenance Services. In conjunction with hosting your website (“Website”), Dyggz Marketing will provide the Maintenance Services to you by maintaining your website, updating the applications, plugins, themes, and other software (“Software”), and backup copies of your Website in accordance with the terms of this Agreement. Dyggz Marketing will perform the Maintenance Services in a professional, workmanlike manner, and consistent with industry standards. Dyggz Marketing is not responsible for providing any other services not expressly required under this Agreement.
    1. Updates. Dyggz Marketing will maintain the Website in good working order during the term of this Agreement by updating the Website Software within a commercially reasonable period after such Software updates are made publically available by the theme author and plugin and application developers. Further, Dyggz Marketing will provide you with any revisions to the existing documentation or instructions as necessary for your use of the Website.
    2. Backup Website Copies. Dyggz Marketing will maintain archival copies of your Website content, inclusive of the Software (“Backups”). Such Backups will created on a frequency of minimum of every two (2) weeks up to a maximum of every four (4) weeks, depending upon how frequently you publish new content to your website. Dyggz Marketing will store up to two (2) months of Backups of your Website at any given time. In the event of the loss of data or content from your Website, Dyggz Marketing will restore content and data by using the most recent Backup.
    3. Security and Statistics. Dyggz Marketing will provide your Website with security patches, updates and monitoring for removal of malware, spam and malicious code. In addition, we will provide you with a monthly statistics report which will contain information on the user traffic that has visited your website.
  4. Your Responsibilities. For the purposes of providing these services, you agree to provide Dyggz Marketing with access to your Website for the purpose of providing Maintenance Services and to properly convey to Dyggz Marketing any information that is essential to Dyggz Marketing’s provision of the Maintenance Services.
  5. Your Covenants. You covenant and agree that:
    1. A maximum of one (1) hour of time for Maintenance Services is allowed each month and any unused time does not carry over from one month to the next month;
    2. Any work that exceeds one (1) hour will be billed at Dyggz Marketing’s then-current hourly rate;
    3. Website updates exclude, all services that are not expressly included in this Agreement as a part of the Maintenance Services. Such exclusions are, but not limited to, image editing, graphic design, page redesign, content creation, page creation, graphic editing, database design, database changes, programming, and search engine optimization;
    4. Dyggz Marketing has no control over the type of websites and content that are accepted by search engines and directories. Your website may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory;
    5. Updates are for the purpose of correcting bad or outdated information;
    6. If changes are made to the Website by Dyggz Marketing in accordance with your instructions, and the changes result in any malfunction of your Website, then all time spent by Dyggz Marketing to remedy such malfunction will fall under the one (1) hour of time allotted for Support services.
    7. Dyggz Marketing is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, and the like on your Website;
    8. Dyggz Marketing is not responsible for changes made to your Website by you or third parties;
    9. Dyggz Marketing is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed;
    10. Dyggz Marketing will not repair your Website if it became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services;
    11. Recovery or repair of your Website is not guaranteed;
    12. Troubleshooting email issues will be subject to hourly limitations and fees.
  6. Support and Responses. Dyggz Marketing shall provide support services to you by telephone and email (“Support”) which will be provided by knowledgeable Dyggz Marketing employees capable of providing assistance regarding the Maintenance Services and Software documentation. Such Support services will be provided as defined below. Dyggz Marketing agrees to provide you with a response to your Support request within fifteen (15) hours or less.
    Severity LevelDescriptionResponse
    1Produces an emergency situation in which the Website is inoperable, produces incorrect results, or fails catastrophically.Dyggz Marketing will diagnose and correct a Severity 1 issue as soon as reasonably possible, but later than within fifteen (15) hours of your request for Support. Dyggz Marketing will exercise best efforts to resolve Severity 2 issues within two (2) days. The resolution will be delivered to you in the same format as Severity 1 issues. The resolution will be delivered to you as a work-around or as an emergency fix. If Dyggz Marketing delivers an acceptable work-around, the severity classification will drop to Severity 2.
    2Produces a detrimental situation in which performance of the Website degrades substantially under reasonable use, such that there is a severe impact on use; the Website or Software is usable, but materially incomplete; or the use is otherwise significantly impacted.Dyggz Marketing will diagnose and correct a Severity 1 issue as soon as reasonably possible, but later than within fifteen (15) hours of your request for Support. Dyggz Marketing will exercise best efforts to resolve Severity 2 issues within five (5) days. The resolution will be delivered to you in the same format as Severity 1 issues. If Dyggz Marketing delivers an acceptable work-around for a Severity issue, the severity classification will drop to a Severity 3.
    3Produces an inconvenient situation in which the Website is usable, but does not provide a function in the most convenient or expeditious manner, and the user suffers little or no significant impact.Dyggz Marketing will exercise best efforts to resolve Severity 3 issues so long as the resolution is efficient and cost effective for Dyggz Marketing to do so, in Dyggz Marketing’s sole discretion. In the event the resolution is not efficient and cost effect for Dyggz Marketing to implement, Dyggz Marketing will provide a fix or fixes for Severity 4 issues in the next Website Update.
    4Produces a noticeable situation in which the use of the Website is affected in some way that is reasonably correctable by a change or by a future, regular Update of Software.Dyggz Marketing will provide a fix or fixes for Severity 4 issues in a future Software Update.
  7. Exceptions. Notwithstanding anything to the contrary, Dyggz Marketing shall have no obligation to provide Maintenance Services upon the occurrence of Force Majeure event of either Party. In the event Dyggz Marketing is excused from the performance of its obligations pursuant to a Force Majeure Event, then Dyggz Marketing will use its best efforts under the circumstances to resume performance of its obligations as soon as commercially possible.
  8. Intellectual Property Rights. The design, trademarks, logos and all other intellectual property of the Site (“Marks”) are owned by or licensed to Dyggz Marketing, subject to copyright and other intellectual property rights under Canadian and applicable foreign laws. Dyggz Marketing reserves all rights not expressly granted in and to the Site. You agree to not engage in the use, copying, or distribution of any of the Site content
  9. Account Information. You agree to provide Dyggz Marketing with accurate contact and payment information as prompted by the applicable registration form, including updating such information from time to time as may be necessary. If Dyggz Marketing is unable to contact you or process your method of payment for the Services, we will have no choice but to suspend or terminate the Maintenance Services.
  10. Fees. You agree that you will pay all fees and applicable taxes incurred by your account. Fees will be automatically billed to your payment method on file at the greater of: (a) the fee indicated in the Proposal; or (b) Dyggz Marketing’s then current rates for the Maintenance Services in effect for the billing period. Any additional services requested by you will be charged at Dyggz Marketing’s then current hourly rate.
  11. Late Fees. If your payment information is not up-to-date and you fail to pay your invoice before the due date, please note that Dyggz Marketing adds a late payment charge of twenty four percent per annum (24%) or the maximum allowable interest rate allowable at law, whichever is greater, to all outstanding amounts that are not paid within thirty (30) days from the due date specified in Dyggz Marketing’s invoice. In the event that your account with becomes delinquent, Dyggz Marketing may, at its option, cease any remaining performance obligations under this Agreement or any related agreement for with you until you have made payment. You will be liable for all legal and other expenses associated with collecting any overdue fees.
  12. Content Ownership and License. You retain all ownership rights to the content you upload to the Site.
  13. Trademarks. The Dyggz Marketing name and logo are trademarks of Dyggz Marketing, and may not be copied or used, in whole or in part without prior written permission from Dyggz Marketing.
  14. Termination. This Agreement will terminate simultaneously with the termination of the Website Hosting terms and Conditions. Notwithstanding the foregoing, if you fail to pay any amount owing under this Agreement and such failure continues for ten (10) days, Dyggz Marketing may, in its sole option and in addition to any other remedies available, terminate this Agreement and the Website Hosting terms and Conditions with immediate effect, by providing you with written notice.
  15. Effect of Termination. Upon termination for any reason, Dyggz Marketing will cease providing all Maintenance Services to your Website, delete all Backups, and take any other action considered appropriate in the circumstances.
  16. Force Majeure. Except for the obligation to make payment for Services rendered, neither Party shall be liable in the event that its performance of this Agreement is prevented, or rendered so difficult or expensive as to be commercially impracticable, by reason of an Act of God, labor dispute, unavailability of transportation, goods, governmental restrictions or actions, war (declared or undeclared) or other hostilities, or by any other event, condition or cause which is not foreseeable on the Effective Date and is beyond the reasonable control of the Party. In the event that the performance of a Party is delayed for more than three (3) months, the other Party shall have the right, which shall be exercisable for so long as the cause of such delay shall continue to exist, to terminate this Agreement without liability for such termination.
  17. Relationship of the Parties. Nothing contained in this Agreement creates an employee-employer, partnership, joint venture, principal-and-agent, or any similar relationship between the parties.
  18. Confidential Information. Neither Party shall use any Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Each Party acknowledges and agrees that the other Party may immediately enforce this Agreement by means of specific performance or injunction. “Confidential Information” means all information that the parties would reasonably expect to be considered confidential, but does not include information that: (i) is or becomes publicly known through no wrongful act of the receiving party; (ii) the receiving party received in good faith on a non-confidential basis from a source other than the disclosing party or its representatives; (iii) can be proven by written evidence that it was in the receiving party’s possession before its disclosure by the disclosing party or its representatives; (iv) can be proven by written evidence that the receiving party developed independently without breach of this Agreement; or (v) the disclosing party has explicitly approved in a signed writing authorizing the receiving party to release to a third party. Any breach by either Party involving the misuse of Confidential Information or threatened breach may result in irreparable damage for which the non-breaching Party will have no adequate remedy at law. Accordingly, in addition to any other remedies and damages available, the Parties acknowledge and agree that the non-breaching Party may immediately seek enforcement of this Agreement by means of specific performance or injunction, without any requirement to post a bond or other security.
  19. LIMITATION OF LIABILITY. DYGGZ MARKETING HAS NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION INTERNET. IN NO EVENT SHALL DYGGZ MARKETING BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LIABILITIES WHATSOEVER ARISING FROM OR RELATING TO THE MAINTENANCE SERVICES OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY. IN NO EVENT WILL DYGGZ MARKETING’S LIABILITY EXCEED FIFTY PERCENT (50%) OF THE FEES PAID BY YOU UNDER THIS AGREEMENT, UNLESS SUCH LIABILITY IS BASED ON FRAUDULENT ACTS OR OMISSIONS OF DYGGZ MARKETING. THIS LIMITATION APPLIES TO ALL CLAIMS OF LIABILITY AGAINST DYGGZ MARKETING, WHETHER DYGGZ MARKETING HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGE, AND TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW. THE RIGHTS AND REMEDIES AVAILABLE TO A PARTY UNDER THIS AGREEMENT ARE CUMULATIVE AND IN ADDITION TO, NOT EXCLUSIVE OF OR IN SUBSTITUTION FOR, ANY RIGHTS OR REMEDIES OTHERWISE AVAILABLE TO THAT PARTY.
  20. INDEMNIFICATION. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS DYGGZ MARKETING, ITS EMPLOYEES, CONTRACTORS AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS OR DEBT, AND EXPENSES (INCLUDING LEGAL FEES AND COSTS) AND ALL AMOUNTS PAID IN SETTLEMENT ARISING OUT OF OR RELATING TO USE OF THE SITE, SERVICES AND PRODUCTS. DYGGZ MARKETING MAY ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH USERS HAVE AGREED TO INDEMNIFY DYGGZ MARKETING AND YOU AGREE TO ASSIST AND COOPERATE WITH DYGGZ MARKETING IN THE DEFENSE OR SETTLEMENT OF ANY SUCH MATTERS.
  21. DISCLAIMER OF WARRANTIES. DYGGZ MARKETING MAKES NO OTHER WARRANTIES BEYOND THE WARRANTIES PROVIDED IN THIS SECTION. DYGGZ MARKETING EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  22. Class Actions. Any and all claims against Dyggz Marketing must be brought in your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.
  23. Legal Fees. In the event of any action to enforce rights under this Agreement, the prevailing Party shall be entitled its costs and expenses, including reasonable legal fees and expenses, incurred in connection with such action.
  24. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties and their permitted successors and assigns.
  25. Amendment and Assignment. This Agreement may be amended only by a written instrument signed by the Parties. The Parties may not assign this Agreement or any right or obligation of this agreement, without prior written consent of the party, except that Dyggz Marketing may assign this Agreement to an affiliate or any entity acquiring all or substantially all of the assets of Dyggz Marketing.
  26. Governing Law and Venue. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any purchases or transactions entered into pursuant to this Agreement. This Agreement shall be governed in all respects by the laws of British Columbia without regard to its conflict of law rules. Venue for any lawsuit brought by the parties to this Agreement against each other regarding or as a result of this Agreement shall be proper only in an appropriate court located within Victoria, British Columbia and the Parties hereby submit to the exclusive jurisdiction of said courts.
  27. No Waiver. A party’s failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver. No single or partial exercise of any right, power or privilege shall preclude any other or further exercise thereof.
  28. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, then such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of the Agreement; provided, that in any such event, the Parties shall use good faith efforts to reform this Agreement in order to give effect to the original intent of the Parties.
  29. Survival. Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
  30. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
  31. Entire Agreement. This Agreement together with the documents referred to in this Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, representations and understandings of the Parties, written or oral.

Revision Date: April 11, 2016