Your Web Center, Inc. is in the business of offering, among other things, Web site hosting, marketing, management, e-commerce, Web site analysis, and security and support services pursuant to virtual server plans.
The Client wishes to have a Web site created meeting the specifications set forth herein (“Web Site”) and to make such Web site available through the Internet with one of the E-Service Packages (“Plan”) and attached hereto as Exhibit A: Specifications of Terms of Service:
NOW THEREFORE, in consideration of the covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree to the following:
Use of YWC Services constitutes acceptance and agreement to all the terms and conditions applicable to this Agreement and Your Web Center Acceptable Use Policy (“AUP”).
YWC may amend this Agreement at any time by posting the amended Agreement on its Web site and the effective date of any such amendment will be the date on which the amended Agreement is so posted. The Client agrees that it has read and understands this Agreement and acknowledges a duty to periodically check these terms and conditions. Without limiting the generality or effect of the foregoing, YWC may also add, delete or modify some or all of its Services at any time and in its sole discretion.
1.1 Hosting Service. Pursuant to the terms of this Agreement and the Plan selected by the Client, YWC agrees to provide the Client with: (i) space on a server to host a site on the Internet (“Web Site”) and (ii) various other services as more specifically set forth in Client’s Plan (collectively, “Services”) and attached hereto as Exhibit A.
1.2 Availability of Web Site. The Web Site shall be generally accessible to third parties via the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Services due to causes beyond the control of YWC or which are not reasonably foreseeable by YWC, including but not limited to interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures.
1.3 Updates. Client shall transmit to YWC any revisions, updates, deletions, enhancements or modifications (“Updates”) to the Virtual Server. YWC shall update the Virtual Server provided that (i) the Client is not in default of its payment obligations here under, (ii) such Updates are within the scope of this Agreement; and (iii) such Updates are Server Ready (as defined below).
1.4 Domain Registration. All new Web hosting accounts involving new domain registration services from YWC will be set up and entered into the Virtual Server within three (3) to seven (7) business days. Following the domain registration by YWC on behalf of the Client, YWC shall provide the Client with all relevant registration information.
1.5 Transfer of Domains. All new Web hosting accounts involving transfer of domains from another provider to YWC will be set up and entered into the Virtual Server with seven (7) to (60) business days. YWC makes no guarantees for the transfer process. YWC shall charge a transfer fee for services rendered to transfer domains on behalf of the Client. If the customer cancels service during the transfer period for any reason, transfer fees will be considered earned and will not be refunded.
1.6 Services. This Agreement includes fees for Web Site design and Internet Provider address Services. Any Internet Provider (IP) addresses assigned by YWC for the use of the Client shall be maintained and belong solely to YWC and the Client shall have no right to any use of that IP address except as permitted by YWC. YWC has the right to change or remove any and all such IP addresses. Allocation of IP addresses is limited by ARIN’s new policies. YWC must use name-based hosting where possible. YWC will periodically review IP address usage, and if we find the Client is using IP addresses where name-based hosting could be used, YWC will revoke authorization to use those IP addresses. The Client hereby agrees that YWC is responsible only for providing the Services set forth in Client’s Plan and this Agreement, and YWC is not responsible for providing any other services or tasks.
1.7 Engagement of YWC for Creation of Web Site. Client hereby engages the services of YWC for the purpose of designing, creating, testing and delivering a fully functional Web Site, in the form of Hypertext Markup Language (“HTML”), JAVA and/or FLASH languages, most current version, which meets the specifications set forth herein and which is fully ready and operational upon placement on YWC’s server and creation of necessary connections for availability on the World Wide Web.
1.8 Delivery Responsibilities of YWC. Within the time range specified in Exhibit “A” from the date of receiving Client content to be included in the Web site, YWC will complete the Web site.
1.9 Content Provided by Client. The items described in Exhibit “A” shall specifically identify and include all content to be included in the Web Site to be supplied by the Client, including but not limited to textual materials, logos, photographs, sound files, databases, video files and other Web Site content (“Web Site Content”) required to be included in the Web Site as described in the specifications, but excluding those items that shall be the responsibility of YWC to create as provided in Section 1.10 below. All such Web Site Content shall be delivered to YWC on CD. Logo files shall be in GIF format, photographs shall be in JPG format, written text shall be in Microsoft Word format, video files shall be in MPEG format, and sound files shall be in Mp3 file format.
1.10 YWC Created Content. As provided in Section 1.9 above, the Client shall be responsible for delivering all Web Site Content except for those items that YWC has specifically agreed to create pursuant to the terms of this Section 1.10. YWC shall have the obligation as part of its duties hereunder to create the Web Site Content listed in Exhibit “A” attached hereto. In developing the Web Site Content listed in Exhibit “A” hereto, YWC is authorized to utilize such subcontractors, as YWC may desire.
1.11 Placement of Site During Development. YWC will post the Client’s design page on http://www.yourwebcenter.com and will notify the Client the method for gaining access to the Web Site.
1.12 Stages of Completion. YWC shall use its reasonable efforts to meet the final completion schedule after receiving Client Web Site Content as provided in Section 1.8. However, Client acknowledges and agrees that any changes or deviations in the specifications, site plan, mockups, graphics, or any other element of the Web Site, and Client delays in fulfilling Client’s responsibilities, include delivering Site Content and promptly reviewing and commenting on completed work will lead to delays in the completion schedule.
1.13 Links. All links contained in the Web Site shall be tested and confirmed to be accurate prior to approval of the final Web Site by the Client.
1.14 Acceptance Period. Client shall have a period of five (5) days following delivery of the final Web Site during which Client may engage in testing of the Web Site. Client shall notify YWC no later than the 5th day following delivery of any items contained in the Web Site that do not conform to specifications. In the event that the Client does not notify YWC within the five-day period, the Client shall be deemed to have accepted the Web Site in all respects.
1.15 Correction of Deviations From Specification. YWC shall have a period of five (5) days following receipt of written notification from Client as provided in Section 1.14 above to correct any items raised by the Client into conformance with the specifications and to deliver such corrected items to the Client. Client shall have a period of five (5) days after delivery of the revisions to notify YWC of any further non-conformance with the specifications. YWC shall have a period of five (5) days after receipt of this notification to make corrections. This procedure shall continue until such time as the Client makes final acceptance of the Web Site.
1.16 Change in Specification of Web Site. Without invalidating this Agreement, the Client may order changes in the Specifications within the general scope of the Agreement, consisting of additions, deletions, of other revisions to the Specifications, including, but not limited to, changes to the final version of the Web Site Specifications as shown on Exhibit “A”, the method or manner of performance of the Web pages; the quantity of Web pages; or direct any acceleration in the performance of the design and development. YWC and the Client shall execute a Change Order (hereafter defined) setting forth in detail any changed or additional design or development of the Web Site to be performed or to be deleted. The cost of any Changes in the design and development of the Web pages will be added to or subtracted form the Contract Price by a Change Order, provided that such Change Order is in accordance with this Section 1.16
1.17 Search Engine Submissions. Included within this Development Fee payable hereunder, YWC agrees to submit the completed Web Site to top search engines according to the YWC’s Marketing Package for thirty (30) days. Any additional search engine submissions shall be subject to separate agreement between the parties and shall not be included herein. YWC and Client shall reasonably and in good faith cooperate to optimize the results of the search engine placement. However, YWC cannot guarantee any specific search engine placement.
2.1 Portfolio Listing. Following completion of the Web Site and final acceptance by the Client, YWC shall be permitted to list the Client and the Client’s Web Site on YWC’s Web Site and in any of its marketing and advertising as having been developed by the YWC. The material included on YWC’s Web Site shall include a hypertext link to the Client’s Web Site. YWC shall have full discretion as to the form and content of such acknowledgement and the appearance of any link.
2.2. Credit On Web Site. Following completion of the Web Site and final acceptance by the Client, and for a period of Initial Term after the Web Site is launched, Client shall include a credit to YWC on the home page of the Web Site. The credit to YWC shall be designed and placed on the Web Site by YWC but shall be in form and substance that is reasonably acceptable to the Client. The credit shall also include a hypertext link to the YWC’s Web Site.
2.3 Limited Trademark License. The parties hereby give each other a non-exclusive license to utilize the trademark of the other party, in form reasonably acceptable to the trademark owner, for the purposes set forth in Section 2.1 and 2.2 hereof.
3. LICENSE AND PROPRIETARY RIGHTS
3.1 Copyrights and Trademarks. The Client warrants and represents to YWC that the Web Site content and any other any elements of text, graphics, logos, pictures, code, scripts, algorithms, applets, audio, video and other materials furnished to YWC for inclusion in Web pages are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend YWC and its subcontractor from any claim or suit arising from the use of such elements furnished by the Client.
3.2 Copyright to Web Pages. Copyright to the finished assembled work of Web pages produced by YWC is owned by YWC. Rights to photos, graphics, source code, work-up files, computer programs and other materials are specifically not transferred to the Client, and remain the property of their respective owners. YWC and its subcontractors retain the right to display graphics and other Web design elements as examples of their work in their respective portfolios.
3.3 Hold Harmless. YWC hereby indemnifies and holds the Client harmless from and against all claims, suits, threats, demands, liabilities, settlements, negotiation costs and expenses, other costs, and attorney fees relative to any third party’s claim for Web Site content provided by YWC, infringes upon or interferes with any proprietary right of such third party, including but not limited to copyrights, trademarks, trade secrets, privacy rights, moral rights, patents, publicity rights, or any other right that may now or at any time in the future exist under any federal or state law.
3.4 Software License. During the Term, YWC grants the Client a nontransferable, nonexclusive limited license to use the Software, in object code form only, solely for purposes of using the Services on the Virtual Server. To the extent such Software belongs to a third party, YWC only grants such rights as it is able to under an agreement with the applicable third party. The Client may not use Web pages or parts of the Web pages generated by means of the software on any server other than the Virtual Server
3.5 Software License Restrictions. The Client and its Users agree that it will not, directly or indirectly: (i) copy the Software, except as is necessary to install on Hardware and for internal, archival purposes. In the event the Client makes any copies of the Software, the Client shall reproduce all proprietary notices on such copies; (ii) reverse engineer, decompile, dissemble, modify or otherwise attempt to derive source code from the Software; (iii) sell, lease, license, transfer, give possession of, or sublicense the Software or the documentation to others; (iv) write or develop any derivative or other software programs, based, in whole or in part, upon the Software.
3.6 Proprietary Rights. The Client shall not have any right, title, or interest in the Virtual Server, Software, Hardware, documentation, or any copyrights, patents, trademarks, trade secrets and any other proprietary rights embodied or used in connection therewith, except for the limited license provided in Section 3.4.
3.7 Proprietary Rights of Client. As between the Client and YWC, Client Content shall remain the sole and exclusive property of the Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. The Client hereby grants to YWC a non-exclusive, worldwide, royalty-free license for the Term to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use the Client Content as necessary to render the Services to Client under this Agreement.
In consideration of the services to be performed by YWC hereunder, including the hosting of completed Web Site meeting the specifications set forth and referred to herein, the Client shall pay to YWC at total development fee (“Development Fee”) equal to the amount set forth in Exhibit A, which shall be payable as set forth in the Fees referred to in Section 5.1 below. This Agreement shall begin upon the date of this Agreement is signed and shall continue for the period of time equal to (“Initial Term”) as set forth in Exhibit A. This Agreement will continue automatically for additional term equal to the Initial Term (each, a “Renewal Term”) unless either party provides notice at least thirty (30) days prior to the end of the Initial Term or Renewal Term, as applicable, that is has elected not to renew the Agreement. The Initial Term and all successive Renewal Terms are referred to hereafter, collectively, as the “Term”.
5. BILLING AND PAYMENT
5.1 Fees. As consideration for the Services as selected by the Client and provided by YWC, the Client agrees to pay the applicable Service(s) fees in accordance with YWC's fee schedule then in effect upon publication of the Web site or on the Agreement Completion Date, which ever comes first if the Client did not provide content by the agreed date as set forth in Exhibit A. The Client acknowledges the fees according to the prices and terms set forth in the Client’s Plan. Such fees may include taxes, fees or assessments by governmental agencies and YWC shall have the right, at any time, to pass on and invoice to the Client any new or increased taxes, fees, assessments or other charges imposed on, or required to be collected by YWC by any governmental agency. All fees are nonrefundable except for fees covered by the 30-day money back guarantee.
5.2 Rates and Charges. The Client shall pay to YWC, upon approval of the Web site and before submission of the Web site to search engines, an amount equal to the (the "Fees") in equal installments, as set forth in Exhibit A, by automatic monthly payment to YWC using a valid credit or debit card of the type that YWC accepts for YWC’s services provided hereunder. The Fees the Client is obligated to pay hereunder shall be based on the level of Services the Client selects, as described in this Agreement. The Client hereby authorizes YWC to charge the Client’s credit card for such amounts on a regular basis, but generally on the date of submission of the Web site to search engines or on the date of engagement in this Agreement. Fees are payable in U.S. dollars. The Client is responsible for reviewing the Fee Schedule from time to time and remaining aware of the Fees charged by YWC at the time of subscribing to the Services or extending the Term of this Agreement. Initial fees set forth at the time of registration shall remain in effect during the term specified.
5.3 Payment. Establishment of service is dependent upon receipt by YWC of payment of stated fees. Subsequent payments are due on the anniversary date of for payment frequency set forth in Client’s Plan. The frequency of payments is determined by the Term of service selected at registration. Monthly terms shall be charged on the same date of each month. Quarterly terms shall be charged on the same date every three (3) months. Semi-annual terms shall be charged on the same date every six (6) months. Yearly terms shall be charged on the same date every twelve (12) months. Biennial terms shall be charged on the same date every two (2) years.
5.4 Service Fee Changes. YWC reserves the right to change the Fees from time to time as YWC, in its sole discretion, determines for Services. Changes made by YWC to the Fees shall go into effect with respect to the Client on completion of the Initial Term or the yearly anniversary of the date on which the Client’s account was activated or, in the event the Client elects to increase the level of Services prior to such anniversary date, on the date the Client upgrades the level of Service. Thus, in the event during any year of the Term, the Client elects to extend the Term, any increase in the Fees which has been announced prior to the date on which the Client is required to notify YWC of the Client’s desire to extend the Term shall be applicable to and owed by the Client during the next Term, subject to increases occurring earlier resulting from a Services upgrade, as described above.
5.5 Credit or Debit Cards. Client may pay fees by MasterCard, Visa, American Express and Discover debit or credit cards (“Credit Cards”). YWC shall automatically charge the Client nominated Credit Card in advance of services being supplied. Credit Cards shall be charged seven (7) days prior to the Payment Date to the Credit Card number given at the time of registration. Payment by Credit Card includes the authorization to charge all future recurring fees and charges to the Credit Card on file with YWC. If Client’s Credit Card is denied, for any reason, Client will be sent a notice by E-mail. Credit cards that are declined for any reason are subject to a $10.00 declination fee. If payment is not received by the Payment Date, YWC may make one final attempt to charge Client’s Credit Card on or around the Payment Date. If payment is not secured by the Payment Date, the Client will be sent a Suspension of Services E-mail which will grant Client ten (10) days to make payment. In the event Client initiates a charge back, YWC may immediately suspend all Services to the Client until such time as full payment is received in addition to a $35.00 charge back administration fee and $50.00 reactivation fee. All fees are payable in advance in US Dollars. YWC will not accept international checks in foreign currency. YWC will accept checks for the initial development fee only. In the event a check is returned as unpayable, the Client will be assessed a $35.00 returned check fee.
5.6 Taxes. All payment of taxes associated with the services supplied by YWC shall be payable by and the responsibility of the Client. YWC does not collect federal, state, or local taxes that may be associated with a sale. From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Client agrees that the Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend YWC and its subcontractor from any claim, suit, penalty, tax, or tariff arising from the Client’s exercise of Internet electronic commerce.
5.7 Pass Through Expenses. The parties acknowledge and agree that all expenses associated with the development process, including but not limited to payment of any licensing fees, software procurement, costs of purchasing graphics, photographs and other web content, materials, supplies, and all other elements of the web site development shall be absorbed by YWC and that the Development Fee set forth above shall be the entire expense to be paid by the Client hereunder. Notwithstanding the above, Client is responsible for all costs and expenses not related to the design and development services not described or covered by the Client’s Plan.
5.8 Late Payment Charge. If YWC is for any reason unable to effect automatic payment via the Client’s credit card, the Client will either: (i) take all acts, and execute all documents (including an Electronic Funds Transfer Agreement in the form selected by YWC) required to effect such automatic payment; or (ii) pay all Fees immediately upon demand by YWC. A Late Fee of $35.00 shall be charged if payment is not received within five (5) days of the due date. All overdue fees will accrue interest as a late charge of the maximum rate permitted by law. Delinquent accounts shall be assessed interest charge if payment is not received within ten (10) days of the due date. YWC reserves the right to interrupt Services or remove Web pages from viewing on the Internet until payment is made. In addition, the Client shall be responsible for all reasonable expenses (including attorneys' fees) incurred by YWC in collecting unpaid amounts.
5.9 Pricing Disputes. The Client shall notify YWC in writing of any disputed charges sixty (60) days of the date of the billing for such charges. If the Client does not notify YWC within that time period, the Client has waived any right to dispute such amounts, either directly or indirectly or as a set-off, recoupment or defense in any action or efforts to collect amounts due to YWC. If Client disputes a charge to the credit card issuer that, in YWC’s sole discretion is a valid charge under the provisions of this Agreement, the Client agrees to pay YWC a charge back administration fee of $35.00.
5.10 Suspension of Services. Failure of the Client to fully pay any fees when due may be deemed a material breach of this Agreement justifying suspension of Services to the Client at the discretion of YWC. If Client fails to pay all fees by the Payment Date, the Client will be sent a Suspension of Services E-mail which will grant the Client ten (10) days to make payment. Any such suspension of Services does not relieve the Client from the obligation to pay all amounts due YWC under this Agreement for the remainder of the Term. In the event of a suspension of Services and upon a reactivation request by the Client, the Client shall pay YWC a $50.00 reactivation fee in addition to full payment of all accrued charges, plus reasonable interest, and any collections. Reactivation of services will only be performed during YWC’s regular business hours.
6. INDEPENDENT CONTRACTOR STATUS
The parties agree that YWC shall be an independent contractor and not an agent, employee or representative of Client. Client shall have no right to direct or control the details of the YWC’s work. YWC shall not receive any fringe benefits or other perquisites that the Client may provide to its employees and YWC agrees to be responsible for its own business overhead and costs of doing business and to furnish (or reimburse Client for) all tools and materials necessary to accomplish the services required of YWC pursuant to this Agreement, and shall incur all expenses associated with performance, except as expressly provided in Exhibits or amendments to this Agreement.
7. CLIENT’S RIGHTS AND OBLIGATIONS
7.1 Client Account Record. It is the responsibility of the Client to keep all account information current, complete and accurate as required by the registration process. Account information can be up dated through our customer support area or by E-mailing email@example.com. This information is used to keep you up to date on important information concerning your account and services.
7.2 Client Content. The Client is solely responsible for the content, development, operation and maintenance of the Client's Web site, activities, products and services offered by the Client and residing on YWC servers. The Client shall be solely responsible for accepting, processing and management Client’s customers orders, inquires and complaints. The Client shall be solely responsible for the payment or satisfaction of any, and all taxes associated with Client’s Web site and online store.
7.3 Security. The Client shall be responsible for the security and confidentiality of any information, whether it is the Client's or the Client's customer, (including, without limitation, customer credit card numbers) that the Client may receive as a result of its Web site or online store.
7.4 Central Processing Unit (“CPU”) Usage. The Client agrees that they shall not use excessive amounts of CPU processing on any YWC service provider. Such over usage as deemed by YWC may result in corrective action, including additional charges, disconnection of service or termination of this agreement. If corrective action is necessary, the Client shall not be entitled to any refund of any fees paid prior to such action.
7.5 Bandwidth and Storage. YWC monitors the amount of bandwidth and storage used by the Client and shall notify the Client by E-mail when their usage has reached the level of use as determined by their selected service plan. The Client shall then have 24 hours to respond as to whether the excess is to be billed at the standard rate of 1.00 per GB with a minimum of $2.00 or to have their account suspended for the duration of the month.
Special consideration for the Client's promotions shall be given without additional billing providing notification is received from the Client by YWC within fourteen (14) days in advance of such additional bandwidth being required, The Client must also advise the reason for the additional bandwidth and the length of time such extra bandwidth is required. Such consideration shall be granted on a client-by-client basis and should not exceed thirty (30) days.
If the Client consistently exceeds their bandwidth limit, YWC shall upgrade the account with additional monthly service charge to the client. The Client should contact YWC Customer Service for this upgrade service.
7.6 Caching. The Client expressly (i) grants to YWC a license to cache the entirety of the Client's Web site, including content supplied by third parties, and hosted by YWC under this Agreement. The Client (ii) further agrees that such cache is not an infringement of any of the Client's intellectual property rights or any third party's intellectual property rights.
7.7 Mailing Lists. YWC permits the Client to send mailings to subscribers of Client’s own mailing list. Such mailings must have explicit instructions to the recipient on how to remove their name from the list, and all requests to do so must be honored immediately. The Client agrees not to send mailings to lists provided by an outside agency or individual. The Client further agrees not to provide mailing list services to others. Due to the nature of the Virtual Server, YWC requests that all mailing lists be sent during the hours of 12:00 a.m. and 4:00 a.m. Eastern Time.
7.8 Acceptable Use of Virtual Server. The Client agrees to comply with all laws, rules, regulations and Your Web Center Acceptable Use Policy (AUP). The AUP may be updated from time to time at the discretion of YWC. The Client understands that change to the AUP by YWC shall not be grounds for early contract termination or non-payment.
7.9 Representation and Warranties. The Client represents and warrants that (i) the Client is responsible for compliance to this Agreement and the AUP for their customer, associates and/or anyone using their bandwidth (“Users”); (ii) the Client is at least 18 years of age and is the authorized representative of the organization or entity that they purport to represent, (iii) agrees to provide true, accurate, current and complete information about the Client as prompted in the account registration process (iv) the Client has the power and authority to perform its obligations hereunder and the Agreement constitutes a valid and binding obligation enforceable against the Client in accordance with its terms, (v) the Client has the requisite level of knowledge in the use of Internet languages, protocols and software to utilize the Services provided by YWC, (vi) the Client has secured all required authorization(s) necessary for hypertext links to third party Web sites, (vii) the Client holds all necessary licenses from the required jurisdictions to engage in the advertising and sale of any goods and service which may be offered on the Web Site, (viii) the Client Content does not and will not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulations or right of a third party, including, without limitations, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, and (ix) the Client owns the Client Content or otherwise has the right to place the Client Content on the Web Site.
8. YOUR WEB CENTER’S RIGHTS AND OBLIGATIONS
8.1 Support Services. System support services shall be provided by YWC twenty-four (24) hours per day, seven (7) day per week to the Client to include (i) account creation, including username and password; (ii) consultation to resolve technical or operational issues which may exist as barriers to the Client’s satisfactory use of YWC’s Services; (iii) support related to the Client virtual physical functioning. YWC does not offer technical support for the Client’s customers.
8.2 Removal of Client Content. YWC reserves the right, in its sole discretion, to exclude or remove from the Web Site any Client Content for any of the following reasons: (i) Client Content is not Server Ready, (ii) CGI scripts or programs consume an unreasonable amount of CPU usage, Random Access Memory (“RAM”), or other system resources, (iii) When YWC has received complaints from the Client’s customers, and in the judgment of YWC, the Client failed to resolve customer complaints regarding reasonable access for the Client’s customers or timely fulfillment of orders, (iv) the Client has become the subject of a government complaint or investigation, (v) the Client runs or executes JAVA Servlets on the Virtual Server, or (vi) any other reason which may violate or infringe any law or third party rights or which otherwise may potentially expose YWC to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on YWC to monitor or exert editorial control over the Web Site.
8.3 Investigations. YWC shall disclose any information in its possession to comply with a court order, subpoena, summons, discovery, warrant, statute, regulation or government request in order to protect YWC and its clients from harm. YWC is not obligated to notify the Client in the event such information is sought or provided.
8.4 Mailing Lists. YWC reserves the right to terminate the Client’s mailing program, whether provided by YWC or not, immediately and without notification to the Client if said list causes a problem, in YWC’s sole discretion, with the E-mail services of other clients. YWC also reserves the right to forbid the Client from utilizing a mail-sending program that jeopardizes the mail services of other clients.
8.5 SPAM. SPAM is unsolicited bulk and/or commercial messages over the Internet or maintaining an open SMTP policy. Spamming can overload and disrupt services. YWC has a "Zero Tolerance" policy on spamming and at its discretion will determine whether E-mail recipients were from an opt-in E-mail list. In order to prevent unnecessary blacklisting due to SPAM, YWC reserves the right to occasionally sample bulk E-mail being sent from servers. Violation of YWC’s AUP on SPAM will result in severe penalties including termination. Upon notification of an alleged policy violation, YWC will initiate an immediate investigation. YWC, at its sole discretion, may restrict customer access to the network to prevent further violations. A violation will result in an “Administrative Fee” of $750 and immediate termination of your account. Users who violate this policy agree that in addition to the “Administrative Fee” penalties, they will pay “Investigation Fee” not to exceed $200 per hour that YWC must spend to investigate the violation.
9. CONFIDENTIALITY COVENANTS
9.1 Copyrights and Trademarks. The parties acknowledge and agree that during the course of the relationship contemplated hereby that they are likely to come into contact and gain knowledge and access to information and materials that the other party deems to be confidential, proprietary or of strategic importance. The parties each agree that they shall maintain the strictest confidentiality of all such materials that they receive concerning the other party hereto. They shall not disclose such confidential information to any other party, shall not use such confidential information for their own purposes, and they shall protect such confidential information from disclosure using the same or higher standards as they use to protect their own confidential information.
9.2 Disclosure. The parties agree that confidential information shall be limited to disclosure within the organization of the recipient to those top management personnel and YWC with a bona fide need to know such information as a necessary part of their contribution to the performance under this Agreement.
9.3 Confidential Information. For purposes of this Agreement, confidential information shall include any and all information that is of a proprietary, confidential or trade secret nature, of strategic importance, or is otherwise considered to be confidential or proprietary by the releasing party. Confidential information will include items such as business plans, marketing plans and strategies, formula, processes, data, software source codes, financial information, customer lists, and all other information deemed confidential by the parties. Confidential information shall not include items that are generally available to the public, generally known in the industry, exist in the public domain, is learned from an outside source independent from the relationship established by this Agreement or was known prior to the entering of this Agreement.
10.1 Termination upon Breach or Insolvency. Subject to Section 10.3 below, this Agreement may be terminated by either party upon written notice, (i) if the other party breaches any obligation hereunder and the breaching party fails to cure such breach within thirty (30) days after such notice, or (ii) if the other party is the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding, makes an assignment for the benefit of creditors or admits in writing its inability to pay debts when due. Notwithstanding the foregoing, this Agreement may be terminated by YWC at any time upon written notice to the Client if the Client fails to make any payment within ten (10) days after such payment was due.
10.2 Termination for Client’s Breach of Sections 7. Notwithstanding Section 10.1 above, YWC may immediately terminate this Agreement and remove the Client’s Web Site from the Virtual Server if it is determined, in YWC’s sole discretion, that the Client has breached Section 7 of the Agreement. Any termination under this Section 10.2 shall take effect immediately and the Client expressly agrees that it: (i) shall not have any opportunity to cure, (ii) shall not be entitled to a refund of any fees paid to YWC, and (iii) shall promptly pay a $250.00 clean-up / disconnection fee.
10.3 Rights and Remedies upon Termination. In the event either party terminates the Agreement pursuant to Sections 10.1 or 10.2, YWC shall be entitled to immediately receive payment for all Services incurred through the date of termination. In addition, it is agreed to that, if the Client is the breaching party, then YWC will suffer damages that would be difficult to ascertain. Therefore, the Client agrees to pay YWC all amounts due hereunder for the remainder of the Term as liquidated damages and not as a penalty. Such liquidated damages shall be in addition to all other rights and remedies available to YWC in law and in equity which may be granted by a court of competent jurisdiction.
10.4 Termination Process. The Client must validate the request by submitting the last four digits of the credit card on file with YWC. All requests for cancellation shall be handled immediately. YWC shall not be held liable for any unauthorized cancellations. For security reasons and the general protection of all clients, YWC requires all notices not to renew the Agreement be delivered by either: (i) submitting a virtual authorization at firstname.lastname@example.org, (ii) faxing a cancellation request to (205) 533-9288, or (iii) mail a cancellation request notice address under Section 14: Section Notice.
10.5 Domain Registration. Domain Registration CANNOT be canceled or terminated.
10.6 Termination of Service. YWC reserves the right to terminate this Agreement and cancel, suspend, or refuse Services without cause at any time by giving the Client 10 day’s written notice.
10.7 Rights and Duties upon Termination. Upon the effective date of any termination of this Agreement, all legal obligation, rights and duties arising out of this Agreement shall terminate except that: (i) the Confidentiality Restrictions, Ownership of Proprietary Rights Provisions, and Independent Contractor provisions of this Agreement shall continue to apply and shall survive the termination of this Agreement as ongoing covenants between the parties; (ii) YWC shall have the continuing obligation to return to the Client all tangible and intangible property of the Client and all versions of any Proprietary Products of the Client or developed for the Client during the effectiveness of this Agreement; and (iii) YWC shall have the ongoing duty and obligation to confirm in writing and take all reasonable steps to secure proprietary right in the Proprietary Products developed pursuant to this Agreement in the name and exclusive ownership of the Client.
11.0 DISCLAIMER OF WARRANTY
11.1 Full Power. YWC has full and unrestricted power and authority to enter into this Agreement and to grant the exclusive rights for the Web Site development content in and to the Clients.
11.2 No Liens and Infringement. There are no liens, encumbrances or security interests of any nature or kind affecting the Web Site. None of the Web Site content infringes upon the proprietary rights of any third party.
11.3 Conformity. The Web Site will perform to all specifications and will have cross-platform uniformity in that it will function in the latest versions of the Microsoft Internet Explorer, Netscape, and Mozilla Firefox browsers.
11.4 The Client agrees that the use of the Services and information obtained through or from YWC is at the risk of the Client. . The Client agrees that YWC has no control and accepts no responsibility for the content or information passing through its servers, host computers, network hubs and points of presence or the Internet. NEITHER YOUR WEB CENTER, ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS NOR THE LIKE MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT FOR THE SERVICES OR ANY EQUIPMENT YOUR WEB CENTER PROVIDES. NEITHER YOUR WEB CENTER, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. YOUR WEB CENTER IS NOT LIABLE FOR THE CONTENT OR LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM THE CLIENT'S WEB SITE OR STORED BY THE CLIENT OR ANY OF THE CLIENT'S CUSTOMERS VIA THE SERVICE(S) PROVIDED BY YOUR WEB CENTER. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY YOUR WEB CENTER PERSONNEL SHALL CREATE A WARRANTY; NOR MAY THE CLIENT RELY ON ANY SUCH INFORMATION OR ADVICE. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. The terms of this section shall survive any termination of this Agreement.
12. LIMITATION OF LIABILITY
The Client agrees that under no circumstances shall any YWC personnel be held responsible or liable for situations where the Services are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to YWC at the time) which may exist in the Services or YWC's equipment as used to provide the Services.
Under no circumstances, including negligence, shall any YWC personnel be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by the Client, any of its customers, any reseller customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if YWC has been advised of the possibility of such damages.
Nor shall any YWC personnel shall be liable to the Client, any of its customers, any reseller customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or resulting from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to YWC's records, programs, equipment or services.
Notwithstanding anything to the contrary in this Agreement, YWC's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by the Client for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
The Client understands, acknowledges and agrees that if YWC takes any corrective action under this Agreement because of an action of the Client or one of its customers or a reseller customer, that corrective action may adversely affect other customers of the Client or other reseller customers, and the Client agrees that YWC shall have no liability to the Client, any of its customers or any reseller customer due to such corrective action by YWC.
YWC disclaims any and all loss or liability resulting from, but not limited to: (i) loss or liability resulting from access delays or access interruptions; (ii) loss or liability resulting from data non-delivery or data miss-delivery; (iii) loss or liability resulting from acts of God; (iv) loss or liability resulting from the unauthorized use or misuse of the Client's account identifier or password; (v) loss or liability resulting from errors, omissions, or misstatements in any and all information or services(s) provided under this Agreement; (vi) loss or liability resulting from the development or interruption to the Client's Web site or E-mail service. The Client agrees that YWC shall not be liable for interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if YWC has been advised of the possibility of such damages. In no event shall the maximum liability of YWC exceed one hundred ($100.00) dollars.
Limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
The Client agrees to release, indemnify, and hold YWC, its contractors, agents, employees, officers, shareholders, directors, and affiliates (collectively "indemnified parties") harmless from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys' fees) arising out of or relating to the use of the Services by the Client, including any violation of the YWC's AUP or breach of any representation, warranty of covenant by the Client as contained in this Agreement and AUP or any acts or omissions by the Client.
Any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall deemed to be delivered if transmitted via Email at the Email addresses listed below, except for any notice of termination of this Agreement which shall be in writing and sent by United States Mail or Express Mail, Certified Mail, Return Receipt Requested and shall be effective on day received. Email and mail addresses for such notices are specified in Exhibit A.
Except as specifically provided in this Agreement, the parties agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of this Agreement shall be submitted to binding arbitration to be held in Alabama in accordance with the rules of Commercial Arbitration Rules of the American Arbitration Association (the "Rules"), unless the Parties stipulate otherwise. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court of competent jurisdiction. The parties shall each bear their own attorney fees with respect to such Arbitration but shall share equally the other costs and expenses of arbitration.
16. GENERAL PROVISIONS
16.2 Enforcement of Agreement. In the event it is necessary for YWC to enforce its rights under this agreement, the Client agrees to pay all fees incurred by YWC (including, but not limited to, attorney's fees and collection agency fees).
16.3 Waiver. The failure of either party to exercise any of its right or to enforce any of the provisions of this Agreement on any occasion shall not be a waiver of such right or provision, nor affect the right of such party thereafter to enforce each and every provision of this Agreement.
16.4 Modification of Agreement. Except as otherwise provided herein, this Agreement may not be amended except upon the written consent of the Client and an officer of YWC.
16.5 Survival. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and their respective successors and permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person.
16.6 Force Majeure. YWC shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, sabotage, embargo, terrorist or other attack, fire, flood, acts of any governmental body, war, insurrection, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
16.7 Assignment. Except as otherwise provided herein, all the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that the Client may not assign or transfer their right or obligations under or interest in this Agreement without first obtaining the prior written consent of YWC. YWC may, in its sole discretion, assign its obligations under this Agreement in connection with any merger, sale of all or substantially all of the assets of YWC. YWC reserves the right to assign subcontractors to this Web design and development project to insure meeting the Web Site Specifications described in Exhibit “A”.
16.8 Governing Law. This Agreement shall be governed by and shall be construed, interpreted and enforced in accordance with the laws of the State of Alabama, without reference to principles of conflicts of law. The parties agree that the sole and exclusive venue for any and all disputes arising hereunder shall be in any trial court located in Jefferson County, Alabama, USA.
16.9 Severability. This Agreement, together with the Order Form and other documents specifically identified in this Agreement, represents the entire agreement between the Client and YWC and supersedes all previous representations, understandings or agreements. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
16.11 Headings. The section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
16.12 Counterparts. This Agreement may be executed in counterparts, and each of which shall be deemed an original and all of which together shall constitute one and the same document
EXHIBIT A SPECIFICATIONS FOR TERMS OF SERVICE
This E-Service Package Agreement (the “Agreement”) is made and effective ________________.
Business Name: ________________________
Individual/Business Representative: (“the Client”)__________________ Title:__________________
Zip Code ____________
Your Web Center, Inc. (“YWC”), a corporation organized and existing under the laws of the state of Alabama, county of Jefferson, with its head office located at 2100 Southbridge Parkway, Suite 650, Alabama 35209.
Web Presence Services Description
Delivery Time Responsibilities of YWC . Within ______________ week(s) from the date of receiving Client content to be included in the Web site, YWC will complete the Web site.
Content Provided by Client. List of content to be provided by the Client.
YWC Created Content . List of content to be provided by YWC.
Development Fee . The Client shall pay to YWC a nonrefundable development fee ___________.
Monthly Fee. _____________________
Initial Term. _________________________________
Number of Installments in Initial Term. ______________________
Notice Contact Information. ______________________________
If To Your Web Center, Inc.: email@example.com
Mail: P.O. Box 3491
Hueytown, AL 35023
If To Client: [EMAIL ADDRESS]
Mail: [MAILING ADDRESS]
[CITY, STATE, ZIP CODE]
IN WITNESS WHEREOF, the parties hereto have duly entered and executed this Agreement as of the day and year first above written and represent and warrant that the party executing this Agreement on their behalf is duly authorized. The owner accepts personal responsibility for the financial responsibility of this contract and authorizes the signee to assign this responsibility to the owner if the owner is not the undersigned. The Client acknowledges the full contract copy is provided with this Exhibit A.
YOUR WEB CENTER, INC. CLIENT
Authorized Signature Authorized Signature
Print Name and Title Print Name and Title