General Terms and Conditions
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE USING THE SERVICE PROVIDER WEBSITE DESIGN SERVICE, DIGITAL MARKETING, MANAGED SERVICES, WEB HOSTING AND HARDWARE SERVICES, THE DOMAIN NAME REGISTRATION SERVICE, SUPPORT SERVICES, OR MARKETING RETAINER SERVICES.
THIS AGREEMENT WAIVES JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
This Agreement is between SERVICE PROVIDER and CUSTOMER and applies to SERVICE PROVIDER’s provision of (i) the SERVICE PROVIDER Web Hosting and Hardware Services (includes but not limited to infrastructure, bandwidth, firewall, backup and telecommunications) (ii) the Support and Maintenance plans, (iii) the Domain Name Registration Service; (iv) any Digital Marketing and Managed Services (includes but not limited to Search Engine Optimization or SEO, Search Engine Marketing or SEM), (v) professional website design (“Website Design Service”) and (vi) Marketing Retainer Services. The SERVICE PROVIDER Web Hosting and Hardware Services, the Support Services, the Domain Name Registration Service, the Website Design Service, any Digital Marketing and Managed Services and Marketing Retainer Services will be collectively referred to herein as “Services” and each will be a “Service”.
All sections in this Agreement apply to each of the Services. Service sections only applies to CUSTOMER if CUSTOMER signed up for, activated and is not utilizing or is utilizing those services. CUSTOMER agrees that verbal direction to install, develop or implement a Service is an accepted method to begin activation or utilization of a service and billing of a service.
By establishing an account for any of the Services, activating or using any of the Services, CUSTOMER agrees to be bound by this Agreement and to use the Service(s) in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations along with the following policies and the applicable product agreements, which are incorporated herein by reference:
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which CUSTOMER subscribed to or activated the SERVICE PROVIDER Services, whichever date is later. The Services of this agreement and any Service that has a monthly fee will carry a minimum term of twenty four months (24) from the point of the last Service activated or the date of any written Service Order or Change Order, whichever date is later (each referred to as “Initial Term”), unless otherwise indicated in a written document executed by both CUSTOMER and SERVICE PROVIDER.
Following the Initial Term or Current Term, this Agreement shall automatically renew 30 days prior to the end of the Initial Term or Current Term in an increment equal to the Initial Term which will effectively become the new Current Term and will continue to auto renew as indicated unless and until terminated by either party in accordance with the notice provisions as set forth herein, and such notice of the party’s intent not to renew this Agreement is provided to the SERVICE PROVIDER more than thirty (30) days prior to the anniversary of the Initial Term or the Current Term and no sooner than sixty (60) days prior to the anniversary of the Initial Term or the Current Term.
All Sections of this Agreement will survive termination of this Agreement unless otherwise ordered by court.
3. SUBSCRIPTION INFORMATION
To order and receive any of the Services, CUSTOMER acknowledges that CUSTOMER is 18 years of age or older and either (i) CUSTOMER has legal authority to enter into this Agreement or (ii) represent a corporation, partnership or other legal entity duly formed (and incorporated where applicable) in good standing and CUSTOMER has the legal authority and power to enter into this Agreement on behalf of such entity. CUSTOMER must provide SERVICE PROVIDER with a valid credit card, debit card or other SERVICE PROVIDER approved payment methods for the Services, CUSTOMER email, CUSTOMER phone number and CUSTOMER billing address. CUSTOMER represents that all information CUSTOMER provided during the subscription process is accurate and complete and that CUSTOMER will update such information with SERVICE PROVIDER should any of it change.
SERVICE PROVIDER reserves the right to verify the accuracy of the information CUSTOMER submits in connection with CUSTOMER subscription for the Services CUSTOMER selected (“Package”) and CUSTOMER account and CUSTOMER consent to such verification. SERVICE PROVIDER also reserves the right to validate the payment method information CUSTOMER provided at subscription and account updates, including attempting up to a $1.00 authorization to CUSTOMER’S credit card or debit card which is not actually billed.
SERVICE PROVIDER will charge its own fees according to the billing plan of the Package CUSTOMER selected or any Service activated by CUSTOMER. SERVICE PROVIDER may accept or reject any subscriber to the Services in its sole discretion.
4. BILLING AND PAYMENT
CUSTOMER agrees to pay (i) the one-time and monthly fees; (ii) the set-up fees and any SERVICE PROVIDER fees; (iii) the method of payment fees, if applicable; (iv) the charges for additional Services or use of Services; and (v) the charges for add-ons to the features included in CUSTOMER Package, if applicable; and (vi) any time and materials tracked by SERVICE PROVIDER. CUSTOMER will be responsible for paying all surcharges and any fees required by SERVICE PROVIDER and any applicable government entity including taxes required in connection with any purchases made from CUSTOMER website. All payments will be made in US dollars and are due immediately upon request.
Without exception, website design and development fees and additional fees incurred during development are due once the website is deemed Development Complete. Development Complete is defined by SERVICE PROVIDER and, per your agreement, that CUSTOMER website is functional with basic functions and matches the website designs approved by the CUSTOMER with or without content (images, text, products, shipping/tax info, merchant info). After Development Complete status, all monthly billing for any services contracted will start immediately. If there are functional bugs on the website that are identified 90 days from Development Complete, then they will be fixed at no cost to CUSTOMER. After 90 days, any and all issues are considered billable under time and material hourly rates.
CUSTOMER must provide accurate billing information including legal name, address, telephone number, and credit card or debit card number with proper expiration date, or ACH information and report all changes to this information promptly to SERVICE PROVIDER.
Charges may be billed on or after CUSTOMER billing cycle date to CUSTOMER method of payment on file each month for the Service including any additional charges incurred (e.g. usage, taxes and fees). SERVICE PROVIDER is not responsible for any fees resulting from charges billed by SERVICE PROVIDER including, but not limited to, overdrawn accounts or exceeding credit card limits. SERVICE PROVIDER may use various means to recover monies due. If SERVICE PROVIDER uses a collection agency or legal action to recover monies due, CUSTOMER agrees to pay all fees arising from or relating to the recovery of such monies, including all reasonable attorneys’ fees.
For monthly billing plans, CUSTOMER will be able to use the Service for any consecutive monthly period that has been paid in advance as described in the acceptance materials that CUSTOMER received as part of CUSTOMER sales transaction or on CUSTOMER order confirmation. For example, if CUSTOMER billing cycle begins on the sixth day of the month, then CUSTOMER payment due date (i.e. the date that the amount of CUSTOMER full monthly Service fee, including any and all applicable taxes and fees, must be received by SERVICE PROVIDER) will be prorated for that month and then will be on the first day of the next month and of each month thereafter. There may be some exceptions where billing is on a different cycle or is a month in the rears.
If CUSTOMER provided SERVICE PROVIDER with a valid credit or debit card verbally or in writing, CUSTOMER agrees to maintain valid and current credit or debit card information with SERVICE PROVIDER at all times. If CUSTOMER authorized SERVICE PROVIDER to automatically deduct (” ACH Debit “) CUSTOMER monthly Service fees and any other charges, fees, or taxes billed to CUSTOMER, from CUSTOMER checking or savings bank account, then CUSTOMER hereby reaffirms CUSTOMER agreement to the Recurring Automatic Bank Draft Authorization. CUSTOMER acknowledges and agrees that CUSTOMER authorizes SERVICE PROVIDER and that SERVICE PROVIDER does not need to obtain any additional authorization from CUSTOMER for any recurring payments, Services activated or automatic billing options. In addition, if CUSTOMER credit or debit card company provides updated credit or debit card information to SERVICE PROVIDER, CUSTOMER acknowledges that SERVICE PROVIDER does not need to obtain authorization from CUSTOMER for SERVICE PROVIDER to use such information to update CUSTOMER credit or debit card. SERVICE PROVIDER will email an e-receipt to CUSTOMER primary email address selected by or assigned to CUSTOMER during the subscription process (“Contact Email Address”) each month or if CUSTOMER designated a different billing email address, SERVICE PROVIDER will email the e-receipt to such billing email address each month. SERVICE PROVIDER does not send paper invoices. If CUSTOMER has been billed for a service via ACH or Credit Card and CUSTOMER has utilized the Services as defined by SERVICE PROVIDER, received a billing notice from SERVICE PROVIDER and has not notified SERVICE PROVIDER of any billing issues, then CUSTOMER waives all rights to charge back any past billing and agrees to pay a penalty of $10,000 to SERVICE PROVIDER if the CUSTOMER or its assignees attempt a chargeback of any kind.
SERVICE PROVIDER requires electronic payment via ACH or credit card for all billing and does not accept checks as a standard form of payment. Occasionally a check will be accepted but that does not waive the requirement for electronic billing. If payment by check has been accepted by SERVICE PROVIDER in writing, then payments by check must be received by SERVICE PROVIDER by the due date listed in CUSTOMER invoice. SERVICE PROVIDER will charge a processing fee each time CUSTOMER pays CUSTOMER’S monthly billing invoice. When CUSTOMER pays CUSTOMER fees by e-check, CUSTOMER also authorizes SERVICE PROVIDER to electronically process CUSTOMER payment. If CUSTOMER check is processed electronically, CUSTOMER checking account may be debited on the same day that SERVICE PROVIDER receives CUSTOMER check and neither CUSTOMER check nor a copy of CUSTOMER check will be included with CUSTOMER checking account statement. SERVICE PROVIDER will charge a fee for returned checks or returned bank drafts from CUSTOMER financial institution.
Delinquent accounts may be suspended or canceled at SERVICE PROVIDER’s sole discretion; however, charges will continue to accrue until the account is cancelled. If CUSTOMER pays CUSTOMER monthly Service fee to a third-party provider, CUSTOMER account also may be suspended for non-payment if CUSTOMER account is delinquent by 10 or more days.
If CUSTOMER upgrades to another Package or Service, any upgrade costs will be applied accordingly. Such upgrade will take effect immediately and CUSTOMER will be automatically charged, via the payment method CUSTOMER provided, the fees based upon CUSTOMER upgraded Package or Service. An upgrade of any Package or Service will begin a new Initial Term of twenty-four months for that Package and all active Service, unless otherwise specified in writing by SERVICE PROVIDER.
If CUSTOMER wishes to downgrade a service (reduction in service or price) then it must be approved by SERVICE PROVIDER and will require all services to be repriced. In the event a downgrade is approved, then a new proposal with the new pricing will be provided for signature by the CUSTOMER. Such downgrade will take effect immediately and CUSTOMER will be automatically charged, via the payment method CUSTOMER provided, the fees based upon CUSTOMER upgraded Package or Service. Any downgrade of any Package or Service will begin a new Initial Term of twenty-four months for that Package and all active Service, unless otherwise specified in writing by SERVICE PROVIDER.
CUSTOMER account will be automatically inactivated if CUSTOMER puts a stop payment on CUSTOMER account with CUSTOMER financial institution in connection with the payment of CUSTOMER monthly bill or notifies SERVICE PROVIDER of any intent to stop payments or cancel services. CUSTOMER account may also be automatically inactivated if CUSTOMER payment is declined or rejected on CUSTOMER account with CUSTOMER financial institution in connection with the payment of CUSTOMER monthly bill.
All charges are considered valid unless disputed in writing within thirty (30) days of the billing date and emailed to firstname.lastname@example.org.
Adjustments are not guaranteed and will not be made for charges that are disputed more than thirty (30) days after the billing date.
SERVICE PROVIDER reserves the right (i) to add and change fees or pricing associated with CUSTOMER Service and institute new fees or pricing upon email or invoice notice at least 30 days prior to the effective date of such new monthly fee or price and (ii) to change the fees or pricing associated with CUSTOMER account upon email or invoice notice at least 30 days prior to the effective date of such new fee. CUSTOMER understands that all invoice notices are electronic only and are notations on the electronic invoice.
SERVICE PROVIDER may use various means to recover monies due. If SERVICE PROVIDER uses a collection agency or legal action to recover monies due, CUSTOMER agrees to pay all fees arising from or relating to the recovery of such monies, including attorneys’ fees.
5. CANCELLATION AND TERMINATION
CUSTOMER may cancel CUSTOMER Service only by Mail Cancellation: Send registered or certified mail, return receipt requested to:
1604 Westgate Circle, Suite 150
Brentwood, TN 37027
A Cancellation of Service terminates the CUSTOMER Agreement. SERVICE PROVIDER does NOT accept cancellations by email or verbal notice.
In the event this Agreement is terminated prior to the end of the term defined in Section 2 and is not within the defined acceptable termination timelines of Section 2, CUSTOMER account will be immediately suspended and CUSTOMER agrees to pay Service Provider a termination fee and its Liquidated Damages within ten (10) days of the termination of this Agreement, as follows: (i) the sum of any active monthly Service fees and any fees and taxes multiplied by the number of months remaining in this Agreement; (ii) any amounts invoiced by Service Provider to Customer that are outstanding; (iii) and, any un-billed or previously discounted time and materials at a full rate of $175 per hour.
Upon any termination by Customer, SERVICE PROVIDER will NOT permit CUSTOMER to download or otherwise copy electronic materials, data, and files comprising website or any other marketing materials, as well as any emails residing on the servers unless all unpaid balances and the full amount (100%) of all fees contracted and for the full term, whether Services are completed or NOT, are paid in full and all licensing fees are confirmed. CUSTOMER will have 30 days from point of termination by CUSTOMER or SERVICE PROVIDER to pay all required fees. After 30 days SERVICE PROVIDER will delete all files and may not be able to recover any information. However, CUSTOMER may also request immediate removal of such information. SERVICE PROVIDER will try to satisfy CUSTOMER request but will not be under any obligation to do so. SERVICE PROVIDER will not be liable for any deleted electronic materials, data, and files. SERVICE PROVIDER reserves the right to retain certain information about CUSTOMER website such as work, logs and statistics for a period of time as needed for marketing, technical and legal reasons.
SERVICE PROVIDER may terminate CUSTOMER Service account at any time for any reason, including, without limitation, if (i) CUSTOMER account is delinquent because charges on CUSTOMER method of payment were refused for any reason, (ii) CUSTOMER failed to make payment when due or CUSTOMER did not provide SERVICE PROVIDER with CUSTOMER credit or debit card’s expiration date or expiration date of any other method of payment before the existing expiration date; (iii) SERVICE PROVIDER, in its sole discretion, believes CUSTOMER has breached this Agreement or any other SERVICE PROVIDER agreements or policies; or (iv) CUSTOMER use of the Service is prohibited by law; or (v) CUSTOMER has brought any legal actions against SERVICE PROVIDER. Termination notice will be sent to CUSTOMER via (i) a Contact Email Address or (ii) U.S. Mail to the billing address for CUSTOMER SERVICE PROVIDER account. Termination by the SERVICE PROVIDER will mean all Services will terminate immediately regardless of payment status. Upon termination by SERVICE PROVIDER under its sole discretion, SERVICE PROVIDER may immediately cancel all CUSTOMER Services and remove CUSTOMER website, including all of CUSTOMER materials, data and files, from SERVICE PROVIDER’s servers and CUSTOMER will have no right to copy or download such data or information; however, if CUSTOMER account was terminated by SERVICE PROVIDER due to nonpayment, CUSTOMER account will remain in inactive status for thirty (30) days and then CUSTOMER website will be permanently removed.
CUSTOMER cancelled or terminated account cannot be reactivated after 30 days.
6. BUSINESS DOWNTURN
This Agreement may be terminated immediately upon written notice by CUSTOMER in the event; (i) the CUSTOMER becomes insolvent or involved in a liquidation or termination of the business; (ii) the CUSTOMER files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, as long as such petition is not removed within ninety (90) days after such filing; (iii) the Customer business is operationally discontinued in any format under any entity without the intent of the Customer; or (iv) a receiver is appointed or there is an assignment for the benefit of such CUSTOMER’S creditors. Customer understands that SERVICE PROVIDER will solely decide at its own discretion whether a business qualifies for a “Business Downturn” termination.
CUSTOMER understands that moving the business or assets to another controlling entity or business does NOT qualify as insolvency. CUSTOMER shall be responsible for payment of all charges incurred as of the effective date of termination.
CUSTOMER understands that even though they are relieved of future payments because of a business downturn, the SERVICE PROVIDER will NOT permit CUSTOMER to download or otherwise copy electronic materials, data, and files comprising website or any other marketing materials, as well as any emails residing on the servers unless all unpaid balances and the full amount (100%) of all fees contracted and for the full term, whether Services are completed or NOT, are paid in full. CUSTOMER will have 30 days from point of termination by CUSTOMER to pay all contracted fees if they wish to receive a copy of the website and related files. After 30 days SERVICE PROVIDER will delete all files and will not be able to recover any information.
7. CUSTOMER ACCOUNT, PASSWORD, AND SECURITY
Upon request, CUSTOMER will receive a username, password, and other account information to provide access to appropriate services. CUSTOMER is responsible for (i) maintaining the confidentiality of both CUSTOMER password and CUSTOMER account and (ii) all activities that occur under CUSTOMER password and CUSTOMER account. CUSTOMER must notify SERVICE PROVIDER immediately upon discovering any unauthorized uses of the account information or any other breaches of security. CUSTOMER will be responsible for use of the Services by any person who uses CUSTOMER username and password to access the Service whether or not CUSTOMER specifically authorize such person’s use or actions. Usernames, passwords, email addresses and Internet Protocol (“IP”) addresses are SERVICE PROVIDER’s property and SERVICE PROVIDER may alter or replace them at any time.
The SERVICE PROVIDER Parties will not be liable for any loss or damage from CUSTOMER failure to comply with these security obligations. CUSTOMER acknowledges and agrees that under no circumstances will the SERVICE PROVIDER Parties be liable, in any way, for any acts or omissions by CUSTOMER, including any damages of any kind incurred as a result of such acts or omissions. For critical security purposes, SERVICE PROVIDER does not provide full admin access to websites or services and does not provide access to servers via Cpanel, FTP or any other access method.
8. MONITORING THE SERVICES
SERVICE PROVIDER has no obligation to monitor the Service but may do so to (i) comply with laws, regulations, or governmental or legal requests; (ii) protect the overall integrity of the Service hardware (including the SERVICE PROVIDER network); (iii) operate the technical aspects of the Service in a proper, effective, and reasonable manner; (iv) protect itself, its employees, or others; and (v) to enforce or prevent breaches of this Agreement or other SERVICE PROVIDER agreements or policies.
SERVICE PROVIDER will only disclose information regarding CUSTOMER use of CUSTOMER Service. SERVICE PROVIDER may immediately remove CUSTOMER material or information from SERVICE PROVIDER’s servers, in whole or in part, if SERVICE PROVIDER reasonably believes it infringes another’s property rights or violates the SERVICE PROVIDER Acceptable Use Policy, other SERVICE PROVIDER agreements or policies, or any laws or regulations.
SERVICE PROVIDER will use commercially reasonable efforts to schedule any maintenance outages in a way that minimizes the impact on subscribers; however, SERVICE PROVIDER cannot guarantee that CUSTOMER Service will not be interrupted and cannot always provide advance notice of such outages.
9. DISCLAIMERS AND LIMITATIONS OF LIABILITY
THE SERVICES ARE PROVIDED ON AN “AS IS”, “BEST EFFORT” AND “AS AVAILABLE” BASIS. SERVICE PROVIDER AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT (I) THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS OR (II) THE ACCURACY, SPELLING OR GRAMMAR OF THE CONTENT ON CUSTOMER WEBSITE. SERVICE PROVIDER AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, PRODUCT, EQUIPMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SERVICE PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, RESELLERS, SUPPLIERS AND VENDORS (COLLECTIVELY “SERVICE PROVIDER PARTIES”) WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, SUITS, COSTS OR DAMAGES, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH THE SERVICES, DIRECTLY OR INDIRECTLY, INCLUDING ARISING FROM (I) CONTENT ON CUSTOMER WEBSITE; (II) END USERS’ USE OF CUSTOMER WEBSITE; (III) OTHER PARTIES ACCESSING CUSTOMER DEVICE; (IV) SECURITY BREACHES; (VI) EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (V) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE) OF THE SERVICE PROVIDER WEB HOSTING SERVICE; (VI) CUSTOMER RELIANCE ON OR USE OR MISUSE OF THE SERVICE; (VII) THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES OR DATA (INCLUDING PERSONALLY-IDENTIFIABLE INFORMATION), ERRORS OR DEFECTS, DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, SERVICE INTERRUPTIONS, OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (VIII) INABILITY TO ACCESS THE SERVICE DUE TO CONNECTIONS, INTERNET ROUTING, FILTERING BY GOVERNMENT AGENCIES, HACKING, SPAMMING OR ANY OTHER CIRCUMSTANCE OUTSIDE THE CONTROL OF THE SERVICE PROVIDER PARTIES; OR (IX) THE USE OF THE SERVICE BY CUSTOMER OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS. THE SERVICE PROVIDER PARTIES WILL NOT BE OBLIGATED TO COMPENSATE CUSTOMER FOR ANY DOWNTIME OF CUSTOMER WEBSITE, WHETHER CAUSED BY CUSTOMER OR A SERVICE PROVIDER PARTY.
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE SERVICE PROVIDER PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY SERVICE PROVIDER PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. CUSTOMER EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
WITHOUT EXCEPTION, CUSTOMER AGREES THAT THE CUMULATIVE LIABILITY OF ANY SERVICE PROVIDER PARTY TO CUSTOMER FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM AND NO MORE THAN FIVE THOUSAND DOLLARS ($5,000) EVER.
CUSTOMER MAY HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
CUSTOMER agrees to defend, indemnify and hold the SERVICE PROVIDER Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that an SERVICE PROVIDER Party may sustain or incur by reason of CUSTOMER use or misuse of the Service or the use or misuse of the Service by anyone else through CUSTOMER account including, but not limited to, use or misuse of the Service (i) in violation of applicable laws or regulations or the terms of this Agreement or any other SERVICE PROVIDER agreement or policy; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; or (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data).
In addition, CUSTOMER agrees to defend, indemnify and hold the SERVICE PROVIDER Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages (including, but not limited to, direct, indirect and consequential), attorney’s fees and expenses that an SERVICE PROVIDER Party may sustain or incur in connection with the Content on CUSTOMER Website that SERVICE PROVIDER did not explicitly provide to CUSTOMER as part of the SERVICE PROVIDER Digital Content service or the Website Design Service.
11. LICENSE AND USE OF THE SERVICES
The names of SERVICE PROVIDER, the Service and other SERVICE PROVIDER products and services, and their related logos, are trademarks of SERVICE PROVIDER (“SERVICE PROVIDER Marks”). For certain Services and all websites, SERVICE PROVIDER is authorized to add “powered by SERVICE PROVIDER” or other similar branded statements on CUSTOMER web site. Otherwise, CUSTOMER agrees not use any SERVICE PROVIDER Marks on CUSTOMER website or anywhere without the prior written permission of SERVICE PROVIDER.
During the term of this Agreement and upon payment of all fees due and owing to SERVICE PROVIDER, SERVICE PROVIDER hereby grants, and CUSTOMER hereby accepts, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the Website files without any proprietary Services such as, but not limited to, SERVICE PROVIDER custom software theme, SEO and Digital Marketing work, reporting and analytic software, software licensed exclusively to SERVICE PROVIDER, etc., pursuant to the terms and conditions set forth herein. Any grant of use of proprietary Services is not be acceptable unless agreed to in a separate license agreement.
Any rights not expressly granted herein will be reserved for SERVICE PROVIDER and its licensors. The website theme source code is specifically excluded from the license granted hereunder. Except for the licenses set forth in this Agreement, nothing in this Agreement grants to or confers in CUSTOMER any license or right of ownership in any of the foregoing. CUSTOMER will not reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the Tools, SERVICE PROVIDER Digital Content or Website Design Service Materials, if applicable, except pursuant to reasonable backup procedures, or for use in CUSTOMER website pursuant to this Agreement, nor create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering, decompiling or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to CUSTOMER under this Agreement. This license will automatically terminate upon the termination of this Agreement unless a separate ongoing license of propriety services is granted.
In addition, CUSTOMER is not permitted to (i) use the SERVICE PROVIDER Digital Content or the Website Design Service Materials in a web page design whereby the SERVICE PROVIDER Digital Content or the Website Design Service Materials is in a format designed or intended for storage or re-use by others; (ii) use or permit the use of the SERVICE PROVIDER Digital Content or the Website Design Service Materials or any part thereof as a trademark or service mark, or claim any proprietary rights of any sort in the SERVICE PROVIDER Digital Content or the Website Design Service Materials or any part thereof; (iii) use the SERVICE PROVIDER Digital Content or the Website Design Service Materials with images of identifiable individuals, products or entities in a manner that suggests their association with or endorsement of any product or service; (iv) translate, reverse engineer, decompile, or disassemble the SERVICE PROVIDER Digital Content or the Website Design Service Materials; or (vi) rent, lease, assign, transfer or redistribute the SERVICE PROVIDER Digital Content or the Website Design Service Materials or a copy thereof, to another person or legal entity.
Any supplemental software code and supporting materials provided to CUSTOMER as part of support services for the SERVICE PROVIDER Digital Content shall be considered part of the SERVICE PROVIDER Digital Content and are subject to the terms and conditions of this Agreement and any software code and supporting materials provided to CUSTOMER as part of support services for the Website Design Service Materials shall be considered part of the Website Design Services Materials and are subject to the terms and conditions of this Agreement
The copyright and all other rights to the SERVICE PROVIDER Digital Content and the Website Design Service Materials will remain with the owners of the specific SERVICE PROVIDER Digital Content and Website Design Service Materials.
CUSTOMER agrees to use the Services only for lawful purposes and in compliance with the SERVICE PROVIDER Acceptable Use Policy , which is incorporated herein. CUSTOMER is solely responsible for the content, materials, files, data and links on CUSTOMER website (“Content on CUSTOMER Website”). CUSTOMER agrees and warrants that the Content on CUSTOMER Website and transmission of any data, images or materials from CUSTOMER website (i) will not violate any federal, state, local or foreign laws, rules or regulations, and (ii) will not violate the rights of any person, group or entity including the intellectual property rights protected by copyright, trade secret, patent, or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of “pirated” or other products that are not licensed to CUSTOMER. CUSTOMER will not use the network resources of SERVICE PROVIDER to impersonate another person or misrepresent authorization to act on behalf of others or SERVICE PROVIDER. Any emails sent in connection with CUSTOMER website must correctly identify the sender. Violations of any of these terms may result in termination of CUSTOMER use of the Services with or without notice.
Additionally, CUSTOMER hereby grants to SERVICE PROVIDER a nonexclusive, worldwide, perpetual, irrevocable, fully paid-up right and license to use, in perpetuity, the CUSTOMER’S business, business name, verbal and written quotes or its business logo in any form of marketing the SERVICE PROVIDER deems.
12. GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of Tennessee and venue for any disputes involving this matter shall be the trial courts of Williamson County Tennessee.
13. REVISIONS TO THIS AGREEMENT
SERVICE PROVIDER may revise, amend, or modify this Agreement at any time by posting the revised version of this Agreement on the SERVICE PROVIDER Web Site. The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to this Agreement can be provided upon request, if that request is submitted to SERVICE PROVIDER within 30 days of the revision. CUSTOMER’S continued use of the Service after the date of the revised version constitutes CUSTOMER acceptance of all of the revisions. If CUSTOMER does not agree to the revisions in the revised version, CUSTOMER’S sole and exclusive remedy will be to terminate CUSTOMER account and use of the Service and SERVICE PROVIDER will bill CUSTOMER for the remaining unpaid monthly payments and any unpaid setup, design or development fees as per Section 5. SERVICE PROVIDER is under no obligation to provide any notice of revisions though it may do so.
CUSTOMER may not assign CUSTOMER rights or delegate any of CUSTOMER duties under this Agreement without the prior written consent of SERVICE PROVIDER, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. SERVICE PROVIDER may assign any work, obligations or other performance required of SERVICE PROVIDER under this Agreement without CUSTOMER consent. SERVICE PROVIDER will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work backlog slow-downs or other labor-related activity.
Service Provider does not subcontract its Services but in the event Service Provider does decide, at its sole discretion to do so, Service Provider may freely subcontract its duties and obligations under this Agreement.
16. INDEPENDENT CONTRACTOR
Service Provider is acting as an independent contractor in its capacity under this Agreement. Nothing contained in this Agreement or in the relationship of the Customer and Service Provider shall be deemed to constitute a partnership, joint venture, or any other relationship between the Customer and Service Provider except as is limited by the terms of this Agreement.
17. SCHEDULED MAINTENANCE
Service Provider reserves the right to take down any Services to conduct routine maintenance or changes (“Scheduled Maintenance”). Service Provider will use commercially reasonable efforts to perform Scheduled Maintenance outside of regular business hours. Service Provider will not be responsible for any damages or costs incurred by Customer, if any, for Scheduled Maintenance.
Customer agrees that this Agreement shall remain strictly confidential and that there will be no statements (public or private) made with respect to this Agreement. Both parties also agree that they will not solicit each other’s staff in any form and will not make, cause, encourage, or assist to be made, any statements, comments or remarks, whether verbal, written or in electronic form, which are derogatory, defamatory, slanderous, or libelous to the other or about their respective business, principals, employees, directors, customers or agents. Parties agree to a minimum $25,000 penalty paid to the other if this clause is violated.