Full Domain Website Customer - General Terms and Conditions
1. Rights and Obligations of NetWerx Creative, Inc.
1.1 NetWerx Creative, Inc. shall provide electronic computer worldwide web content hosting services to Customer pursuant and subject to the specific terms and conditions set forth in this Agreement. NetWerx Creative, Inc. grants to Customer a non-exclusive license to use those products and services (the "Products and Services") set forth and more particularly described in original bid for services. The Products and Services are provided only to Customer and only for the content provided by the Customer ("Customer Content").
1.2 NetWerx Creative, Inc. reserves the right to perform any required maintenance and/or emergency work to the network as needed to preserve the overall integrity of the Products and Services. Without limiting any other term or condition of this Agreement, NetWerx Creative, Inc. shall not be responsible for any loss of service or other damages or losses caused, directly or indirectly, for any reason, by such activities.
2. Rights and Obligations of Customer; Customer Usage of Service
2.1 Products and Services are only to be used for lawful purposes. Customer shall not transmit, retransmit, or store material which is in violation of (i) any local, state, federal, or international rule, law, regulation or treaty, (ii) the Acceptable Use Policy; or(iii) any community or government standard or accepted Internet policy. Without limiting the scope or generality of the foregoing, actions such as misuse of copyrighted materials (including, without limitation, music or audio or video materials) or other intellectual property and/or proprietary information or materials; misappropriation of trade and other distinguishing marks; and the use of the Products and Services for defamatory, obscene, or threatening purposes is prohibited. Any such violation may be deemed a material breach by Customer of this Agreement and, in such instance, NetWerx Creative, Inc., in its sole discretion, may immediately disable or terminate the Products and Services.
2.2 Customer agrees, upon notice from NetWerx Creative, Inc., to promptly eliminate any hazard, interference or service interruption or problem that any hardware or software, whether or not provided by NetWerx Creative, Inc., is causing or is likely to cause.
2.3 The Products and Services are for use by Customer only and only for the distribution of Customer Content on the Service. Customer may not, for any reason, host other organizations, including, but not limited to, fee generating or non-revenue generating business activities.
2.4 Customer specifically authorizes NetWerx Creative, Inc. to distribute Service usage statistics to selected recipients without identifying Customer by name. Any public distribution of these statistics will require Customer approval.
2.5 NetWerx Creative, Inc. backs up its server computers as part of its internal maintenance of the Service; however, NetWerx Creative, Inc.'s obligation to Customer is for hosting and display only. NetWerx Creative, Inc. maintains a backup copy of customer content at it's facility only if customer content was developed by NetWerx Creative, Inc. Customer understands and agrees that NetWerx Creative, Inc. does not guarantee any storage or backup for Customer Content or other data. Customer is solely responsible for providing any storage, back-up and other archival support with respect to the Content, when it is created by Customer or for Customer by a third party.
3.Billing and Payment; Taxes
3.1 Rates and charges for NetWerx Creative, Inc.'s hosting services are $300 annually or $30 per month. This fee includes only hosting services, i.e., storage of the client web site on the server, along with hosting amenities including but not limited to POP3 e-mail account setup and maintenance, web site statistic usage, autoresponder usage, e-mail alias usage and use of any pre-installed scripts in cgi-bin. Rate does not include maintenance of content or special script installation. Any work performed on content of web site or special script installation will be billed at customary hourly rate, or at per page rate agreed to in original bid for services. Hourly rate or per page rate are subject to change at any time; notification will be provided to customer at time service is rendered.
3.2 Customer billing shall commence upon the date at which the Products and Services are operational. Billing will be on a monthly basis unless customer contacts NetWerx Creative, Inc. to set up annual plan. Term of annual plan is one year from date of inception. Monthly billing is considered service on a month-to-month basis; if customer wishes to terminate hosting services, written 30 days notice is required.
3.3 Customer agrees to pay all fees incurred by Customer under this Agreement. Customer may prepay charges for the entire Agreement or may pay charges on a monthly basis. Those Customers electing to pay on a monthly basis shall be invoiced in advance at the beginning of each month. Any additional charges will be invoiced in arrears and will be billed in subsequent monthly statements or in separate invoices. All invoices shall be due upon receipt or upon terms agreed to on date which Products and Services are operational..
3.4 All charges more than thirty (30) days overdue shall incur interest charges of the higher of (i) 1.5% per month; or (ii) the maximum interest rate permitted by law. Any Customer with charges more than forty-five (45) days overdue may, in the sole discretion of NetWerx Creative, Inc., be subject to termination in accordance with Section 4.2.1 hereof.
3.5 In the event of any termination of this Agreement, whether by cancellation by NetWerx Creative, Inc. or otherwise, Customer will remain responsible for all uncollected balances, including any cancellation charges, set-up fees, equipment and software costs, late fees, and costs of collection, including reasonable attorneys'fees. In the event that, for any reason, the Agreement is terminated or canceled prior to the expiration of its then current term, Customer shall, in addition to any other fees and charges for which it is responsible, owe NetWerx Creative, Inc. a lump sum equal to all charges for the remainder of the then current term, which sum shall be due and payable upon the date of such early termination or cancellation.
3.6 Customer is responsible for and agrees to pay all taxes applicable to the Products and Services and to any other products, services, or other materials provided to Customer hereunder or their use by Customer, except for taxes based upon the income of NetWerx Creative, Inc., which taxes shall be paid by NetWerx Creative, Inc..
4. Term
4.1 Unless otherwise terminated or canceled in accordance with the terms of this Agreement, the term of this Agreement ("Term") shall be the period beginning on the date hereof and terminating one year from the date hereof. Unless otherwise terminated in writing by either party no less than thirty (30) days prior to the end of the initial term or any renewal thereof, the Term shall automatically be renewed for successive one-year periods.
4.2 In addition to any other relevant terms and conditions contained in this Agreement, this Agreement may be terminated upon the occurrence of any of the following:
4.2.1 After forty-five (45) days of non-payment from the date of any invoice rendered to Customer, NetWerx Creative, Inc. may, in its sole discretion, terminate the Products and Services (and the Customer's use thereof) and this Agreement. If the Customer subsequently desires to reestablish service, NetWerx Creative, Inc. shall retain the right to charge Customer additional set-up and reinstatement fees.
4.2.2 NetWerx Creative, Inc. may terminate the Products and Services and this Agreement, in its sole discretion, at any time upon thirty (30) days notice to Customer. If Customer is using a unique domain name for its service, NetWerx Creative, Inc. shall make commercially reasonable efforts to work with any new service provider to provide transition support for this domain name.
4.2.3 NetWerx Creative, Inc. may immediately terminate the Products and Services and this Agreement:
(i) If Customer Content or conduct shall be in violation of this Agreement, including, without limitation, in violation of any applicable law, rule or regulation or of any policy or guideline of NetWerx Creative, Inc. or any applicable authority processing jurisdiction.
(ii) In the event of some unanticipated fact, development condition or event that, in NetWerx Creative, Inc.'s reasonable opinion, causes continued association with Customer or Customer Content to have a materially adverse reflection upon NetWerx Creative, Inc., including, without limitation, any negative press related to Customer or any parent or subsidiary company or any of their respective principals or executive officers; or
(iii) If Customer shall be unable to pay its debts when they become due, make an assignment for the benefit of creditors, file any petition or have any petition filed against it under the bankruptcy or insolvency laws of any jurisdiction, have or suffer a receiver or trustee to be appointed for its business or property, or be adjudicated a bankrupt or insolvent.
4.2.4 NetWerx Creative, Inc. may terminate the Products and Services and this Agreement if a Customer is in breach of this Agreement and such breach is not cured within fifteen (15) days of written notice to Customer specifying the nature of such breach.
4.2.5 Either party may terminate this Agreement for any reason upon notice to the other of its intention to terminate at least thirty (30) days prior to the end of the term of this Agreement or any renewal thereof.
4.3 The remedies available to NetWerx Creative, Inc. as set forth in this Section 4 and in Section 3.5 are not exclusive, and shall be in addition to any other remedies, which NetWerx Creative, Inc. shall have at law or in equity.
5. Ownership; Proprietary Rights
5.1 Customer acknowledges that NetWerx Creative, Inc. shall retain sole and exclusive right, title and ownership in and to all logos, trademarks, service marks, trade and business secrets, copyrights, patents, and other intellectual and proprietary rights (collectively, the "NetWerx Creative, Inc. Intellectual Property Rights") owned by it or affiliate companies. It is further understood by the parties hereto that no title to nor ownership of the NetWerx Creative, Inc. Intellectual Property Rights or any part thereof, is transferred to Customer and NetWerx Creative, Inc. shall retain all rights therein. Customer shall not use or exploit, or permit others to do so, directly or indirectly, any NetWerx Creative, Inc. Intellectual Property Rights.
5.2 NetWerx Creative, Inc. acknowledges that Customer shall retain sole and exclusive right, title, and ownership in and to all logos, trademarks, service marks, trade and business secrets, copyrights, patents, and other intellectual and proprietary rights (collectively, the "Customer Intellectual Property Rights") owned by it, its parent or affiliate companies, including, without limitation, all Customer Intellectual Property Rights in and to the Customer Content. It is further understood by the parties hereto that no title to nor ownership of the Customer Intellectual Property Rights, or the Customer Content, or any part thereof, is transferred to NetWerx Creative, Inc. and Customer shall retain all rights therein.
5.3 Without limiting the terms or conditions set forth in Section 5.1 hereof, Customer agrees that title, property rights, software licenses, hardware licenses and agreements, including all NetWerx Creative, Inc. Intellectual Property Rights are and shall remain with NetWerx Creative, Inc., whether or not they are embedded in the Products and Services. Customer will protect and keep confidential all Products and Services used by it and shall not attempt to copy, examine, in any way alter, or re-engineer, tamper with or otherwise misuse the NetWerx Creative, Inc. Intellectual Property Rights, and/or the Products and Services.
6. Limitation of Liabilities
6.1 In no event shall either party be liable one to the other, for any indirect, special or consequential damages arising out of or in connection with this Agreement, even if informed of the possibility of such damages.
6.2 Without in any way limiting the scope or generality of Section 6.1, in no event shall NetWerx Creative, Inc., or its affiliated entities or agents or representatives, distributors or suppliers be liable to Customer, any party claiming under or through Customer, or any other party for any damage of any kind arising from Customer's use or inability to use, the Products and Services, equipment, software, documentation or other materials or the inter-connection, any inter-connected devices or other-wise hereunder, in whole or in part, regardless of the basis of such claim, even if NetWerx Creative, Inc. has been advised of the POSSIBILITY of such damages. This disclaimer of liability includes damages for loss of business profits, anticipated revenue, Information, data, the interruption of Customer's Business and incidental, in-direct and consequential damages. In no event shall NetWerx Creative, Inc.'s liability hereunder, whether in contract, tort (including negligence) or otherwise, exceed the equivalent of the Service fees applicable to the three months immediately preceding the date the claim arose. The parties recognize and agree that the Products and Services could not be made available to Customer under these or similar terms without a substantial increase in cost if NetWerx Creative, Inc. were to assume a greater degree of liability to Customer.
6.3 In addition to, and without, in any way, limiting the scope and generality of the terms and condition of Sections 6.1 and 6.2 hereof, Customer specifically agrees that:
6.3.1 NetWerx Creative, Inc. assumes no responsibility for any commercial transactions attempted or completed involving any of the Products and Services or third party software and other products and services used by Customer designed to enable such transactions. Customer's rights and obligations with respect thereto are subject solely to any agreements between Customer and any third party.
6.3.2 NetWerx Creative, Inc. does not monitor or exercise control over the content of the information residing on its web-hosting servers or transmitted through its network. Use of any information obtained via the Products and Services is at Customer's own risk. NetWerx Creative, Inc. specifically denies and disclaims any responsibility for the accuracy, quality or nature of information obtained through its services. Any access to other networks connected to NetWerx Creative, Inc.'s network must comply with the rules of such other network.
7. Representations and Warranties
7.1 NetWerx Creative, Inc. represents and warrants to Customer that:
7.1.1 NetWerx Creative, Inc. has the power and authority to enter into this Agreement and to perform fully its obligations hereunder.
7.1.2 NetWerx Creative, Inc. is under no contractual or other legal obligations which shall in any way interfere with its full, prompt, and complete performance hereunder.
7.2 Customer represents and warrants to NetWerx Creative, Inc. that:
7.2.1 Customer has the power and authority to enter into this Agreement and to perform fully its obligations hereunder.
7.2.2 Customer is under no contractual or other legal obligations, which shall in any way interfere with its full, prompt, and complete performance hereunder.
7.2.3 Customer owns all right, title and interest in and to Customer Content and all components thereof, including, without limitation, all right, title and interest in and to all software and other technology used in connection therewith and to all logos, intellectual and commercial property and other proprietary information and material used in connection therewith or has properly licensed such rights from a third party.
7.2.4 Neither Customer Content nor any component thereof including, without limitation, any software or other technology used in connection therewith will, directly or indirectly, infringe upon the rights of any third party.
7.2 With respect to the Products and Services provided herein or any transactions contemplated hereby, NetWerx Creative, Inc. makes no warranties of any kind, express or implied, including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose. Without limiting the scope or generality of the foregoing, Customer acknowledges and agrees that NetWerx Creative, Inc. provides the Products and Services "as is" without warranty of any kind. Customer is responsible for assessing its own computer and transmission needs and the results to be obtained there from. In the event that NetWerx Creative, Inc. provides Customer with products in connection with the Services, such as third party software, then NetWerx Creative, Inc. also provides these products "as is" without warranty of any kind, express or implied.
8. Indemnification
8.1 Customer will indemnify NetWerx Creative, Inc. from and against any and all claims, liabilities, costs and expenses arising out of:
8.1.1 Any breach of any term or condition of this Agreement, including any breach of any representation or warranty contained herein;
8.1.2 the content and distribution of Customer Content (and/or the use thereof or reliance thereon) including, without limitation, any claims, damages, liabilities, costs and expenses based upon alleged libel, slander, defamation, invasion of the right of privacy, or violation or infringement of copyright or patent or the intellectual, commercial or other proprietary rights of any third party.
8.2 To the extent known to NetWerx Creative, Inc., NetWerx Creative, Inc. shall give Customer written notice of any claim or action for which Customer's indemnity applies. Customer shall promptly undertake the defense of any such claim or action and permit NetWerx Creative, Inc. to participate therein at the Indemnified Party's own expense.
9. Notices
9.1 Any notice in connection with this Agreement shall be in writing and shall be delivered in person to the President or the Vice President of the person or entity receiving notice or by certified or registered mail, return receipt requested, or by overnight courier, postage or charges prepaid, at the addresses listed on page one of this Agreement. If notice is given by personal delivery, notice shall be deemed given on delivery; if notice is mailed, notice shall be deemed given on the fifth (5th) day following deposit in the U.S. mail, first-class postage prepaid; if notice is sent by express mail or overnight courier service, notice shall be deemed given on the next business day following deposit with such express mail or overnight courier service, next business day delivery charges prepaid.
9.2 Any person or entity may change its address by giving notice to the other persons and entities in the manner set forth above.
10. Assignment
10.1 Customer may not sell transfer or assign this Agreement, whether by the sale or transfer of assets or equity, without the prior written consent of NetWerx Creative, Inc., except to entities completely controlling or controlled by Customer. Prior to any permitted assignment or transfer by Customer, all charges and other fees due and owing to NetWerx Creative, Inc. must be paid in full. NetWerx Creative, Inc. may assign or transfer any of its rights or obligations under this Agreement without the consent of Customer, and in such event, NetWerx Creative, Inc. shall be relieved of all obligations arising thereafter and Customer shall look solely to the assignee for enforcement of such obligation.
10.2 This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors and permitted assigns.
10.3 Any assignment or transfer in violation or breach of the terms and/or conditions of this Agreement shall be considered null and void.
11. Confidentiality; Proprietary Information
11.1 Each party agrees to regard and preserve as confidential all confidential information of the other and all information regarding the business and activities of the other, their customers, clients, and suppliers that may be obtained or developed as a result of this Agreement. Each party agrees that, unless it has obtained the other's prior written consent, it shall hold all such confidential information in trust and confidence for the other, and except as specifically permitted by this Agreement, shall not directly, or indirectly, disclose or transmit to any person firm or entity or use, directly or indirectly, any such information for its own benefit or the benefit of any other party, unless property authorized by the other party in writing.
11.2 For the purposes hereof, the terms and conditions of this Agreement shall be deemed and considered confidential information.
11.3 Even when disclosure is permitted under the provisions hereof, the parties agree to limit disclosure of confidential information to a "need to know" basis, and only to employees or representatives for purposes directly related to the permitted use of such information.
11.4 Information shall not be considered confidential to the extent, but only to the extent that such information is:
11.4.1 already known to one party free of any restriction at the time it is obtained.
11.4.2 is or becomes publicly known or available through no wrongful act or breach.
11.4.3 is rightfully received from a third party without restriction.
11.4.4 is independently developed without use or reference to confidential information of the other.
11.5 It is specifically understood and agreed that no party will be considered in breach of this Agreement if it discloses confidential information to a court of law or other authorized agency pursuant to a valid subpoena or other final order provided that, in such instances, every reasonable effort will be made to timely notify the other party of such circumstances and every reasonable effort will be made by the party required to divulge such information to continue to protect the confidential nature of such information.
11.6 Each party acknowledges that certain elements of the other's business records including but not limited to any applicable databases, programs, protocol, software, displays and manuals (as well as the selection, arrangement and sequencing of the contents thereof) (the "Proprietary Information") are proprietary and unique to the respective parties as to which copyright, patent, trademark, trade and business secret and other proprietary rights may be held or otherwise be applicable. Without limiting the scope or generality of any term or condition of this Section 11, all Proprietary Information shall be considered confidential information hereunder and each party agrees to take or cause to be taken any and all reasonable precautions to maintain the secrecy and confidentiality of the other's Proprietary Information, and to comply with all copyright, trademark, trade secret, patent and other laws necessary to protect the rights in the Proprietary Information.
11.7 Each party acknowledges and agrees that in the event of a breach or threatened breach of the foregoing provisions, it will have no adequate remedy in money or damages and accordingly shall be entitled to injunctive relief; provided, however, that no specification of any legal or equitable remedy shall be construed as a waiver or prohibition against any other contractual, legal or equitable remedy available to either party hereunder.
12. Relationship of the Parties
12.1 It is understood that this Agreement does not create any partnership, joint venture, agency or employee relationship between the parties and that no personnel of Customer will be deemed to be an employee, agent or independent contractor of NetWerx Creative, Inc. Customer will pay and be solely responsible for all taxes and monies payable under any and all applicable laws, rules, regulations and orders with respect to its employees and will hold NetWerx Creative, Inc. harmless from any liability there from. No subscriber, user of Customer's services or client of Customer shall be deemed to have any privity of contract or direct contractual or other relationship with NetWerx Creative, Inc. by virtue of this Agreement.
13. Headings
13.1 Headings are for reference only and shall not affect the meaning of any of the provisions of this Agreement.
14. Severability
14.1 The invalidity or unenforceability of any provision of the Agreement shall in no wavy affect the validity or enforceability of any other provision of this Agreement.
15. Modifications/Waivers
15.1 No provision of this Agreement may be modified, amended or waived except in a writing signed by the person or entity against whom enforcement of such modification, amendment or waiver is sought.
16. Force Majeure
16.1 Neither party shall be liable to the other for any delays, preemptions or other failure to perform, when such delays, preemptions or failures are due to any cause beyond the control of the party whose performance is so affected, including, without limitation, an act of God, fire, war, strike, riot, labor dispute, national disaster, technical failure (including the failure of all or part of the equipment of FutureQuest or others), failure of performance of any entity with which NetWerx Creative, Inc. has a contract for the supply of products or services, or any other reason beyond the control of the party whose performance is prevented during the period of such occurrence, including any legal prohibition, decree, regulation, or requirement of any governmental authority having jurisdiction ("Force Majeure Event"). In the event of a Force Majeure Event, the non-performing party shall notify the other parties of the nature and anticipated length of continuance of such Force Majeure Event, and during such period both parties shall be executed from performance.
17. Advertising and Publicity
17.1 NetWerx Creative, Inc. reserves the right to publicly display work performed for client in NetWerx Creative, Inc's portfolio including, but not limited to an online link to client web site from NetWerx Creative, Inc. web site portfolio and a link to NetWerx Creative, Inc. web site from client web site.
18. Cumulative remedies
18.1 The remedies available to either party under this Agreement are cumulative; each party specifically reserves and does not waive all remedies and rights it may have under this Agreement, in law, or in equity.
19. Applicable law
19.1 This Agreement is subject to all applicable federal, state, and local laws, rules and regulations. This Agreement and all collateral matters relating thereto shall be construed in accordance with the internal laws of the State of Michigan, applicable to agreements fully made and to be performed therein, irrespective of the place of actual execution and/or performance of the parties hereto and without regard to any conflict of laws rules.
20. Waiver
20.1 No waiver of, acquiescence in or consent to any breach of or breach of or default under this Agreement shall be deemed a waiver of, acquiescence in or consent to any other breach or default occurring at any time.
21. Obligations surviving termination
21.1 Notwithstanding any termination of this Agreement, the following rights and obligations shall survive any such termination to the degree necessary to permit their fulfillment or discharge:
21.1.1 NetWerx Creative, Inc.'s right to receive and Customer's obligation to pay all amounts and sums payable to NetWerx Creative, Inc. by Customer pursuant to the terms of this Agreement.
21.1.2 Any rights or remedies under Sections 5, 6, 7, 8 and 11 of this Agreement, and any cause of action or claim of NetWerx Creative, Inc., whether or not accrued at the time of termination, because of any breach of or failure to perform any obligation by Customer under this Agreement.
--------------------------------------------------------------------------------
Client
Signature
--------------------------------------------------------------------------------
Company Name
--------------------------------------------------------------------------------
NetWerx Creative, Inc.
-------------------------------------------
Date
©NetWerx
Creative, Inc. 2007
All Rights Reserved
Web Hosting Agreement