A. Company is in the business of providing Website Hosting Services.
B. Client desires to hire Company to provide such services.
NOW THEREFORE, in consideration of the promises herein contained and other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the undersigned parties, intending to be legally bound hereby, agree as follows:
1. Website Hosting Services. Company agrees to provide Client with services for hosting a Website (the “Website”) on the World Wide Web portion of the Internet (the “Hosting Services”). Company’s web server maintaining the Website (the “Host Server”) will be located within Company’s facility or a hosting provider or colocation facility subcontracted by Company. Company shall provide the Hosting Services so that the Website is accessible to third parties via the World Wide Web portion of the Internet as specified in this Agreement. Company is responsible only for providing the Hosting Services, and not for providing any services or performing any tasks not specifically described in this Agreement.
2. Client Responsibilities. Client shall provide to Company all materials comprising the Website (the “Client Content”), which shall be in a correct format (as specified by Company in consultation with Client). The Client Content shall be properly adapted and translated by Client for posting to the Host Server so that the Website may be accessed via the Internet. Throughout the term of this Agreement, Client is solely responsible for all updates or modifications to the Client Content.
3. Company Responsibilities.
3.1. Availability. Within a reasonable time after receipt of the Client Content, Company will make the Website available on the World Wide Web (the “Installation Date”). Thereafter, Company will use commercially reasonable efforts, pursuant to the terms and conditions set forth in this Agreement, to make the Website accessible via the World Wide Web portion of the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and will use reasonable efforts to ensure reasonable response times for users accessing the Website. Company shall incrementally backup the Website and store the backup materials in a safe and secure environment. Upon the termination of this Agreement, after the payment of all fees called for herein, Company shall use commercially reasonable effort to assist in the transfer of the Website to the computer system owned and operated by Client and/or its designated third party contractor.
3.2. Security. Company shall endeavor to keep the site files and data as secure as possible, but makes no warranties about the security of any site code or data. Should the Website files or content, whether provided by Company or the Client, become compromised through any manner of security breach or exploit, Company shall, at its sole discretion, take down the site, repair the files and data, and bill the Client for the work at prevailing hourly rates. Company will communicate with the Client regarding the nature of the breach or exploit and the nature of the resolution.
4. Domain Name Registration. Client shall provide Company with a registered domain name. If Client does not have a registered domain name, Company will, upon request, use commercially reasonable efforts to register domain name(s) selected by Client provided that such domain name is available for registration and does not violate any registration services’ policies, or any law or regulation for a charge of $75. In the event of any dispute arising out of or related to Client’s domain name used in connection with the Website, upon Client’s request, Company will attempt to register an alternative domain name chosen by Client and attempt to make the Website available under such alternative name (all at Client’s sole expense).
5. Ownership of Intellectual Property and Equipment; Licenses.
5.1. Client Content. Client shall retain all right, title, and interest, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights, in the Client Content. Client assumes sole responsibility for the accuracy of any Client Content or other materials provided to Company for either authoring or hosting. Client hereby grants Company a non-exclusive, royalty-free license for the term of this Agreement to use, copy, modify, adapt, perform and display the Client Content solely as necessary to fulfill its obligations pursuant to this Agreement. Upon termination or expiration of this Agreement for any reason whatsoever, all rights granted to Company pursuant to this Section immediately revert to Client.
5.2. Company Equipment. Company retains all rights to the Hosting Services and any computer hardware, software, telecommunications or other equipment, including the Host Server, used to provide the Hosting Services (collectively, the “Company Equipment”). At no time shall Client have any ownership, property, or any other rights in, nor file any lien on, any of the Hosting Services or the Company equipment.
6. Confidentiality. Neither party shall disclose to any person or entity, directly or indirectly, without the prior written approval of the other, any confidential information relating to the other party obtained by virtue of this Agreement, except on a confidential basis to its business, legal and financial advisors or as required to be disclosed under applicable law or by legal process. “Confidential Information” shall include, but not be limited to software, technical processes and formulas, source or object code, product designs, sales cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data, and the terms of this Agreement. Confidential information does not include any information that is (i) generally known or available to the public through no act of the receiving party, (ii) already known to the receiving party at the time of receiving the confidential information, (iii) independently developed by the receiving party, or (iv) furnished to the receiving party by a third party with the right to do so.
7. Billing and Payment.
7.1. Annual Fee; Monthly Fee; Term. Client will be invoiced on an annual basis the "Annual Fee" of $300 OR on a monthly basis the “Monthly Fee” of $27/month for the Hosting Services, unless otherwise indicated on the invoice, and payment of such fees will be due within 5 days of the date of each invoice, unless otherwise stated. The Term of this Agreement shall be for twelve (12) months. Client shall remit payments in such manner which Company from time to time directs (e.g., secure debit/credit card processing, electronic fund transfer, ACH).
7.2. Late Payment. Client’s failure to pay any fees when due shall be considered a material breach of this Agreement, and Company may do any or all of the following: (i) assess late charges of the greater of one and one-half (1.5%) per month or the maximum allowable under applicable law; (ii) suspend performance of the services, and terminate the Agreement without penalty; or (iii) require future payments hereunder to be made in advance of services being rendered by Company. Any suspension or termination of services will not relieve client from paying past due fees plus late charges and in event of collection enforcement, client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys’ fees, court costs, and collection agency fees.
7.3. Taxes. Client shall pay or reimburse Company for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Company under this Agreement; excluding, however, income taxes on profits which may be levied against Company.
8.1. Client. Client represents and warrants that: (a) Client has the power and authority to enter into and fully perform its obligations under this Agreement and to grant the rights granted in this Agreement; (b) The content, material, messages and data transmitted or made available through the services (including Client Content) do not and shall not contain any material that is inaccurate or that violates any applicable law, rule or regulation (including, without limitation, export laws) or that infringes upon any common law or statutory right of any person or entity, including, without limitation, any proprietary, contract, moral, privacy or publicity right, copyright, patent, trademark, trade secret, or any other third party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the Website; (c) The content, material, messages and data transmitted or made available through the services (including Client Content) do not and shall not contain any material that, in Company’s good faith judgment, is obscene, threatening, malicious, defamatory, libelous, slanderous, pornographic or which otherwise could expose Company to civil or criminal liability; (d) Client has obtained any authorization(s) necessary for hypertext links from the Website to other third party Web sites; and (e) Client will not use the services to send unsolicited commercial e-mail, or engage in any other offensive or harassing conduct, or conduct that unreasonably interferes with Company’s ability to manage its network facilities or provide similar services to other customers. In addition to any other remedy set forth in this Agreement, Company reserves the right to immediately remove from the Website any material which violates any of the above warranties and/or to immediately suspend or disable any services necessary to remedy any violation or potential violation of the above warranties.
8.2. Company. Company represents and warrants that (a) Company has the legal right and authority to provide the Hosting Services and (b) the Company equipment does not infringe upon any copyright, patent, trademark, trade secret, or any other intellectual property right of any third party.
8.3. No Other Warranty. OTHER THAN THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION, ANY EQUIPMENT PROVIDED (INCLUDING, WITHOUT LIMITATION, THE COMPANY EQUIPMENT) AND ALL SERVICES PERFORMED PURSUANT TO THIS AGREEMENT ARE PROVIDED AND PERFORMED ON AN “AS IS” BASIS, AND CLIENT’S USE OF THE SERVICES IS AT ITS OWN RISK. COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY SPECIFICALLY DOES NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
9. Limitation of Liability; Damages. COMPANY’S SOLE LIABILITY TO CLIENT FOR ANY LOSS, LIABILITY OR DAMAGE, INCLUDING ATTORNEY’S FEES, FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY EXHIBIT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO CLIENT’S ACTUAL DIRECT OUT- OF-POCKET EXPENSES WHICH ARE REASONABLY INCURRED BY CLIENT AND SHALL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID TO COMPANY BY CLIENT UNDER THIS AGREEMENT DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR LOST PROFITS, LOST DATA, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF THE BASIS OF THE CLAIM.
10. Breach; Cancellation. If either party breaches this Agreement, such party shall be deemed in “Default” if such party (the “Defaulting Party”) fails to cure the breach within 10 days after the non-breaching party’s notice thereof. In addition to other rights and remedies (at law or equity), in case of Default the non-breaching party shall have the right to earlier terminate this Agreement upon 15 days’ notice to the Defaulting Party. In case of Client Default (including, without limitation, Client failure to timely pay the Premium), Company shall have all rights and remedies available to it at law and equity (including, without limitation, for all costs, expenses, damages, attorney's fees and other amounts).
11. No Refund; Payment Obligations. Upon termination of this Agreement, Client shall not be entitled to any refund of any amounts paid to Company in anticipation of services. Termination of this Agreement shall not relieve Client from its payment obligations under this Agreement.
12. Force Majeure. Company shall not be liable for any failure to perform its obligations under this Agreement because of circumstances beyond the reasonable control of Company, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government or governmental authority, declarations of government, transportation delays, power failure, computer failure, telecommunications failure, and any other events beyond the reasonable control of Company.
13. No Assignment by Client. Client may not assign this Agreement or otherwise sell or transfer any of Client’s rights or interests hereunder.
14. Publicity. All publicity of Company and Client’s relationship or the Services shall be subject to Company’s prior approval.
15. Entire Agreement. This Agreement contains the entire understanding of the parties and supersedes all prior oral and written communications, proposals and agreements between the parties concerning the subject matter hereof.
16. Amendments and Modifications. Any alterations, modifications or amendments of a provision of this Agreement shall not be binding unless signed by the party against whom enforcement is sought.
17. Severability. If a provision of this Agreement is rendered invalid, void or unlawful, the remaining provisions shall remain in full force and effect.
18. Captions. The headings and captions of this Agreement are inserted for reference convenience and do not define, limit or describe the scope or intent of this Agreement, or any particular section, paragraph, or provision.
19. Governing Law, Jurisdiction and Waiver of Venue. This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of Colorado regardless of the fact that any of the parties hereto may be or may become a resident of a different country, state, or jurisdiction. Any suit or action arising out of this Agreement shall be filed in a court of competent jurisdiction within the County of Arapahoe, State of Colorado. The parties hereby consent to the personal jurisdiction of such courts within such County, and the parties hereby waive any objections to venue in such courts within that County.
20. Attorneys’ Fees. If any action, suit or other proceeding is instituted concerning or arising out of this Agreement, the prevailing party shall be entitled to recover all of such party’s reasonable costs and attorneys’ fees incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions therefrom.
21. Notices. Notices shall be in writing to the party’s respective address set forth elsewhere in this Agreement. Notices shall be given by hand delivery, by nationally-recognized overnight courier (e.g., FedEx), or by U.S. Postal Service (certified or registered mail, return receipt requested).
22. No Waiver. Waiver of breach of this Agreement shall not constitute waiver of another breach. Failing to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
23. Relationship of the Parties. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.
24. Assurances. Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to the other party under this Agreement are true, correct and accurate as of the Effective Date to the best of their knowledge.
25. Equitable Remedies. The parties acknowledge that in certain cases damages at law may be an inadequate remedy. In addition to all other remedies that may be available at law or equity, each party shall have the right of specific performance, injunction or other equitable remedy in the event of a breach or threatened breach of this Agreement.
26. Counterparts; Fax. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. Executed copies of this Agreement may be delivered by fax or other electronic transmission.
The undersigned parties have entered into this Agreement as of the Effective Date.