Website Services Agreement
This Website Services Agreement ("Agreement") is entered into between You (“You”, “Your”, or “Client”) and MyNetWire, LLC and its affiliates ("Developer") for the purpose of website development and hosting (“Services”). By registering, purchasing or using Developer's Services, Client agrees to be bound by this Agreement and represents and warrants that You have the authority to accept the terms of this Agreement. If You do not accept the terms of this Agreement, do not register, purchase, or use Developer's Services. The relationship between Client and Developer will not at any point of time qualify as Work to/for Hire.
Section 1: Website Design and Hosting Services
WHEREAS, Client and Developer agree that Developer is being hired to perform Website Services at a comparable level of features and layout as made available in the online demo. Client and Developer further agree to the following terms:
(a) Client will provide content and documents to be included on the website.
(b) Client will have input on the look and structure of the website.
(c) Reasonable updates to website will be completed as requested by Client.
(d) Developer will provide hosting of website and troubleshooting as necessary to keep the website operating at a level of reliability, performance and professionalism consistent with commercially viable websites transacting business via the Internet.
(e) Client will be allocated shared server space to be used for the sole purpose of hosting relevant content and email related to Client’s official business.
Section 2: Copyrights and Trademarks
Client represents to Developer and unconditionally guarantees that any elements of text, graphics, photos, logos, designs, code, trademarks, or other artwork furnished to Developer for inclusion on the website are owned by Client or that Client has permission and a license from the rightful owner to use each of these elements and will hold harmless, protect, and defend Developer and its subcontractors, assigns, successors, attorneys, and representatives from any claim, legal action, or lawsuit arising from the use of such elements furnished by the Client.
Section 3: Acceptable Use
Client agrees to maintain a level of professionalism with regard to the look, content, and use of the website and Services. All content shall be directly related to the Client’s business, and shall not contain any defamatory material or be used for any illegal purpose within Client’s jurisdiction. In situations where functionality is enabled on the website which allows for visitors to openly post text on the website, Client shall monitor all posts on a regular basis and edit or delete posts which are deemed inappropriate, harassing, offensive, defamatory, illegal, or which does not respect right of privacy. Developer shall have full discretion to remove any material which, in its sole discretion, is inappropriate, and may in its sole discretion terminate Services without a refund of fees paid. Client shall not use the website or Developer’s Services to distribute unsolicited bulk emails or “spam” of any sort. Client will notify Developer immediately of any unauthorized use or breach of security occurring on its account.
Section 4: Limitation of Liability
EXCEPT AS REQUIRED BY LAW, DEVELOPER WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT AND THE SERVICES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, AND COMPUTER FAILURE OR MALFUCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. DEVELOPER IS NOT RESPONSIBLE FOR ANY ACTIVITIES OCCURING UNDER CLIENT’S ACCOUNT, INCLUDING BUT NOT LIMITED TO ANY LOSS RELATING TO ANY CONTENT CONTAINED ON THE WEBISTE OR LOSS RESULTING FROM ANY UNAUTHORIZED USE OF CLIENT’S PASSOWRD OR ACCOUNT. UNDER NO CIRCUMSTANCES SHALL DEVELOPER’S COLLECTIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF FIVE HUNDRED DOLLARS ($500) AND THE FEES PAID BY YOU UNDER THIS AGREEMENT. CLIENT AGREES AND UNDERSTANDS THAT ALL DOCUMENTS, MATERIAL, AND DATA STORED ON THE WEB SERVER MAY BE LOST DUE TO MECHANICAL ISSUES, SOFTWARE ISSUES, OR INTENTIONAL ACTIONS OF THIRD PARTIES, AND MAY REMAIN UNRECEOVERABLE THROUGH A NORMAL BACKUP PROCESS.
Section 5: Intellectual Property
Client agrees that Developer owns and holds all intellectual and other property rights and copyrights to the assembled work of the source code, programs, scripts, photos, layout, documents, graphics, and text produced by Developer (“Developer’s Intellectual Property”). Client agrees that title, ownership, or interest in Developer’s Intellectual Property is not being transferred to Client and remains the property of Developer. Client agrees to make no claim of interest in Developer’s Intellectual Property. Client, if account is in good standing, is authorized to use the website, Developer’s Intellectual Property, and Services only as provided in this Agreement.
Developer agrees that Client owns and holds all intellectual and other property rights and copyrights of photos, documents, graphics, data, and text produced by Client (“Client’s Intellectual Property”). Developer agrees that title, ownership, or interest in Client’s Intellectual Property is not being transferred to Developer and remains the property of Client. Developer agrees to make no claim of interest in Client’s Intellectual Property.
Section 6: Design Credit
Client agrees that Developer may place a byline, link, and graphic on the bottom of Client’s web pages establishing and recognizing Developer’s services. Client further agrees that Client's website may be included in Developer's portfolio as an example of Developer’s work and services. Developer reserves the right to use Client's communications as "testimonials" in print and online mediums as authorized and agreed to separately and expressly by Client. Developer agrees that in the event Developer uses Client’s communications as a testimonial, Client's full last name will not be disclosed in such testimonials.
Section 7: Payment of Fees
Client will pay Developer all fees, payable in U.S. Dollars, according to the prices and terms applicable to Your Services, including optional services as indicated on the invoice. Client shall owe a $20 fee for each returned check or credit card charge back received. Upon notice to Client, Developer reserves the right to change the amount or basis for determining any fees or charges to Client at any time.
Setup and design fees along with the first installment of recurring fees shall be due and payable prior to the initiation of the service or otherwise considered deliverable. Renewals and other recurring fees shall be due and payable on the renewal date. If You are past due on any payments, Developer reserves the right to suspend Services provided to Client until payment has been received in full which includes any processing or late fees. If payments are more than thirty (30) days past due for any reason, Services may be terminated and deleted from Developer's servers by Developer with or without notice, and all the information contained within deleted permanently. Developer accepts no liability for Services, information, or content that is suspended or deleted due to the non-payment of fees.
In the event of default due to Client’s non-payment of fees, Developer in his discretion shall also have other remedies available at law or equity. If Developer incurs any costs or expenses in connection with an event of default for non-payment, including enforcing any term or condition of this Agreement, Developer shall be entitled to collect all reasonable costs of collection and/or enforcement, including but not limited to, attorneys’ fees and expenses.
Section 8: Money Back Guarantee
In the event Client is not satisfied with Services within the first thirty (30) days following signup, all fees paid minus a $15 domain registration fee per domain, if applicable, will be refunded to Client upon written notice requesting cancellation and a refund. Upon receipt of the cancellation request, no further services will be provided to Client.
Section 9: Cancellation of Services
Developer may in its discretion cancel Services being provided to Client with thirty (30) days notice, excluding cases of a violation of this Agreement, which may result in immediate termination or cases of non-payment as indicated in the Payment of Fees Section 7. Client may cancel website services at any time. Upon cancellation of website services either by Developer or by Client, Client will not be entitled to a refund of fees paid. Any outstanding fees for services provided by Developer to Client remain due and payable. Upon the effective date of Client's cancellation request, Client's website, data, content, and documents will be deleted and unrecoverable.
Agreement shall remain in effect following cancellation of Services by either Developer or by Client.
Section 10: Force Majeure
Developer will make every effort to keep Client’s website operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold Developer liable for any of the consequences of such interruptions.
Section 11: Nondisclosure
Developer, its owners, employees, successors, assigns, agents, and subcontractors agree that, except as directed by Client or government agency, it will not at any time during or after the term of this Agreement disclose any Confidential Information to any person. Likewise, Client agrees that it will not convey any Confidential Information obtained about or from Developer to another party. For purposes of this Agreement, the term “Confidential Information” includes: all information, data, reports, text, plans, prices, source code, software, applications, images, and other materials, in whatever form maintained and/or communicated, that has been or may hereafter be provided or shown between Client and Developer.
Section 12: Indemnification
Regardless of whether or not separate, several, joint, or concurrent liability may be asserted against or imposed upon Developer and Client, Client agrees that it shall defend, indemnify, and hold Developer harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees associated with the development, access, and hosting of Client's website arising from client’s actions or omissions. This includes liabilities asserted against Developer and its subcontractors, agents, attorneys, assigns, successors, clients, servants, members, owners, and employees that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, including its sponsors, agents, successors, clients, attorneys, board members, employees, or assigns.
Client also agrees to defend, indemnify, and hold harmless Developer against liabilities arising out of any injury to person or property caused by any products or services sold, endorsed, sponsored, or otherwise distributed over Client's website. This includes, but is not limited to, infringing on the proprietary rights of a third party, copyright infringement, trademark, right of publicity, intellectual property, product liability, and delivering any defective product or misinformation, which is detrimental to another person, organization, entity, or business.
Section 13: Warranty of Authorization
Client/You represent and warrant that execution of this Agreement has been duly authorized by appropriate action taken in accordance with the parties' respective articles of incorporation, by-laws, and all other governing law. The parties further represent and warrant that the representatives executing this Agreement on their behalf have all necessary power and authority to execute this Agreement on their behalf.
Section 14: Arbitration
Any disputes in excess of $500 arising out of this Agreement shall be submitted to binding arbitration before a mutually agreed upon Arbitrator suitor in the State of Indiana in the United States of America pursuant to the rules of the American Arbitration Association. The Arbitrator's decision shall be final and binding, and any judgment made by an Arbitrator may be entered in any court having jurisdiction thereof.
Section 15: Severability
Registrant agrees that the terms of this Agreement are severable. If any term or provision is declared invalid by a court of law, the remaining terms, sections, and provisions shall continue to be binding and in effect.
Section 16: Sole Agreement
The terms and provisions contained in this Agreement constitute the sole and entire agreement between Developer and the Client. There are no other covenants, agreements, promises, terms, or provisions, written or oral, except as set forth herein. This Agreement shall be binding upon the parties hereto, their respective heirs, administrators, personal representatives, executors, successors, assigns, members, and employees. Any additional work not specified in this contract must be authorized by a written change order. Developer may modify this Agreement and the available website services from time to time. You agree to be bound by any changes Developer may reasonably make to this Agreement when such changes are made.
Section 17: Notice
Any notices to be given hereunder shall be deemed sufficiently given when (a) actually served on the person to be notified or (b) by electronic mail with read receipt.
Section 18: Governing Law
This Agreement is entered into and shall be governed by and construed in accordance with the laws of the State of Indiana located in the United States of America.
Section 19: Modification; Waiver
No oral modifications shall be effective, and no delay or failure on the part of either party to insist on compliance with any provision hereof shall constitute a waiver of such party's right to enforce such provision.
Section 20: Integration
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of such taken together shall constitute only one agreement, superseding all prior understandings, oral or written; and it is expressly understood and agreed that this Agreement does not obligate either party to enter into any other or further agreements.