Website Terms Of Agreement - Southcoast Marketing Group

Terms Of Service/Agreement Southcoast Marketing Group Website, & Hosting Agreement This Agreement (“Agreement”) is entered into as of this date first listed below by and between Southcoast Marketing Group, with offices located at 9 Tyler Avenue Suite B, East Wareham, MA 02538 (“SCMG” or “Company”) and the Client (“Client”) This Agreement is effective as of the later of the dates beneath the parties’ signatures below (the “Effective Date”). SCMG provides Services including website design and arranges third party hosting for such content. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, Client and SCMG agree as follows: <ol> <li>DEFINITIONS</li> </ol> “Client” means a customer of SCMG. “Company” means Southcoast Marketing Group (SCMG). “Client Data” means all electronic data or information submitted by Client to SCMG. “Hosting” means the provision of website hosting services by a vendor designated by Company. “Invoice” means the monthly statement to Client of fees due. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. “Privacy Policy” means the statement of privacy provided to Clients by Company. “Order Forms” means the documents for placing orders hereunder that are entered into between Client for services offered to them by Company, including addenda and supplements thereto. The Order Form shall only be complete if it includes the Terms of Service Agreement provided by Company to Client. By entering into an Order Form hereunder, --Client agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference. “Client” means the party identified below. “Services” means website design and service provided by Company to Client as offered by Client. Such services may only be offered through the use of the Order Form. “Terms of Service Agreement” means the terms of service agreement provided to Client as a material condition of this Agreement, hereby incorporated by reference, and the Terms of Service Agreement required for each Client. “Website” is an individual website or substantial revision to a Website sold to a Client by Company. <ol start="2"> <li> SERVICES</li> </ol> 2.1 Provision of Services. Company shall make the Services available to Client pursuant to this Agreement and the applicable Order Forms during each subscription term. Company shall provide the following: A website consisting of …No more than 15 pages, Ongoing maintenance, Hosting and technical support. Hosting for the website at the vendor designated by Company. The terms and conditions of the Hosting are hereby incorporated by reference into this Agreement. The parties hereby acknowledge that Company cannot be responsible for the uptime or provision of services by the Hosting Company. Except as provided in the terms of Payment, below, Clients are not bound to use the Hosting services. Company shall affect the transfer of the Website to another Hosting company at the request of any Client or of the Company. The transfer of Hosting shall be the sole and exclusive remedy against Company for any breach by the Hosting services of its obligations to Client. 2.2 Terms of Service Agreement. The Terms of Service Agreement are hereby incorporated by reference into this Agreement. The Terms of Service Agreement are required to be accepted by any Client of Company as a precondition of Company providing its Services. For each Client Website, the Client must agree to be bound by the terms and conditions of the Order Form as provided to that Client by Company in writing and evidenced by an authorized signature of Client or an electronic equivalent by way of a designated agreement using a dialogue box stating that the Client agrees to the terms and conditions of the Order Form (sometimes referred to as a “clickwrap agreement”). 2.3 Company Protection of Client Data. Company shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Company shall not (a) modify Client Data, (b) disclose Client Data except as compelled by law or regulation or as expressly permitted in writing by Client, or (c) access Client Data except to provide the Services and prevent or address service or technical problems, or at Clients request in connection with customer support matters. 2.4 Third Party Beneficiary. The Terms of Service Agreement specifies that Client agrees to Indemnify Company and its subsidiaries, affiliates officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content submitted, posted, transmitted, modified or otherwise made available through the Services, use of the Services or violation of the Terms of Service Agreement. <ol start="3"> <li> FEES AND PAYMENT</li> </ol> 3.1 Fees. Client shall pay all fees specified in all Invoices hereunder. Except as otherwise specified herein or in Invoice, Client shall be billed a charge for each Website designed and a monthly fee for the aggregate number of Websites hosted. 3.2 Hosting. Hosting fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for Website Hosting added in the middle of a monthly period will be charged for that full monthly period. Hosting services require a three month minimum service. 3.3 Invoicing and Payment. Fees will be invoiced in advance. Unless otherwise stated in the Invoice fees are due NET 7 days from the invoice date. Client is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information. 3.4 Overdue Charges. If any amounts invoiced hereunder are not received by Company by the due date, then at Company’s discretion, (a) such charges may accrue late interest at the rate of 12.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Company may condition future subscription renewals and Invoicing on payment terms shorter than those specified above. 3.5 Suspension of Service. If any charge owing by Client is 30 days or more overdue, Company may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full, provided Company has given Client 10 or more days’ prior notice that its account is overdue in accordance with the “Notices” section below. If Account becomes suspended a $500 reconnect fee will be assessed and must be paid in full along with past due amounts, and late fees before service is restored. 3.6 Payment Disputes. Company shall not exercise its rights under the “Overdue Charges” or “Suspension of Service” section above if Client is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. 3.7 Taxes. Unless otherwise stated, Company’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Client is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Client, unless Client provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on its income, property and employees. <ol start="4"> <li> WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS</li> </ol> 4.1 Warranties and Representations of the Parties. Each party to this Agreement hereby represents and warrants that it has the right and authority to enter into this Agreement and that it is not subject to any contract, agreement, judgment, statute, regulation or disability which might interfere with its full performance all of the covenants and conditions hereunder. (i) Each party agrees to indemnify the other and to hold the other harmless from and against any and all claims, action, cause of action, liabilities, damages, judgments, decrees, losses, costs and expenses, including reasonable attorneys’ fees, arising out of any breach or alleged breach of any representations, warranties or agreements made by it hereunder. (ii) Client represents and warrants that at all times throughout the term of this Agreement, nothing in the content provided to Company by Client shall violate the copyright of any other party, shall violate the Terms of Service Agreement, nor shall it be defamatory or invade the privacy of any person. Client agrees to indemnify and hold Company harmless from any and all damages, causes of action, cost and expenses, including reasonable attorneys’ fees, incurred by reason of Client’s alleged breach of this paragraph. 4.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. <ol start="5"> <li> LIMITATION OF LIABILITY</li> </ol> 5.1 Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE. 5.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. 5.3 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Return of Client Data,” “Surviving Provisions” and “General Provisions” shall survive any termination or expiration of this Agreement. <ol start="6"> <li> RESOLUTION OF DISPUTES.</li> </ol> 6.1 ANY AND ALL DISPUTES HEREUNDER SHALL BE RESOLVED BY ARBITRATION IN ACCORDANCE WITH THE AMERICAN ARBITRATION ASSOCIATION OF AMERICA (“AAA”) UNDER THE RULES THEN OBTAINING. ANY PARTY HERETO ELECTING TO COMMENCE AN ACTION SHALL GIVE WRITTEN NOTICE TO THE OTHER PARTY HERETO OF SUCH ELECTION. THE LOCATION FOR SUCH ARBITRATION SHALL BE WAREHAM, MASSACHUSETTS, SUBJECT TO THE CONVENIENCE OF THE PARTIES. THE AWARD OF SUCH ARBITRATOR MAY BE CONFIRMED OR ENFORCED IN ANY COURT OF COMPETENT JURISDICTION. THE COSTS AND EXPENSES OF THE ARBITRATOR, INCLUDING THE ATTORNEYS’ FEES AND COSTS OF EACH OF THE PARTIES, MAY BE APPORTIONED BETWEEN THE PARTIES BY SUCH ARBITRATOR. <ol start="7"> <li> GENERAL PROVISIONS</li> </ol> 7.1 Account Records. Company shall at all times, maintain accurate and complete records concerning each Account and shall make such records available to Client upon reasonable request. Such records shall be treated as confidential and shall not be provided to any third party other than Client’s attorney or accountant. 7.2 Term and Renewal. The term of this Agreement shall be one (1) year commencing as of the date hereof, and provided neither party is in material breach of or in default under any term or provision hereof, this Agreement shall automatically renew for additional one (1) year periods thereafter, unless either party gives written notice of its election to terminate this Agreement not less than thirty (30) days prior to the expiration of the term. 7.3 No Partnership or Joint Venture. Nothing in this Agreement shall be construed as creating a partnership, joint venture or employment relationship between the parties hereto, and each party is solely and exclusively responsible for its own debts and obligations. 7.4 Further Documents. Each of the parties agrees to execute, acknowledge and deliver any and all further documents which may be required to carry into effect this Agreement and its respective obligations hereunder, all of which further documents shall be in accordance with and consistent with the terms of this Agreement. <ol start="7"> <li> 5 Headings. Provision headings are solely for convenience and reference, and have no legal significance.</li> </ol> 7.6 Notices. All notices, statements or other documents which either party shall desire to give to the other hereunder shall be in writing and shall be deemed given as when delivered personally or by telecopier, or 48 hours after deposit in the U.S. mail, postage prepaid and addressed to the recipient party at the address set forth in the opening paragraph of this Agreement, or at such address as either party hereto may designate from time to time in accordance with this Paragraph. 7.8 Amendments. This Agreement may be modified or amended only in a writing signed by both parties. 7.9 Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 7.10 Surviving Provisions. The sections titled “Terms of Service Agreement,” “Client Responsibilities,” “Fees and Payment,” “Third Party Beneficiary,” “Proprietary Rights,” “Confidentiality,” “Warranties, Exclusive Remedies and Disclaimers,” “Limitation of Liability,” “Resolution of Disputes,” “Surviving Provisions” and “General Provisions” shall survive any termination or expiration of this Agreement. 7.11 Entire Agreement. This Agreement along with the agreements incorporated by reference contain the full and complete understanding between the parties hereto with reference to the within subject matter, supersedes all prior agreements and understandings, whether written or oral, pertaining thereto, and cannot be modified except by a written instrument signed by both of the parties hereto. Each of the parties acknowledges that no representation or promise not expressly contained in this Agreement has been made by the other or its agents or representatives. 7.12 Export Compliance. The Services, other Company technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each of Company and Client represents that it is not named on any U.S. government denied-party list. Client shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation. 7.13 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. 7.14 Counterparts. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument