THIS CLIENT AGREEMENT (THE
“AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH EBIZ4IDIOTS, INC.
D/B/A WEBSITEPIPELINE™ ("WEBSITEPIPELINE") WILL ASSIST YOU IN THE CREATION,
OPERATION AND HOSTING OF YOUR WEBSITE(S). PLEASE READ THE TERMS CAREFULLY. BY
SIGNING OR ACCEPTING ANY WEBSITEPIPELINE AGREEMENT, ORDER FORM OR OTHERWISE THAT
IS CONTINGENT UPON THE ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, YOU WILL
INDICATE YOUR AGREEMENT WITH THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON
BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUR ACCEPTANCE REPRESENTS THAT YOU
HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE "YOU" OR
"YOUR" WILL REFER TO YOUR ENTITY. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF
YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, THEN WEBSITEPIPELINE IS
UNWILLING ENTER INTO THIS AGREEMENT AND TO ASSIST YOU IN THE CREATION, OPERATION
AND HOSTING OF YOUR WEBSITE(S).
THIS AGREEMENT CONTAINS AN
ARBITRATION CLAUSE.
Effective Date: May 23, 2006
1.
ACCEPTANCE OF
AGREEMENT AND AMENDMENT PROCEDURES
This Agreement will become effective upon the execution hereof and the
final acceptance by websitepipeline of any Order form (defined below). Final
acceptance by websitepipeline may be conditional upon You completing specified
requirements including, but not limited to, making initial payments to commence
work, successfully passing a credit check and/or accepting the scope of Services
(defined below) to be provided. websitepipeline reserves the right to reject
any order form, agreement or otherwise for any reason prior to its final
acceptance by websitepipeline.
websitepipeline reserves the right to modify this Agreement at any
time, and without prior notice, by posting an amended Agreement at
http://www.websitepipeline.com/legal. You are encouraged to print any amended
agreement and to retain it with Your records.
A listing of material changes to this Agreement and their effective
dates is provided at http://www.websitepipeline.com/legal in the section labeled
“Notice of Material Change To Client Agreement”.
Your continued use of any services or offerings provided by
websitepipeline indicates Your acceptance of the amended Agreement. You should
refer back to this Agreement through the above links periodically for amendments
and their effective dates.
This Agreement consists of the following: (i) this Client Agreement,
(ii) any Order executed by You and accepted by websitepipeline, (iii) any
Addendum which is attached to this Client Agreement, and (iv) any amendments to
this Client Agreement which are made in accordance with the immediately
preceding paragraph.
Your use of the websitepipeline website and its services and software
is subject to the Terms of Use and Privacy Policy linked on the websitepipeline
home page (http://www.websitepipeline.com/).
2.
DESCRIPTION OF
SERVICES
websitepipeline provides
website software, consulting services and hosting services (collectively, the
“Services”) which include;
a)
developing and
utilizing software and software documentation for the purpose of designing,
deploying, operating and maintaining websites (specifically, the “Software”),
b)
providing web
consulting services that include the development and design of websites, website
features and website functionality, training, support and other services
utilized in the development, deployment, operation, maintenance and support of
websites (specifically, the “Website Services”) and
c)
providing web
hosting services that include the hosting of websites by websitepipeline
(specifically, the “Hosting Services”).
Unless explicitly stated
otherwise, any new features, options, resources or offerings that augments or
enhances the current Services shall be subject to the terms of this Agreement
The exact type, features,
options, scope, duration, price and/or terms of the Services being provided to
You will be specified in an order form, order scope or the like provided by
websitepipeline and accepted by You and websitepipeline (the “Order”). ALL
SERVICES PROVIDED BY WEBSITEPIPELINE REQUIRE A VALID ORDER AND, NOTWITHSTANDING
THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE BOUND BY ALL SUCH TERMS AND
CONDITIONS SPECIFIED IN THE ORDER.
In order to use the Services,
You must obtain access to the World Wide Web, either directly or through devices
that access web-based content, and pay any fees associated with such access.
You are responsible for obtaining and maintaining all telephone, computer
hardware and other equipment needed for Your access to and use of the Services,
and for all related fees. You are responsible for obtaining, maintaining and
paying all related fees for a valid domain name and, when You are using the
website for conducting transactions, You are responsible for obtaining,
maintaining and paying all related fees for a websitepipeline approved gateway
and merchant account for handling such transactions.
Services Eligibility. Services are not available to minors under the age of 18
years of age.
3.
INTELLECTUAL
PROPERTY AND OWNERSHIP
Intellectual Property. All computer programs and other technology utilized by
websitepipeline to provide the Services are owned by websitepipeline or its
licensors, and You do not acquire any ownership interest therein. You shall not
(i) tamper with, copy, merge, decompile, or disassemble any such computer
programs and other technology (ii) nor shall You disclose, share, or transmit
any identification or password code provided by websitepipeline with any third
party without the express written consent of websitepipeline. Any rights
granted to You to use such computer programs and other technology is solely for
the purpose described herein and for no other purpose or use.
websitepipeline shall be
deemed the sole author and owner of all Common Gateway Interface, Hyper Text
Markup Language code, Java script, Perl script, Visual Basic script, ASP script
and any other code or programming acquired, created, developed or learned by
websitepipeline during the course of providing the Services, whether at the
instance of websitepipeline or as customization or other copyrightable
authorship requested by You. You hereby assign to websitepipeline any and all
rights, title and ownership interests which You may have in any works of
authorship developed in conjunction with websitepipeline during the course of
providing the Services and will not attempt to prohibit or enjoin
websitepipeline at any time from utilizing any skills, knowledge, technical
expertise, product or feature enhancements or any other information acquired,
learned or developed during the course of providing the Services.
Proprietary Marks. websitepipeline, and other websitepipeline product and service names,
and all of their related logos, are each proprietary trademarks of
websitepipeline (the "websitepipeline Marks"). Without websitepipeline's
prior written permission, You agree not to display or use in any manner the
websitepipeline Marks, except as provided for elsewhere within this Agreement.
4.
DEFAMATION;
COMMUNICATIONS DECENCY ACT NOTICE
websitepipeline is a provider
of “interactive computer services” under the Communications Decency Act, 47
U.S.C. Section 230, and as such, websitepipeline’s liability for defamation and
other claims arising out of any postings by third parties to any websitepipeline
hosted, operated or maintained website is limited as described therein.
websitepipeline is not responsible for content or any other information posted
to such websites by third parties. websitepipeline neither warrants the
accuracy of such postings nor, nor assumes any legal obligation or liability in
connection with such postings, including any responsibility or liability for
investigating or verifying the accuracy of any content or any other information
contained in such postings.
5.
CONTENT OF WEBSITE
You shall be considered the
sole and exclusive author and owner of Your website domain name, Your uniform
resource locator, if any, and any graphics, text or data provided to
websitepipeline or uploaded by You for use in the website (the “Content”), and
websitepipeline shall acquire no rights therein.
You acknowledge that
websitepipeline is not an editor or publisher of Your Content and that
websitepipeline has no responsibility for screening, policing, editing, or
otherwise monitoring Your Content. Notwithstanding the forgoing,
websitepipeline reserves the right at websitepipeline's sole discretion to
refuse to use or to remove any of Your Content (i) for which You are not able to
verify ownership or Your rights of use to the satisfaction of websitepipeline,
or (ii) which, in the judgment of websitepipeline, is inappropriate or suspect
under applicable laws.
You are solely responsible
for determining Your site’s compliance with laws and regulations, including
without limitation, any applicable sales, use or other taxes, and for
determining the type and scope of legal notices to be included in Your website,
including without limitation, disclaimers of warranty and liability, proprietary
rights notices, limitations of liability, terms of use, and privacy policy, and
advertising claims.
You
agree that websitepipeline shall be entitled to the maximum protection allowed
by law, including, without limitation, 17 U.S.C. § 512.
6.
PAYMENT
Charges - General. You shall pay to websitepipeline all fees and other specified payments
(the “Charges”) for Website Services and Hosting Services in accordance with
this Agreement and Your Order. All payments for Charges shall be made in U.S.
Dollars. In all cases, payments for Charges are due on the dates specified in
Your Order. All Website Services and Hosting Services are provided by
websitepipeline on a non-refundable basis. You shall be liable for all amounts
payable to websitepipeline hereunder, and all such payment obligations shall
survive the expiration or termination hereof. In addition to any other remedies
that may be available to websitepipeline under this Agreement (including without
limitation, in connection with the termination of this Agreement) or applicable
law, Charges that are not paid in full by the dates specified on Your Order will
be subject to the following:
a)
Website Services Charges. websitepipeline
will immediately cease all WEBSITE ServiceS and other related work on Your
website if any Service Charges are not paid in full by the dates specified on
Your Order. If Website Services Charges are paid in full within fifteen
(15) days after the payment due date, websitepipeline will re-commence Website
Services and all future Website Services Charges shall be due per the original
terms and dates of Your Order. Website Services Charges that are not paid in
full within fifteen (15) days after the payment due date shall be subject to an
additional late fee equal to the greater of $200.00 or five (5) percent of the
past-due Website Services Charge. Website Services Charges that are not paid in
full within thirty (30) days after the payment due-date shall be in default
(“Payment Default”) and subject to the Payment Default terms stated in this
Agreement.
b)
Hosting Services Charges. Hosting Services Charges that are not paid in full within
fifteen (15) calendar days after the payment due date shall be subject to an
additional late fee equal to the greater of $15.00 or ten (10) percent of the
past-due Hosting Services Charge. Hosting Services Charges that are not paid in
full within thirty (30) days after the payment due-date shall be in default
(“Payment Default”) and subject to the Payment Default terms stated in this
Agreement. All Hosting Services that are
in Payment Default MAY be immediately terminated by websitepipeline and Your
website MAY be removed from websitepipeline’s servers.
Payment Default. For Charges in Payment Default, websitepipeline reserves the right to
use self-help to the greatest extent permitted by law, including, but not
limited to, electronic remedies to obtain such Charges and any related fees.
You also shall pay to websitepipeline all expenses incurred by websitepipeline
in exercising any of its rights under this Agreement or applicable law with
respect to the collection of a Payment Default, including without limitation,
reasonable attorneys' fees and the fees of any collection agency retained by
websitepipeline.
Accelerated Delivery Premiums.
websitepipeline may offer, as
an option and for a fee, to expedite, rush or otherwise accelerate the delivery
of certain of its Services in Your Order (the “Accelerated Delivery Premiums”).
All Accelerated Delivery Premiums will be indicated on Your Order and will
provide (i) an estimate as to the cumulative number of days until completion for
the accelerated delivery of Services (“Accelerated Delivery Days”) and (ii) an
estimate as to the cumulative number of days until completion for the normal
delivery of Services (“Normal Delivery Days”). If websitepipeline completes the
Services within the Accelerated Delivery Days, You shall be charged and are
responsible for payment in full of the Accelerated Delivery Premiums. If
websitepipeline does not complete the Services within the Accelerated Delivery
Days but does complete the Services within the Normal Delivery Days, You shall
be charged and are responsible for payment of a prorated amount of the
Accelerated Delivery Premiums equal in percent to the number of days in advance
of the Normal Delivery Days divided by the number of days difference between the
Normal Delivery Days and the Accelerated Delivery Days. If websitepipeline does
not complete the Services within the Normal Delivery Days, You shall not be
charged and are not responsible for any Accelerated Delivery Premiums.
Accelerated Delivery Days and
Normal Delivery Days only include those days
outlined in Your Order that are directly under the control of
websitepipeline and exclude, without exception, any days under Your control
including, but not limited to, the creation of Content by You, Your approval of
work completed and other activities based upon Your involvement.
You acknowledge and agree that neither Accelerated Delivery Days nor Normal
Delivery Days constitute a performance guarantee, or any other type of warranty
or guarantee, and the failure of websitepipeline to complete Services within
either Accelerated Delivery Days or Normal Delivery days does not constitute a
breach of the Agreement and that in such an event You will continue to be bound
in full by the terms and conditions of the Agreement.
Pass Through Items and Other Expenses.
websitepipeline shall have the right at any time during any term of this
Agreement to pass through and invoice to You any new or increased fees,
assessments, taxes or other charges imposed on or required to be collected by
websitepipeline by any governmental agency or any new or increased charges by
any carrier that affect websitepipeline's costs in providing the Services to
You. You also will be responsible for paying any sales, license and use taxes,
fees, or assessments levied by any local, state or federal government or
governmental agency with respect to the provision of Services under this
Agreement. You will pay and be solely responsible for all taxes, fees and
charges levied directly upon You.
Changes
in Charges.
Except as provided elsewhere in the Agreement, the prices and fees charged by
websitepipeline for its Services are only applicable for the Services or dates
of Services specified in Your Order. websitepipeline will have the right, upon
notice required by applicable laws, to change the amount or basis for
determining any fee or charge or institute any new fees or charges for any new,
incremental or additional Services or Orders. Upon the Automatic Renewal of
Hosting Services, as provided in Section 10, websitepipeline will have the
right, upon thirty (30) days notice and subject to applicable laws, to change
the amount or basis for determining any fee or charge or institute any new fees
or charges for Hosting Services.
7.
SOFTWARE
Software.
websitepipeline grants You a personal, non-transferable, non-exclusive and
revocable license to use websitepipeline’s Software for the sole purpose of
operating and maintaining Your website as provided by websitepipeline’s Service
and Hosting Service, provided that You do not (and do not allow any third party
to) copy, modify, create a derivative work of, reverse engineer, reverse
assemble or otherwise attempt to discover any source code, sell, assign,
sublicense, grant a security interest in or otherwise transfer any right in the
Software or any portion of the Software. You agree not to modify the Software
in any manner or form, or to use modified versions of the Software, including
(without limitation) for the purpose of obtaining unauthorized access to the
Software. You agree not to access the Software by any means other than through
the interface that is provided or authorized by websitepipeline for use in
accessing the Software. You may not use web pages or parts of web pages
generated by means of the Software, other than Content that originates from and
is proprietary to You, on any server other than the servers controlled by
websitepipeline without websitepipeline's express written consent.
websitepipeline reserves the right at any time to revise and modify the
Software, release subsequent versions thereof and to alter features,
specifications, capabilities, functions, and other characteristics of the
Software, without notice to You. If any revision or modification to the
Software materially changes Your ability to conduct business or to use Your
website, Your sole remedy is to cancel Your Services.
Third Party Software. With respect to any elective, additional software that
may be made available by websitepipeline in connection with the Software, if You
elect to download or access such additional software, You acknowledge that You
may have to agree to additional terms and conditions before You may use such
software.
8.
WEBSITE
SERVICES
Website Services. websitepipeline shall provide to You the Website Services defined in
Your Order in accordance with the terms and conditions hereof and the applicable
Order. In the event of any inconsistency or conflict between this Agreement and
any Order, the Agreement shall control.
Website Services Contact. You
shall designate one individual as Your principal contact for communicating with
websitepipeline regarding the Website Services. You agree that any decisions
made by the Contact with regard to the Website Services provided hereunder are
binding upon You. You may change Your principal contact by written notice to
websitepipeline.
Cooperation.
You acknowledge that Website Services may be dependant on You providing certain
data, information, or assistance (the "Cooperation"), and (ii) that such
Cooperation may be essential to the performance of Website Services by
websitepipeline. The parties agree that any delay or failure by websitepipeline
to provide Website Services hereunder which is caused by Your failure to provide
timely Cooperation reasonably requested by websitepipeline shall not be deemed
to be a breach of websitepipeline's performance obligations under this
Agreement. Furthermore, the parties agree that if You fail to provide timely
Cooperation within 180 days of written request for such Cooperation,
websitepipeline shall have the right to provide You written notice of such
failure and, within thirty (30) days of notice of such failure, You shall either
provide all requested Cooperation or, in the event You do not provide all
requested Cooperation, You shall be deemed to have elected Termination by
Convenience, as provided in Section 11, and subject to Termination by Convenience terms stated in
this Agreement.
Progress Reports.
websitepipeline shall provide
to You reports as You may reasonably request in writing from time to time
regarding the progress of the work required by the Order, any anticipated
problems (resolved or unresolved), and any indication of delay in estimates.
Changes.
Any change requested by You in the scope of Website Services specified in an
Order must be agreed to by websitepipeline in writing. Such changes may require
modification of fees charged and/or delivery estimates.
Order Completion. Within five (5) days following receipt of notice from websitepipeline
of completion of Your Order, You shall review and test the website and advise
websitepipeline of Your acceptance of the website or provide websitepipeline in
a written form one (1) all encompassing and specific list of any modifications
required to the website to meet the terms of Your Order. You shall be deemed to
have accepted the website and it shall be deemed to be complete (the “Order
Completion”) (i) upon receipt by websitepipeline of written notification by You
of acceptance, or (ii) the failure of You to provide websitepipeline in a
written form one (1) all encompassing and specific list of any modifications
required to the website to meet the terms of Your Order within five (5) days
receipt of notice of completion. Upon acceptance or the successful completion
of the modifications requested and agreed to by websitepipeline, the website
shall be deemed to be complete.
Website Services Delivery Guarantee. websitepipeline may provide You with estimates as
part of Your Order reflecting the number of cumulative days of work
websitepipeline expects it will require to deliver its Website Services (the
“Website Services Delivery Estimate”).
The Website Services Delivery Estimate is EXCLUSIVE of days requiring effort,
work, response, or input by You OR ANY OTHER THIRD PARTIES. If
websitepipeline exceeds the Website Services Delivery Estimate by 30 days or
more, websitepipeline will provide you with Hosting Services at no charge for a
period of time equal to the number of days past the Website Services Delivery
Estimate until actual Order Completion. You acknowledge and agree that (i) the
no-charge Hosting Services will be applied immediately upon Order Completion,
(ii) the term of Your Hosting Services detailed in Your Order will begin after
the no-charge Hosting Services and will continue for the term length detailed in
Your Order and (iii) THE NO-CHARGE HOSTING SERVICES IS YOUR SOLE AND EXCLUSIVE
REMEDY IF WEBSITEPIPELINE DOES NOT DELIVER ITS WEBSITE SERVICES WITHIN 30 DAYS
AFTER THE WEBSITE SERVICES DELIVERY ESTIMATE. Furthermore, you acknowledge and
agree that the failure of websitepipeline to complete Website Services within 30
days after the Website Services Delivery Estimate does not constitute a breach
of the Agreement, and if websitepipeline does not complete Website Services
within the 30-day period, You will continue to be bound in full by the terms and
conditions of the Agreement.
Third Party Web Browsing Software Interoperability.
Subject to the conditions herein, websitepipeline will develop the publicly
accessible pages of Your website to be interoperable, as determined by
websitepipeline at the time of Order Completion, with the then current version
of any third party web browsing software that (i) has been released in the 5
years prior to Order Completion and (ii), as determined by websitepipeline, has
greater than a one percent market penetration in the United States.
Interoperability will be determined solely by websitepipeline using its
equipment, hardware and software and shall not apply to tools or features in the
Software used for the management, operation or maintenance of the website. You
acknowledge and agree that (i) third party web browsing software changes
frequently, (ii) that such changes may affect the future interoperability of
Your website with such software, (iii) and that, as an option and for a fee,
websitepipeline may provide additional Services to provide for future
interoperability of Your website with such software.
Search Engine Rankings. You acknowledge and agree that websitepipeline does not
offer, guarantee or otherwise provide for Your website’s inclusion in or ranking
with any third party search engines. Furthermore, You acknowledge and agree
that any inclusion in or ranking with any third party search engines previously
obtained or achieved by any website not designed and hosted by websitepipeline
may materially change if such websites are subsequently hosted by
websitepipeline.
Co-Branding.
All websites developed by
websitepipeline’s Service shall display, at websitepipeline’s option, a “powered
by websitepipeline™” line, logo or other graphic or phrase with a similar
meaning. websitepipeline may elect, at its sole discretion, to offer You the
option to remove such display for an additional fee.
You hereby grant to
websitepipeline the right to publicly perform and display any website developed
by websitepipeline for the purposes of marketing and advertising
websitepipeline’s products and services.
9.
HOSTING
SERVICES
Hosting Service. Subject to the terms and conditions of this Agreement,
websitepipeline shall attempt to provide the Hosting Service for twenty-four
(24) hours a day, seven (7) days a week throughout the term of this Agreement.
You acknowledge and agree that from time to time the Hosting Service may be
inaccessible or inoperable for any reason, including, without limitation: (i)
repair, maintenance or improvement procedures or repairs that websitepipeline
may undertake at its own discretion; (ii) equipment malfunctions; or (iii)
causes beyond the control of websitepipeline or that are not reasonably
foreseeable by websitepipeline , including, without limitation, interruption or
failure of telecommunication or digital transmission links, hostile network
attacks network congestion or other failures. You agree that websitepipeline has
no control of availability of the Hosting Service on a continuous or
uninterrupted basis and that You shall not be entitled to any discount, refund
or other credit for interruptions to the Hosting Service. You are responsible
for all expense associated with maintaining its internal network, software,
browsers and Internet connections sufficient to access the Hosting Service.
websitepipeline’s Hosting
Service is provided exclusively for websites developed with websitepipeline’s
Software and Service and shall be stored, provided and accessed on
websitepipeline’s equipment, hardware and/or Internet servers. You hereby grant
to websitepipeline all rights which may be necessary to provide the Hosting
Service including, but not limited to, accessing and monitoring use of the
website without notification, receiving and/or storing commands or data
transmitted to and/or from the website by Internet users, transmitting web page
data and storing, displaying and/or transmitting any other related or necessary
data or information.
Protection of Information. You are solely responsible for preventing
password-protected pages and information within the website from being accessed
by unauthorized persons and from being automatically indexed and linked to
search engine robots, spiders, or other similar means, and for any damage caused
by such unauthorized access.
Identifications and Passwords. websitepipeline shall provide You with a unique
identification and password for accessing Software that will provide You the
ability to view and modify Your generated identifications and passwords. You
are solely responsible for the security and proper use of such identifications
and passwords, and You agree to take all reasonable steps to ensure that such
identifications and passwords are kept confidential, secure, used properly, and
not disclosed to unauthorized persons. You shall immediately notify
websitepipeline in the event that You have any reason to believe that such
identifications and passwords have become known to unauthorized persons.
10.
TECHNICAL SUPPORT
Payment in full of all
Services fees entitles You to limited technical support (the “Technical
Support”) in the form of electronic means made available by websitepipeline.
websitepipeline reserves the right to alter, at its sole discretion, the extent
of any Technical Support provided for the Services, and the hours and means of
access by which it is available. websitepipeline may offer, as an option and
for a fee and subject to additional terms and conditions, additional support
options that may include phone support, business critical application support
and other types and levels of support.
11.
SYNDICATED WEBSITES
Syndicated Websites (Snap Websites).
websitepipeline may provide
You, as an option and for a fee, the ability to syndicate certain content and/or
functionality of Your website in order to make available to third parties (the
“Snap Websites”). All such Snap Websites are subject to the terms of this
agreement. If You elect to offer Your Snap Websites directly to third parties,
whether for payment or otherwise, You confirm and warrant that each third party
to whom You offer the Snap Website shall acknowledge and agree in writing (i) to
be subject to the terms of this Agreement, and (ii) to permit websitepipeline to
enforce the terms of this Agreement as a creditor third party beneficiary. You
accept full liability for such Snap Websites.
12.
SYNDICATED CONTENT
Syndicated Content.
You are solely responsible
for obtaining and properly licensing and paying any and all associated fees
for any content, data, information or other assets provided by a third party
(the “Syndicated Content”) and displayed, offered or otherwise used in
conjunction with Your website. You acknowledge and agree that websitepipeline
shall not be responsible for obtaining, providing or otherwise offering any such
Syndicated Content and that the termination of any such Syndicated Content by a
third party does not relieve You of any of the obligations of the Agreement.
13.
ELECTRONIC COMMERCE
Online Store. websitepipeline may provide You, as an option and for a fee, certain
features and functionality as a part of its Services which enable You (i) to
operate an online store to engage in the sale of goods and or services or other
types of commerce which may, in full or in part, be conducted electronically
through Your website, and/or (ii) to collect information including personally
identifiable information from Your website’s visitors (collectively, the
operation of an “Online Store”). If You elect to operate an Online Store, You
confirm and warrant that websitepipeline is not Your selling agent, distributor,
marketer or other affiliate, and that You are solely responsible for each and
all of the following: the operation and maintenance of Your Online Store and
products and all contents and materials appearing within Your Online Store or
related to Your products (including, without limitation, the accuracy and
appropriateness of advertising claims, content and materials appearing within
Your online store or related to Your products); the calculation and application
of product pricing, coupons, order totals, shipping and sales, use, or other
tax; and the purchase transactions with users through the Online Store,
including, without limitation, order receipt, product delivery, payment terms
and payment collection. You confirm and warrant that the content and materials
appearing within Your Online Store or related to Your products do not violate or
infringe upon the rights of any third party and are not libelous or otherwise
illegal. In no event shall websitepipeline be liable for any claims, damages or
losses arising out of or in connection with such transactions.
Credit Card Transactions. You acknowledge and agree that You are solely responsible
for processing credit card transactions through Your Online Store and between
You and any websitepipeline approved credit card processing company as You may
contract with. You shall be responsible for completing any applications or
paying any fees, charges or otherwise owed in conjunction with the processing of
such credit card transactions and shall assume full liability for meeting any
obligations, financial or otherwise, that arise out of engaging in such credit
card transactions. You further acknowledge and agree that websitepipeline shall
not be responsible in any way for the collection and disbursement of funds due
to You as a result of such credit card transactions.
Security of Visitor/Customer Information.
By operating the Online Store, You acknowledge and agree to
accept full responsibility and liability for the security of any customer credit
card numbers and any other related visitor or customer information, financial or
otherwise, including without limitation any and all personally identifiable
information which You may access, collect, be in receipt of, or archive through
the operation of Your Online Store and to treat all such information as
confidential to the extent required by law. websitepipeline will treat all such
information as confidential. Regarding data security, websitepipeline’s sole and
exclusive obligation and liability will be to undertake commercially reasonable
measures consistent with prevailing industry standards to safeguard all such
data and information.
Financial Calculations. You acknowledge and agree that You are solely responsible
for the accuracy of any financial calculations that may be performed in
conjunction with Your website including, but not limited to, the calculation of
pricing, compensation, commissions, payments due, payments owed or any other
financial calculations and any and all obligations, financial or otherwise, that
may arise out of such calculations. Furthermore, You shall verify the accuracy
of any such financial calculations prior to making or accepting any payments
based on such financial calculations and, in the event You determine an
inaccuracy in such a calculation, You are responsible for providing written
notification of such inaccuracy to websitepipeline and subsequently verifying
that any and all corrections made by websitepipeline are correct and accurate.
14.
GENERAL
Anti-Spam Policy. You acknowledge and agree to a zero-tolerance anti-spam policy. You
acknowledge and agree that You will not upload, post, email, transmit or
otherwise make available any unsolicited or unauthorized advertising,
promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes,"
or any other form of solicitation via email. This includes any email
originating from websitepipeline’s servers, or email originating from third
party servers that contains any variation of a domain name or hyperlink to a
domain name that is hosted on websitepipeline’s servers. Violation of this
policy is grounds for immediate termination of this Agreement and the permanent
cancellation of any websites, domain names, email accounts, and other
websitepipeline Services without refunds or financial concessions of any kind.
In addition, You shall be liable for any reasonable expenses, including the time
of websitepipeline employees, associated with removing websitepipeline’s servers
or Internet Protocol address from any “black lists” or other lists associated
with the use of such solicitations.
Downloading of Data or Files. You acknowledge and agree that websitepipeline cannot and
does not guarantee or warrant that files available for downloading through
websitepipeline’s servers and facilities will be free of infection, viruses,
worms, Trojan horses or other means or code that manifests contaminating or
destructive properties. You shall be solely responsible for implementing
sufficient procedures to satisfy Your particular requirements for virus
detection and remediation regarding downloadable files, accuracy of data input
and output, and for maintaining a means external to websitepipeline for the
reconstruction of any lost data. You also expressly recognize that the Internet
contains unedited materials, some of which may be unlawful, indecent, or
offensive to You, and access to such materials by You is done at Your sole risk.
15.
TERM AND TERMINATION
Term Of Agreement. The term of this Agreement shall commence immediately upon the
acceptance by websitepipeline of Your Order and shall continue for the duration
of the terms specified in Your Order. After the expiration or termination of
this Agreement, any existing Order then still in effect shall continue
unaffected and in full force and effect unless otherwise terminated as provided
herein or in such Order.
Automatic Renewal of Hosting Services.
After the expiration of the
original term as specified on Your Order, Hosting Services shall renew from
month-to-month at then prevailing prices, as provided in Section
5,
for such Hosting Services unless sooner terminated by either party pursuant to
the terms and conditions hereof.
Termination.
You agree that websitepipeline may terminate any websitepipeline Services
without prior notice, upon the occurrence of any one of the following: (i)
breaches or violations of this Agreement or other incorporated agreements or
guidelines, (ii) requests by law enforcement or other government agencies, and
(iii) a request by You pursuant to the terms herein. Termination of Services
includes (i) immediate termination of all Services and Services-related work,
(ii) removal of Your website from websitepipeline’s servers, (iii) deletion of
Your identification and password and all related information, files and content
associated with or inside Your website, and (iv) barring further use of
websitepipeline’s Services. Further, You acknowledge and agree that
websitepipeline shall not be liable to You or any third-party for any
termination of Your Services or access to Your website. websitepipeline will
archive all data stored in databases maintained by websitepipeline for a period
of thirty (30) days after termination. If You request a copy of such data and
pay to websitepipeline its then current fee for processing Your data during the
thirty (30) day period, websitepipeline will record such data on media and in a
format mutually agreed upon and transmit such data to You. If no request is
made for a copy of such data or if a mutual agreement is not reached within the
thirty (30) day period, websitepipeline may destroy all such data without
liability of obligation.
Automatic Termination.
Unless websitepipeline promptly after discovery of the
relevant facts notifies You to the contrary in writing, this Agreement and
Orders will terminate immediately without notice upon the institution of
insolvency, bankruptcy, or similar proceedings by or against websitepipeline,
any assignment or attempted assignment by websitepipeline for the benefit of
creditors, or any appointment, or application for such appointment, of a
receiver for websitepipeline.
Termination For Cause, All Services.
If either party fails to
comply with any of the material terms and conditions of this Agreement or the
Order, the other party may terminate this Agreement and/or any or all Orders
upon thirty (30) days written notice to the defaulting party specifying any such
breach, unless within the period of such notice, all breaches specified therein
shall have been remedied.
Termination For Convenience, Website Services.
Notwithstanding anything contained herein to the contrary, You may terminate
this Agreement and/or any or all Website Services’ Orders for convenience upon
sixty (60) days' written notice to websitepipeline. If You terminate Website
Services for Convenience, You are responsible for paying an early termination
fee in an amount equal to seventy-five (75) percent of the total remaining
payments outstanding at termination as specified in any and all such Website
Services Orders and any other fees or amounts You may owe.
Termination For Convenience, Hosting Services.
Notwithstanding anything
contained herein to the contrary, either party may terminate this Agreement
and/or any Hosting Services Order for convenience upon written notice to the
other party. If You terminate Hosting Services that are provided on a
month-by-month basis and are not subject to an Order specifying a term of longer
duration, You are responsible for any amounts due at the time of cancellation
and are not eligible for any refunds for unused Hosting Services. If You
terminate Hosting Services that are subject to an Order specifying a term of
longer than a one month duration, You are responsible for paying an early
termination fee in an amount equal to fifty (50) percent of the total remaining
payments outstanding at termination as specified in any and all such Hosting
Services Orders and any other fees or amounts You may owe.
Rights and Obligations on Termination.
Upon termination of this Agreement, websitepipeline and You shall have no
obligations to each other except as provided in this Agreement. Upon
termination of this Agreement, You shall (i) pay all amounts due and owing to
websitepipeline without deduction of any amount and (ii) immediately cease using
websitepipeline’s Services, including any websitepipeline Software. Any amounts
due and owing to websitepipeline not paid in full upon termination shall be
Payments in Default and subject to the terms of this Agreement.
Waiver.
You expressly waive any statutory or other legal protection in conflict with the
provisions of this Section.
16.
MUTUAL EXCHANGE OF CONFIDENTIAL INFORMATION
The parties anticipate that
each may disclose confidential information to the other. Accordingly, the
parties desire to establish in this Section terms governing the use and
protection of certain information one party ("Owner") may disclose to the other
party ("Recipient"). For purposes hereof, "Confidential Information" means the
terms and conditions hereof, and other information of an Owner (i) which relates
to the purpose and subject matter of the Services, including the business models
and plans of Owner and Owner's plans for the design of a website, including
without limitation, Non-Public Personal Information (defined below), or (ii)
which, although not related to the Services, is nevertheless disclosed
hereunder, and which, in any case, is disclosed by an Owner or an affiliate to
Recipient in document or other tangible form bearing an appropriate legend
indicating its confidential or proprietary nature, or which, if initially
disclosed orally or visually is identified as confidential at the time of
disclosure and a written summary hereof, also marked with such a legend, is
provided to Recipient within fifteen (15) days of the initial disclosure.
“Non-Public Personal Information” means any of the following information
accessible through or archived in connection with any website operated by or for
Owner: any identifier that permits physical or online contacting of a specific
individual person, including without limitation, any one or more of (i) first
and last name, (ii) home or physical address, (iii) email address, (iv)
telephone number, or (v) social security number. Recipient may use Confidential
Information of Owner only for the purposes of this Agreement and shall protect
such Confidential Information from disclosure to others, using the same degree
of care used to protect its own proprietary information of like importance, but
in any case using no less than a reasonable degree of care. Recipient may
disclose Confidential Information received hereunder only as reasonably required
to perform its obligations under this Agreement and only to its employees and
contractors who are bound by signed, written agreements sufficient to enable
Recipient to enforce all the provisions of this Section. The restrictions of
this Agreement on use and disclosure of Confidential Information shall not apply
to information that: (i) is in the possession or control of Recipient at the
time of its disclosure hereunder; (ii) is, or becomes publicly known, through no
wrongful act of Recipient; (iii) is received by Recipient from a third party
free to disclose it without obligation to Owner; or (iv) is independently
developed by Recipient without reference to Confidential Information.
17.
LIMITATION OF LIABILITY
The parties acknowledge that
the limitations set forth herein are integral to the amount of fees levied in
connection with this Agreement, and that, were websitepipeline to assume any
further liability other than as set forth herein, such fees would of necessity
be set substantially higher. websitepipeline does not monitor or exercise
control over the content of the information transmitted through its facilities.
Use of the Services or any information that may be obtained there from is at
Your own risk. websitepipeline shall have no responsibility or liability for
the accuracy or quality of information obtained through its Services.
websitepipeline shall not be deemed to be in default of any provision of this
Agreement or be liable for any delay, failure of performance or interruption of
the provision of Services to You resulting, directly or indirectly, from any (i)
weather conditions, natural disasters or other acts of God, (ii) action of any
governmental or military authority, (iii) failure caused by any supplier of
electricity, or telecommunication or other Internet provider, or (iv) other
force or occurrence beyond its control. The exclusive remedy against
websitepipeline for any damages whatsoever to You arising out of or related to
this Agreement shall be the refund of the lesser of $1,000 or the total fees
paid by You to websitepipeline within the past 60 days with respect to the then
current term of this Agreement.
WEBSITEPIPELINE SHALL NOT BE
LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR
FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE
SERVICES BY YOU OR ANY THIRD PARTIES EVEN IF WEBSITEPIPELINE HAS BEEN ADVISED OF
THE POSSIBILITY THEREOF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii)
ANY LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, MIS-DELIVERIES OR
SERVICE INTERRUPTIONS, OR VIRUSES, “HACKING”, ACCESS OR INTRUSIONS CAUSED BY
THIRD PARTIES. WEBSITEPIPELINE PROVIDES THE SERVICES "AS IS" AND “WITH ALL
FAULTS”, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF COMPLETENESS, ACCURACY, FREEEDOM
FROM INTERRUPTION, OR OF VERIFICATION OF CONTENTS. WEBSITEPIPELINE DISCLAIMS
ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES
ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE AND THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU
SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE
SERVICES AND WEBSITEPIPELINE SHALL HAVE NO LIABILITY THEREFORE.
The limitations of liability
provided herein shall inure to the benefit of websitepipeline and all
websitepipeline Affiliates and to all of the respective officers, directors,
attorneys, employees and agents of websitepipeline and such other entities
("Limited Liability Parties"). The limitations of liability afforded
websitepipeline in this Agreement shall apply whether (i) the action in which
recovery is sought is based in contract, tort (including without limitation,
negligence, product liability, or strict liability), statute or otherwise or
(ii) a Limited Liability Party is alleged to be liable jointly with one or more
parties or otherwise. The forgoing limitations will not apply to the extent
damage, loss, or injury is caused by the willful tortuous misconduct or gross
negligence of websitepipeline.
The immediately preceding
paragraphs are intended to be independent of each other and the failure of the
essential purpose of one shall not affect the other.
18.
MUTUAL INDEMNITY
Each party ("Provider") will
at its expense defend and indemnify the other party ("Recipient") against a
claim that any information, design, specification, instruction, software, data
or material furnished by the Provider ("Material") and used by the Recipient
hereunder infringes or violates a Proprietary Right of another, provided that:
(i) the Recipient notifies the Provider in writing within thirty (30) days of
the claim; (ii) the Provider has sole control of the defense and all related
settlement negotiations; and (iii) the Recipient provides the Provider with the
assistance, information, and authority reasonably necessary to perform the
above; reasonable out-of-pocket expenses incurred by the Recipient in providing
such assistance will be reimbursed by the Provider. The Provider shall have no
liability for any claim of infringement resulting from: (i) the Recipient's use
of a superseded or altered release of some or all of the Material if
infringement would have been avoided by the use of a subsequent unaltered
release of the Material which the Provider provides to the Recipient; or (ii)
any information, design, specification, instruction, software, data, or material
not furnished by the Provider. In the event that some or all of the Material is
held or is believed by the Provider to infringe, the Provider shall have the
option, at its expense: (i) to modify the Material to be non-infringing; or (ii)
to obtain for the Recipient a license to continue using the Material. If it is
not commercially feasible to perform either of the above options, then the
Provider may require from the Recipient return of the infringing Material and
all rights thereto. THIS INDEMNITY SECTION STATES THE PARTIES' ENTIRE LIABILITY
AND EXCLUSIVE REMEDY FOR INFRINGEMENT.
19.
INDEMNITY BY YOU
You shall at Your expense
defend, indemnify, and hold websitepipeline harmless, and each websitepipeline
affiliate and the officers, directors, employees and agents of websitepipeline
and each websitepipeline affiliate (each an "Indemnified Party") against any
losses, claims, damages, liabilities, penalties, actions, proceedings or
judgments (collectively, "Losses") to which an Indemnified Party may become
subject and which Losses arise out of, or relate to this Agreement, including
without limitation, (1) any third-party actions arising out of or relating to
the Services or Your website, or (2) Your use of the Services and Your website,
including without limitation all Losses arising out of Your responsibilities for
(i) legal compliance (Section 5), (ii) Snap Websites and Syndicated Content (Section 11), (iii) electronic commerce, Online Store, credit card
transactions, visitor/customer information, and financial calculations (Section
13), (iv) anti-spam policy and downloading or data or files
(Section 14), (v) termination and any failure by You to obtain a copy of
Your website data (Section 13), and (vi) confidential information (Section 16). You will reimburse an Indemnified Party for all legal and
other expenses, including reasonable attorneys' fees incurred by such Indemnified Party in connection with
investigating, defending or settling any Loss whether or not in connection with
pending or threatened litigation in which such Indemnified Party is a party.
The rights and obligations of the parties regarding this Section are subject to
the following: (i) the Indemnified Party promptly notifies You in writing of a
claim promptly upon becoming aware of such Claim; (ii) You shall have exclusive
control of the defense of any action to which the Claim relates, however, any
settlement will be subject to the prior written consent of the Indemnified
Party; and (iii) the Indemnified Party cooperates with You to facilitate such
defense or settlement. Once given notice of such Claim, if You do not defend
any such claim giving rise to indemnity obligations, the Indemnified Party may
take any of the above actions and shall be fully indemnified by You.
20.
ARBITRATION
Except for actions to protect
propriety rights and to enforce an arbitrator's decision hereunder, all
disputes, controversies, or claims arising out of or relating to this Agreement
or a breach thereof shall be submitted to and finally resolved by arbitration
under the rules of the American Arbitration Association ("AAA") then in effect.
There shall be one arbitrator, and such arbitrator shall be chosen by mutual
agreement of the parties in accordance with AAA rules. The arbitration shall
take place in Greenville, South Carolina. The arbitrator shall apply the laws
of the State of South Carolina to all issues in dispute. The findings of the
arbitrator shall be final and binding on the parties, and may be entered in any
court of competent jurisdiction for enforcement. Legal fees shall be awarded to
the prevailing party in the arbitration.
21.
NOTICES
Any notice or communication
required or permitted to be given hereunder may be delivered by hand, deposited
with an overnight courier, sent by email or facsimile (provided delivery is
confirmed), or U.S. Mail (registered or certified only), return receipt
requested. Your notices to websitepipeline shall be sent to:
websitepipeline
319 Garlington Road, Suite B-3
Greenville, SC 29615
ATTN: Legal Notice
or via fax
to (864) 272-3299.
websitepipeline’s may provide notice to the address, email or facsimile provided
by You as part of this Agreement. Such notice will be deemed to be given when
received.
22.
CONTINUING OBLIGATIONS
The following obligations
shall survive the expiration or termination hereof: (i) any and all limitations
of liability and indemnities granted by either party herein, (ii) any covenant
granted herein for the purpose of protecting the proprietary rights of either
party or any remedy for breach thereof, (iii) the payment of taxes, duties, or
any money to either party hereunder, and (iv) the return of materials to either
party.
23.
MISCELLANEOUS
This Agreement and the
documents or instruments referred to herein contain the entire agreement and
understanding between the parties with respect to the subject matter hereof and
supersede all prior oral or written agreements or understandings between the
parties relating thereto. This Agreement may be modified only by a written
agreement signed by the parties.
This Agreement shall be
construed under the laws of the State of South Carolina, without regard to its
principles of conflicts of law. The parties agree
that any action arising under or in connection with this Agreement shall be
brought in the state or federal courts in Greenville County, South Carolina, and
the parties hereby waive any rights to assert jurisdiction or venue in any other
court. Your rights and obligations under this Agreement are not
assignable without the prior written consent of websitepipeline.
websitepipeline may assign its interest hereunder without Your consent. The
failure of either party to enforce at any time any of the provisions hereof
shall not be a waiver of such provision, or any other provision, or of the right
of such party thereafter to enforce any provision hereof. Nothing contained in
this Agreement, express or implied, is intended to confer upon any person or
entity, other than the parties hereto and their permitted assigns, any rights or
remedies of any nature whatsoever by reason of this Agreement.
You agree that You shall
comply with all export, re-export or import laws and regulations of any
jurisdiction from which the website is transmitted or accessed. You further
agree that You shall obtain written authority from all appropriate governmental
bodies, if You intends at any time to re-export any items originating from such
jurisdiction to any proscribed destination.
If any provision in this
Agreement is held invalid, void, or unenforceable by a court of competent
jurisdiction, the remaining provisions shall nevertheless continue in full force
and effect without being impaired or invalidated in any way. If and to the
extent the provisions of this Agreement conflict with 17 U.S.C. § 512, 17 U.S.C.
§ 512 shall control.
Government Restricted
Rights Legend. Any Software or Services which are used by or transmitted for or
on behalf of the United States of America, its agencies and/or instrumentalities
(U.S. Government), are provided with Restricted Rights. Use, duplication, or
disclosure by the U.S. Government is subject to restrictions as set forth in
subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software
clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial
Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable.
Manufacturer is Ebiz4idiots, Inc./websitepipeline, 319 Garlington Rd, Suite B-3,
Greenville, SC 29615.
