Website Development & Hosting Agreement
TERMS OF OUR WEB DEVELOPMENT AND HOSTING SERVICES
Section 1 – Payment Terms
You agree to pay company an initial development fee (the "Initial Fee") and a monthly hosting fee (the “Monthly Fee”), billed as a single annual payment, as described in our pricing Agreement as Annex A. Invoices shall be submitted by the Company for payment by Customer. Payment is due upon receipt and is past due ten (10) business days from receipt of invoice. The Initial Fee, setup fees, domain registration fees of any other fees incurred as a result of a work order or job requested by the customer are non-refundable. The company reserves the right to increase any and all fees described in our pricing Agreement. A finance charge of 10% per month on the unpaid amount of an invoice, or the maximum amount allowed by law, will be charged on past due accounts. Payments by Customer will thereafter be applied first to accrued interest and then to the principal unpaid balance. Customer shall also be liable for all attorney and collection fees arising from Company's efforts to collect any unpaid balance of Customer’s account(s). Customers who are current in paying their hosting fees are entitled to one hour of updates to be conducted twice per year, for a total of two hours of an update per the calendar year (the “Scheduled Updates). The Company reserves the right to determine the timing of any Scheduled Updates. Any work performed by Company on the Customer website beyond the Scheduled Updates will be billed and invoiced at a standard rate described on Annex A and it will be due upon the receipt of the invoice. Any requests which must be completed within two weeks of a Customer request shall be considered rush requests and shall be billed separately to Customer at the rush rates described on Annex A. A fee shall be applied to website transfers of ownership, to cover configuration changes, programming, or any other task that might be required to prepare the website for a new administrator, customer, or owner. This fee will be charged to the new administrator, customer, or owner.
Section 2 – Term & Termination
This Agreement shall be effective as of the date you place an order for Services and shall remain in force until it is terminated. This Agreement may be terminated by either party upon sixty (60) day written notice to the other. This agreement shall also terminate if a party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice of breach. The Company may lock or freeze public access to The Customer's website until past due invoices are paid in full. This Agreement may be terminated by Company (i) immediately if Customer fails to pay any fees hereunder; (ii) if Customer fails to cooperate with Company or hinders Company’s ability to perform the Services hereunder; (iii) if Customer includes in their customized template website any adult material or material that is deemed illegal, immoral or improper in any jurisdiction; or (iv) if Customer includes in their customized template website any material that infringes the intellectual property of any third party. Prepaid annual hosting fees are refundable on a prorated basis upon termination of this agreement by Customer. Otherwise, prepaid annual hosting fees are non-refundable.
Section 3 – Service & Hosting Terms
The Company’s product is a customized template website design system. Upon payment of the Initial Fee, we shall set up and customize the customized template for the Customer. After initial customization, the Customer shall update the content of their website through the administration system. Customized template websites shall only be hosted on our servers and our partner's servers and cannot be transferred to a third party hosting provider. We do not monitor the content of our Customer’s websites. However, you agree not to include in your customized template website any content that infringes the intellectual property of anyone, including but not limited to copyrighted text, copyrighted images, and trademarks. The Company will ensure 99% website uptime for a given year. Scheduled maintenance time of fewer than five hours each month will not be counted towards the downtime guarantee. We currently do not offer any e-mail hosting solutions. Customer will need to use a third party to host their email accounts or mail exchange servers. The Company shall maintain the right to display a link, including a linked image, to our websites, including but not limited to monadnockcloud.com.
Section 4 – Intellectual Property Rights
Our customized templates shall only be hosted on our Company’s and select third-party vendors servers. The customer is not entitled to transfer a customized template website to another hosting provider. The Company shall retain all intellectual property rights in the customized website template, including all copyrights, under all circumstances including the termination of this Agreement by either party. All data, text, and images uploaded by the Customer onto the customized website template shall remain the property of the Customer.
Section 5 – Limitations of Use
You agree to use our Services only for lawful purposes. You are prohibited from any use of the customized template website hosted by Company that would constitute a violation of any applicable law, regulation, rule or ordinance of any nationality, state, or locality or of any international law or treaty, or that could give rise to any civil or criminal liability. Any unauthorized use of our Services including but not limited to unauthorized entry into the Company’s systems, misuse of passwords, or misuse of any information posted on the Site is strictly prohibited.
Section 6 – Disclaimer of Warranties
The Company warrants that its Services shall be performed by personnel possessing competency consistent with applicable industry standards. No other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Furthermore, no guarantee is made as to the efficacy or value of any website, customized template or hosting service.
THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY THE COMPANY CONCERNING THE SERVICES AND RELATED WORK PRODUCT. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR OTHERWISE. COMPANY DOES NOT GUARANTEE CUSTOMER’S WEBSITE PLACEMENT ON SEARCH ENGINES. COMPANY ONLY PROVIDES A SERVICE TO ITS CUSTOMERS. ALL SOFTWARE, INFORMATION, CONTENT, MATERIAL, FILE, DATABASE, ARCHIVE, TECHNIQUE, PROGRAMS OR ANY OTHER TOOL OR DATA DEVELOPED AND USED FOR THE CREATION AND/OR USAGE OF THE CUSTOMIZED TEMPLATES SERVICES AND HOSTING SERVICE OR SERVICES BELONGS SOLELY TO THE COMPANY, AND IT SHALL NOT BE TRANSFERRED TO CUSTOMERS. CUSTOMERS CAN ONLY UTILIZE THE SERVICES OF THE COMPANY IN COMPANY'S SERVERS AND WITHIN THE COMPANY’S INFRASTRUCTURE.
Section 7 – Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE MAXIMUM REMEDY AVAILABLE TO THE CUSTOMER UNDER THIS AGREEMENT IS THE RECOVERY OF THE TOTAL AMOUNT PAID BY CUSTOMER TO THE COMPANY UNDER THIS AGREEMENT, IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
If we are found to be liable to you, our liability to you or to any third party is limited to the total fees you paid to us in the 12 months prior to the action giving rise to the liability.
Section 8 – Indemnification
You agree to indemnify Company and hold harmless from and against any and all claims, losses, expenses, demands or liabilities, including attorneys' fees and costs, incurred by the Company in connection with any claim by a third party (including any intellectual property claim) arising out of (i) materials and content you submit to, post to or transmit to your customized template website, or (ii) your use of our Services in violation of this Agreement or in violation of any applicable law. You further agree that you will cooperate fully in the defense of any such claims. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not, in any event, settle any such claim or matter without the written consent of Company. You further agree to indemnify and hold harmless Company from any claim arising from a third party's use of information or materials of any kind that you submit to, post to or transmit to your customized template website.
Section 9 – Binding Arbitration and Choice of Law
Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, shall be settled by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association, at the option of either party, by a panel of three neutral arbitrators. In the event either party demands such arbitration, the American Arbitration Association shall be requested to submit a list of prospective arbitrators consisting of persons experienced in matters involving business disputes. The party bringing or initiating the action shall be responsible for paying all costs for arbitration, including the arbitrator's’ fees. Each party shall bear its own attorneys’ fees, unless attorney’s fees may be awarded to the prevailing party as a matter of substantive law. The arbitrator shall have no authority to award any punitive or exemplary damages; add any parties; vary or ignore the provisions of this Agreement, and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. The arbitration shall be conducted in English in the city of Keene, New Hampshire. The laws of the State of New Hampshire are incorporated herein and shall be applicable to the arbitration. Any arbitration award may be entered as a judgment in any court of competent jurisdiction.
Section 10 - Severability
If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall be enforced to the fullest extent possible, and the remaining provisions of the Agreement shall remain in full force and effect.
Section 11 – General Provisions
This Agreement supersedes any previous agreements to which you and Company may have been bound. This Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Neither the course of conduct between parties nor trade practice shall act to modify any provision of the Agreement. All rights not expressly granted herein are hereby reserved. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.