This WEB SITE DEVELOPMENT AGREEMENT (“Agreement”) is an agreement between WEBSITESERVICE4ALL (“Company”) and the party set forth in the related order form (“Customer” or “you”) incorporated herein by this reference (together with any subsequent order forms submitted by Customer, the “Order”) and applies to the purchase of all services ordered by Customer on the Order (collectively, the “Services”). The parties understand, acknowledge and agree that this is an online agreement which is being entered into in conjunction with the Order.
PLEASE READ THIS AGREEMENT CAREFULLY.
BY SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY’S USAGE POLICIES. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
1. TERM AND TERMINATION
A. Term of Agreement. This Agreement shall be effective as of the date set forth on the Order and shall remain in force until seven (7) days after the last Coordination Step as set forth in the applicable Order, which shall take place not later than one hundred twenty days (120) after the Order (“Delivery Date”). Company cannot guarantee the Delivery Date but will use commercially reasonable efforts to perform the Services in an efficient and timely manner.
B. Termination. This Agreement may be terminated by either party upon written notice to the other, if the other 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. This Agreement may be terminated by Company (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with Company or hinders Company’s ability to perform the Services hereunder. If Customer terminates agreement, Customer will be responsible for all fees including monthly maintenance fees for the minimum term of one year. Customer understands and agrees that Company may remove work completed at any time for Customer’s website if Customer fails to make full payment for the website provided by Company.
2. COMPANY’S AND CUSTOMER’S RESPONSIBILITIES
A. Scope of Work. Customer hereby retains the services of Company to design the Web Site for Customer in accordance with the Order.
B. Changes. Changes to this Agreement, the Order or to any of the specifications of the Web Site shall become effective only when a written change request is executed by the Customer and Company (“Change Order”). Company agrees to notify Customer promptly of any factor, occurrence, or event coming to its attention that may affect Company’s ability to meet the requirements of this Agreement, or that is likely to occasion any material delay in the Services. In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.
C. Customer’s Responsibilities. Customer agrees to perform all tasks assigned to Customer as set forth in this Agreement or a Change Order, and to provide all assistance and cooperation to Company in order to complete timely and efficiently the Web Site. Company shall not be deemed in breach of this Agreement, the Services, a Change Order, or any milestone in the event Company’s failure to meet its responsibilities and time schedules is caused by Customer’s failure to meet (or delay in) its responsibilities and time schedules set forth herein, a Change Order, or this Agreement. In the event of any such failure or delay by Customer (i) all of Company’s time frames, milestones, and/or deadlines shall be extended as necessary; and (ii) Customer shall continue to make timely payments to Company as set forth in this Agreement and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by Company. Customer shall be responsible for making, at its own expense, any changes or additions to Customer’s current systems, software, and hardware that may be required to support operation of the Web Site. Unless otherwise contracted with Company or reflected in a Change Order, Customer shall be responsible for initially populating and then maintaining any databases on the Web Site as well as providing all content for the Web Site. With the execution of a Change Order specifically asking Company to assesses the Customer’s systems, software and hardware from time to time, Company may agree to perform this function at normal Company rates.
3. WEB SITE DESIGN
A. Design. The design of the Web Site shall be in substantial conformity with the material provided to Company by Customer. Web Site consultation will be provided according to the number of coordination steps outlined for the plan purchased in the Order. Customer will provide direction to Company by accessing the Company’s Customer Relationship Management system (“CRM”) and delivering content for Web site construction within. Web Site text will be supplied by the Customer unless copywriting services have been purchased. Development of web pages will take place on the Customer’s established web hosting service where the domain name is hosted at the time of order. All server technical issues are to be handled by Customer web hosting provider unless otherwise noted amongst all parties. Minor updates and changes include any minor modifications and modifications to work out backend database issues and functionality. This does not include adding features beyond the scope of the Order. Company shall not include, as determined in its sole discretion, any of the following in the Web Site or in Customer’s directory on Company’s Web Server: text, graphics, sound, or animations that might be viewed as obscene or any illegal activities; links to other web sites that might be viewed as obscene or related in any way to any illegal activities; impressionistic or cartoon-like graphics (unless provided by Customer); invisible text, metatags (i.e., text that is present only when a “Webcrawler” or other Web indexing tool accesses the Web Site), or any other type of hidden text, hidden information, hidden graphics, or other hidden materials; or destructive elements or destructive programming of any type.
B. Coordination Steps. Customer understands that submissions for Web Site development are limited to the number of coordination steps as provided in the Order. Customer is encouraged to provide as much instruction and direction as possible with each submission.
C. Accessibility of Web Site During Construction. Throughout the construction of the prototype and the final Web Site, the Web Site shall be accessible to Customer through the CRM. Until Customer has approved the final Web Site, none of the Web Pages for Customer’s Web Site will be accessible to end users unless Customer has not responded to Company requests to finalize the order. Company retains the right to publish the web site if (i) Customer does not provide all content necessary for publication within 10 business days from the date of the order, or (ii) setup of Web site is completed and customer has purchased services which include monthly maintenance services.
D. Completion Date. Company and the Customer shall work together to complete the Web Site in a commercially reasonable manner. Customer must supply Company complete text and graphics content all web pages contracted for within two (2) weeks of the date of the Order unless otherwise noted. If Customer has not submitted complete text and graphics content within three (3) weeks after the Order, an additional continuation fee of ten percent (10%) of the total Order price will also be assessed each month until the Web Site is published. Customer understands and agrees that Company is not responsible for delivering the completed Web Site on any specific date and shall not be deemed in breach of this Agreement or Change Order(s) for failing to meet any verbal or written delivery schedule or request by Customer. Customer is hereby notified that any Change Order(s) and/or modifications to the original and/or future specifications will extend the length of time required for Company to provide a completed Web Site.
F. Copyright to Web Site. Customer acknowledges, understands and agrees that Company may use its own and/or may purchase third party licenses for products or services that are necessary for Company to design and develop the Web Site. Such products may include, but are not limited to server-side applications, clip art, “back-end” applications, music, stock images, or any other copyrighted work (“Outside Content”) which Company deems necessary to purchase on behalf of Customer to design and develop the Web Site. Customer further acknowledges and understands that any Outside Content used to design and develop the Web Site is owned by Company and/or such third parties and cannot be transferred to Customer and is hereby specifically not transferred to Customer and shall remain the property of Company and/or such third parties. Outside Content which is owned and/or purchased by Company may be used in the design and/or development of other web sites separate from Customer. Customer and Company agree that upon payment in full of the fees associated with the design and development of the Web Site, Customer shall own a worldwide right, title, and interest in and to the Web Site (including, its source code and documentation) (the “Custom Programming”). Customer and Company agree that Company shall retain a worldwide, royalty-free, non-exclusive, transferable, and perpetual right and license to the Custom Programming including, but not limited to, the right to modify, amend, create derivative works, rent, sell, assign, lease, sublicense, or otherwise alter or transfer the Custom Programming. Customer and Company also agree that the design and development of the Web Site may include source code, documentation, and/or application programs that were previously written or developed by Company and modified to meet Customer’s specific requirements (the “Code Content”). Customer shall own all worldwide right, title, and interest in and to the Code Content, but shall provide Customer (upon payment in full of the fees associated with the design and development of the Web Site) a worldwide, royalty-free, non-exclusive, transferable and perpetual right and license to use the Code Content. Company and its subcontractors retain the right to display graphics and other web design elements of the Web Site as examples of their work in their respective portfolios.
This Agreement does not provide Web Site maintenance unless a Web Site maintenance plan is purchased or if included in the purchased plan or Order. If the Customer or an agent other than Company attempts updating Customer’s pages, time to repair web pages will be assessed at an hourly rate. Changes requested by the Customer beyond those limits will be billed at the hourly rates set forth in the Order. This rate shall also govern additional work authorized beyond the maximums specified in the Order for such services as webpage design, editing, modifying product pages and databases in an online store, and art, photo, graphics, or any other services.
The total price for all of the work set forth in the Agreement (excluding post-approval modifications not implemented by Customer) shall be set forth in the Order (the “Development Fee”). This price covers all work for the Order (excluding post-approval modifications not implemented by Customer). Unless otherwise stated in the Order, the Development Fee to Company is due and payable upon placing the Order and Company shall have no obligation to perform any work until payment is received and such funds are cleared from the relevant financial institution. Company provides a 30 day money back guarantee on web design work. Company’s services are “AS-IS, WHERE-IS, WITH ALL FAULTS” and no refunds shall be provided for Company’s services hereunder after 30 day money back guarantee has expired or website has been published or website files have been delivered to Customer. Customer acknowledges that all plans with a Recurring Monthly Total or Annual Monthly Total require a minimum Two(2) year term commitment unless otherwise noted on Order. Customer acknowledges that they are responsible for all fees associated with processing and crediting of credit cards. A charge will be assessed on services requiring refund to a Customer credit card. Customer further represents and warrants that it has the authority to enter into this agreement. Company has the right to change fees for services at any time. As of January 2013, fees for basic maintenance packages will start at $44.95/mo.
In the event of the debtor defaulting in any single installment, the creditor has the right to proceed against the debtor for the full balance of the debt outstanding.
A. Company Indemnity. In performing services under this Agreement, Company agrees not to design, develop, or provide to Customer any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), privacy, or other rights of any person or entity. If Company becomes aware of any such possible infringement in the course of performing any work hereunder, Company shall immediately so notify Customer in writing. Company agrees to indemnify, defend, and hold Customer, its officers, directors, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of or relating to (a) the Agreement, (b) the performance of the Agreement, or (c) the Deliverables, other than Customer’s responsibilities and Customer Content. This indemnification shall include attorney’s fees and expenses, unless Company defends against the allegations using counsel reasonably acceptable to Customer. Company’s total liability under this Agreement shall not exceed the amount of the Development Fee derived by Company under this Agreement.
B. Customer Indemnity. Customer shall indemnify and hold harmless Company (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Company as a result of any claim, judgment, or adjudication against Company related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to Company (the “Customer Content”), or (b) a claim that Company’s use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Company must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defense and all related negotiations.
7. REPRESENTATIONS AND WARRANTIES
A. Company makes the following representations and warranties for the benefit of Customer:
1. No Conflict. Company represents and warrants that it is under no obligation or restriction that would in any way interfere or conflict with the work to be performed by Company under this Agreement and the Order. Customer understands that Company is currently working on one or more similar projects for other clients. Provided that those projects do not interfere or conflict with Company’s obligations under this Agreement, those projects shall not constitute a violation of this provision of the Agreement.
2. Conformity, Performance, and Compliance. Company represents and warrants that (1) all Deliverables shall be prepared in a workmanlike manner and with professional diligence and skill; (2) all Deliverables will function under standard HTML conventions; (3) all Deliverables will conform to the specifications and functions set forth in this Agreement; and (4) Company will perform all work called for by this Agreement in compliance with applicable laws. Company will repair any Deliverable that does not meet this warranty within a reasonable period of time if the defect affects the usability of Customer’s Web Site, and otherwise will repair the defect within 24 hours, said repairs to be free of charge to Customer. This warranty shall extend for the life of this Agreement. This warranty does not cover links that change over time, pages that become obsolete over time, content that becomes outdated over time, or other changes that do not result from any error on the part of Company.
3. Disclaimer of All Other Warranties. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ITS WEB PAGES OR THE WEB SITE WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE WEB PAGES WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEB PAGES AND WEB SITE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, DEVELOPER PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
4. 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 EITHER PARTY IS ANY AMOUNT PAID BY CUSTOMER HEREUNDER. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
B. Customer makes the following representations and warranties for the benefit of Company:
1. Customer represents to Company and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Company for inclusion in the Web Site are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Company and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer.
2. From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce.
C. Confidentiality. The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Company and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.
8. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
9. RELATIONSHIP OF PARTIES
A. Independent Contractor. Company, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Company shall be solely responsible for and shall hold Customer harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workers’ compensation.
B. No Agency. Customer does not undertake by this Agreement, the Order or otherwise to perform any obligation of Company, whether by regulation or contract. In no way is Company to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.
10. NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the addresses listed in the Order, emailed, mailed by certified, registered or express mail, return receipt requested or by Federal Express.
B. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
This Agreement shall be governed in accordance with the laws of the State of California. All disputes under this Agreement shall be resolved by litigation in the courts of the State of California including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
12. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Company. Company reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
17. NO INFERENCE AGAINST AUTHOR
No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
Customer and Company agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in San Diego, California and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of California sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of California or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
19. READ AND UNDERSTOOD
Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.
20. DULY AUTHORIZED REPRESENTATIVE
If this Agreement is executed then each Party warrants that their representative whose signature appears on such signature pages is the duly authorized by all necessary and appropriate corporate actions to execute this Agreement.
Adwords and Display Network Advertising Terms of Services
- Payment Terms, Our Process, Budgets, Payments to Adwords:
Payment Terms: Company’s monthly Adwords management fees are month-to-month. Customer can cancel at any moment before the current month ends. Once the month’s charge is automatically processed, there is no refund for that month’s payment.
Our Process: Company will manage Customer Adwords Campaign setup, keywords, Customer Adwords Campaign schedule and all the other options that are involved in running in an AdWords campaign. Upon Customer request, we will provide Customer with reports of how Customer campaign is performing for the month. Customer may also login and see results within their Adwords account. Once Customer’s Adwords account is established the Company will request access for campaign management. Customer’s website will appear on search results pages of Google during different times of the day, depending upon a combination of Customer budget and the schedule it is set to run on. The campaign will run throughout the time period of which the budget and potential overage allows. This may be 30 days or less. Customer’s daily budget and Customers competition’s bid amounts dictate what Customer click costs are and this fluctuates throughout different times of the day, different days of the week and different industries.
Budgets: Customer’s monthly budget is an estimate of the spend on the Customer Adwords account and may vary (including spends over requested budget) by as much as 20% or more. This is due to variations and fluctuations in traffic, times of day, and industries. Customer understands and agrees that Company is not responsible for overages on campaigns. If Company is running a display network campaign, the same budget will be spread across that campaign as well.
Payments to Adwords: Payments for Google Adwords clicks are made directly to Google through the credit card Customer provides to Google in the Customer Adwords account.
- Website Access if Company is not hosting the website:
Customer agrees to give Company temporary access to insert the Google analytics code and other tracking codes to enable us to track and adjust the campaign as results come in. If there’s a delay in getting Company this access, the monthly management fee continues to incur.
- Campaign Adjustments and Pausing:
Company does allow the Customer to pause the adjust the campaign budget at any point and freeze the cost of any clicks that may incur by Google. Such options are also available to Customer directly through Customer Google Adwords account.
(a) Company is not Google, Google AdWords, Facebook or Yahoo;
(b) Company is affiliated with Google by being a “Google Certified Partner”. However, despite this affiliation with Google, Company is a separate entity from Google.
(c) Company will endeavor to help Customer obtain Customer’s online advertising goals by providing Customer with advice, information and technical services in relation to Search Engine advertising/marketing. Unless specifically stated to the contrary in this Agreement, Company does not guarantee any particular rate of return or performance of any online advertising on Google AdWords (including but not limited to any particular search results page/s or rankings). Company cannot be held responsible for commercial outcomes which are associated with the Internet marketing or management of Customer Google AdWords account for the Customer business and/or websites.
(d) Company does not warrant that the functions contained in the account or services provided will be uninterrupted or error-free. In no event will Company or its owners or employees will be liable to Customer or any third party for any damages, including, but not limited to, service interruptions caused by Acts of God, the hosting service or any other circumstances beyond our reasonable control, any lost profits, lost savings or other incidental, consequential, punitive, or special damages arising out of the operation of or inability to operate the website, failure of any service provider, of any telecommunications carrier, of the Internet backbone, of any Internet servers, Customer or Customer site visitor’s computer or Internet software, even if Company has been advised of the possibility of such damages.
(e) Company shall not be liable for any loss or damage which Customer may suffer which is in any way attributable to any delay in performance, completion of our work, or overages incurred by Customer in campaigns, however that delay or loss arises.
Hosting Terms of Service
These Terms of Service (“TOS”) apply to you (“the Customer”) if you have ordered any web hosting, web design, software installation, domain registration, or marketing services (the “Services”) from WebsiteService4All, (“WebsiteService4All.com”). This TOS supersedes any other written or oral policy anddefines the terms that all WebsiteService 4All.com customers agree to when purchasing any service provided by WebsiteService4All.com. WebsiteService4All.com reserves the exclusive right to change, amend or revise any portion of this TOS at any time, with or without written notice to our customers. Customers using any services offered by WebsiteService4All.com agree to be obligated by and must comply with all policies in this TOS or must cancel their Services with WebsiteService4All.com. WebsiteService4All.com reserves the right to discontinue Service to any customer at our sole discretion and may take action against any customer deemed by WebsiteService4All.com to be in violation of this TOS including the cancellation of any services without refund and/or, if deemed appropriate, with legal action.
Customer agrees to conduct themselves in a professional manner at all times when interacting with Company and its employees. Customer understands and agrees that abusing Company employees, whether by lying, cursing, yelling, threatening, or otherwise, whether over the telephone, via e-mail or chat, or when submitting on-line tickets, shall be a violation of this TOS and may be grounds for suspension of all of Company Services or cancellation of all of Customer’s Company Services and termination of this TOS. In addition, making threats of physical violence, either against Company, its facilities, or any of its shareholders, directors, officers, employees, contractors, or agents will be promptly reported to the authorities and will be grounds for immediate termination of this TOS. Any abuse of our staff in any medium or format will result in account termination without refund.
WebsiteService4All.com provides the tools needed to create backups of account data.It is the responsibility of the customer to keep up-to-date archives of their backed up data. WebsiteService4All.com is not responsible for maintaining backups or copies of customer files and therefore is not responsible for any loss of customer data.
Full payment is required in advance before hosting service is established. WebsiteService4All sends out invoices that are due every pay period and payable upon receipt. You warrant and represent that the information you supply when purchasing services from WebsiteService4All (or other information that WebsiteService4All may require) is accurate and truthful. All payment-due notices will be sent by e-mail. No bills or invoices will be sent by postal mail or fax. If payment was not received by the due-date, or a chargeback is received from payments collected from you, your account will be suspended. The domain name associated with the account will be disabled and retained by our company until such time as the billing dispute is resolved. It is your responsibility to ensure that payment is made to WebsiteService4All.com prior to the renewal date and although WebsiteService4All.com sends renewal notices to our customers prior to their renewal date, because of the ability for a customer to change their contact email addresses without notifying WebsiteService4All.com, the customer is ultimately responsible for remembering their renewal date and to make sure payment is made upon the renewal. Customer acknowledges that all plans with a Recurring Monthly Total or Annual Monthly Total require a minimum One (1) year commitment. Customer further represents and warrants that it has the authority to enter into this agreement.
In the event of the debtor defaulting in any single installment, the creditor has the right to proceed against the debtor for the full balance of the debt outstanding.
Your account will be automatically renewed sixty (60) days in advance under the same time and fee structure unless you give written notice to WebsiteService4All.com sixty (60) days before the renewal date that you do not wish to renew or make changes to such account.
6.Disclaimer of Warranty:
The Internet and web site hosting relies on a complex network of hardware, software, network services, and providers of information. Due to the need for an aggregate of all of these providers and service companies working properly, not all services may be available to you at all times. WebsiteService4All.com offers a 99.9% uptime guarantee, which is valid only for WebsiteService4All servers and our primary co-location internet connection. WebsiteService4All.com is not responsible for any down time caused by any providers hardware or network malfunction which is outside of WebsiteService4All capability to directly correct. WebsiteService4All.com customers are diverse and their web sites and the function of those web sites are diverse and WebsiteService4All.com cannot be held responsible for any service interruption due to customer’s error, including but not limited to spamming, the target of a DDOS attack, or any other internet or cyber attack. WebsiteService4All.com MAKES NO EXPRESS OR IMPLIED WARRANTIES (INCLUDING BUT NOTLIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE) WITH RESPECT TO THE SERVICES IT PROVIDES. Neither WebsiteService4All.com nor anyone else involved in the provision of Service is liable to you, the customer, or any third-party for direct or indirect damages resulting from the use, non-use of services provided herein, whether or not such damages resulted from the negligence of WebsiteService4All.com, even if WebsiteService4All.com has been advised to the possibility of such damages.
Customer agrees that web pages and files uploaded to servers will not violate any state, national or foreign laws or regulations; infringe on any intellectual property rights of WebsiteService4All.com or any third party; be defamatory, slanderous or trade libelous; be threatening or harassing; be discriminatory based on gender, race, age; promote hate; or contain viruses or other computer programming defects which result in damage to WebsiteService4All.com or any third party. Customers may not run IRC, bots or clients. Customers may not use WebsiteService4All.com servers for file storage unrelated to the customer’s web site, storage Space is for active website file pages only. Customers may not act as a reseller of WebsiteService4All.com’s services; all data and domains associated with customer’s account must be solely owned by customer. Unacceptable uses also include: Bulk unsolicited emailing, unsolicited e-mailings, newsgroup spamming, child pornography, hardcore pornography or links to such sites, copyrighted MP3, copyrighted music, copyrighted video, illegal content, copyright infringement, trademark infringement, warez, cracks, software serial numbers. WebsiteService4All.com will be the sole and final arbiter as to what constitutes a violation of this policy. WebsiteService4All.com does not normally monitor the contents of customer accounts, however if suspicion occurs, WebsiteService4All.com reserves the right to investigate and terminate a customer’s account, if said account is deemed in violation of this TOS, without notice or refund.
8.Unlimited Features and Excessive Resource User Policy:
Resources are defined as bandwidth, disk space, inode, dns entry, memory and/or processor utilization. As resources are shared among all customers of WebsiteService4All.com, any customer account utilizing more than 8% of the resources described above for longer than 60 seconds may be suspended or terminated without notice or refund by WebsiteService4All.com.
UCE/UBE or “Spam” originating from a server located on our network or associated with a WebsiteService4All.com server is not tolerated. This includes any e-mail that promotes web sites hosted on a server located on the WebsiteService4All.com network but is sent from an e-mail address not associated with that WebsiteService4All.com account. Customer shall not use their WebsiteService4All account or services for chain letters, junk mail, bulk-email, or any use of distribution lists to any person who has not given specific permission to be included in such a process. WebsiteService4All.com reserves the right to deactivate or terminate any account upon any indication of such activity without notice and without refund.
WebsiteService4All.com allows 3rd party software to be uploaded and installed on our servers via auto-installer or manually by customer. It is the responsibility of the customer to maintain the latest secure version of any such software. If said software is found to have security issues and/or allows a third party to gain unauthorized access to WebsiteService4All servers, WebsiteService4All.com may remove the software and suspend or terminate customer’s account without notice or refund.
11.Licensed Software Only:
Client agrees to use only properly licensed third party software in connection with Client’s use of the Services.
12.Limitation of Liability
IN NO EVENT SHALL WEBSITESERVICE4ALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF WEBSITE CONTENTS, EMAIL DATA AND OR DATABASE CONTENTS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE WebsiteService4All.com. SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF WebsiteService4All.com. SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF WEBSITESERVICE4ALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WEBSITESERVICE4ALL’S MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO WEBSITESERVICE4ALL FOR THE SERVICES DURING THE PRIOR TWELVE (12) MONTHS. TO THE EXTENT APPLICABLE LOCAL LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, WEBSITESERVICE4ALL. LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
You, the customer, agree to indemnify, defend and hold WebsiteService4All and its affiliates, directors, officers, employees and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys’ fees, resulting from any third-party claim, action, dispute or demand related to your use of the Services, your violation of any of the provisions of this Agreement or from your placement or transmission of any materials or content onto WebsiteService4All’s servers. Such liabilities may include, but are not limited to, those arising from the following: (a) with respect to your business, (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein or anti-spam policy; (b) any damage or destruction to WebsiteService4All.com equipment or to any other accountholder, which damage is caused by or otherwise results from acts or omissions by you, your representative(s) or your designees; (c) any personal injury or property damage arising out of your activities related to the Services, unless such injury or property damage iscaused solely by WebsiteService4All.com’s gross negligence or willful misconduct; and (d) any other damage arising from your equipment or your business.
This Agreement shall be interpreted under the laws of the State of California without regard to any conflict of law’s provisions. Any action between the parties to this agreement for the breach of this agreement or any action or claim in any way relating thereto shall be venued in the Superior Court of the State of California, County of San Diego. The parties to this agreement hereby consent to jurisdiction in that court and agree to accept service by mail and hereby waive any defense of any kind related to jurisdiction or venue. Services Provided by WebsiteService4All.
15.Cancellation & Refunds:
Should you become dissatisfied with our hosting services within the first 30 days of your account activation, WebsiteService4All.com will refund your hosting fee subject to the terms listed below. Refunds are not available for customers after the 30 days of account activation. You may cancel your account at any time in order to make sure that your account is not renewed. You must contact customer service by emailing billing@WebsiteService4All.com or visiting WebsiteService4All.com/support/ to verify information before cancellation can occur. You will be charged in full for the entire month in which you cancelled your account. Accounts which have negative balances will be sent to collections and all services will be terminated, including domain registrations. Domain Names transferred to our service incur an additional year of registration and therefore are considered a domain registration. As of January 27, 2012 domain registration fees are minimally $15.00/yr. dependent of the domain extension ordered. Domain names of customers which leave our hosting service will be refunded the package price total less the domain registration fee and a $44.95 cancellation fee if the customer leaves WebsiteService4All.com hosting service within the 30 day money back guarantee. Refunds are not available for domain name registrations or professional services including, but not limited to, web site design services and/or software installation services or any combination. Refunds of any kind are not available to any customer violating this TOS.