Web Hosting Agreement
1. WEB HOSTING.
1.1 SERVICES. Provider shall provide the following web hosting services:
(A) DOMAIN NAME. It is hereby acknowledged that Customer shall own all right, title and interest in and to the Domain Name and all Intellectual Property Rights related thereto. Unless otherwise specified by Customer, Provider shall list Customer’s project liaison as the administrative, technical and billing contact.
(B) CONTENT CONTROL. Customer shall have sole control over the Content. Provider shall not supplement, modify or alter any Work Product which has been accepted or approved by Customer or any Content (other than modifications strictly necessary to upload the Content to the Website) except with Customer’s prior written consent. Provider shall upload all Content, including updates, to the Website within 72 hours of delivery to Provider. Provider shall also permit Customer to electronically transmit or upload Content directly to the Website.
(C) SITE BACKUP. At Provider’s expense, Provider shall maintain a complete and current copy of the Website on the server.
(D) SITE DOWNLOADS. Provider at its expense shall make a complete backup of the Website every 30 days. Customer may reasonably request Provider, at its expense, deliver to Customer a complete electronic copy of the Website (including all Provider Tools).
(E) SERVER LOGS. Customer may reasonably request Provider, at its expense, deliver to Customer in electronic form the server logs of Website activity (the “Server Logs”).
(F) STANDARDS. Provider’s hosting standards shall conform to the following:
(I) AVAILABILITY OF WEB SITE. The Website shall be publicly available to users a minimum of 97% of the time during any 24 hour period, 98% of the time during any 7 day period, and 99% of the time during any 30 day period; and there will be no period of interruption in public accessibility to the Website that exceeds 2 continuous hours.
(II) RESPONSE TIME. The mean response time for server response to all accesses to the Website shall not exceed more than 20 seconds during any 1 hour period.
(III) BANDWIDTH. The bandwidth representing the Website’s connection to the Internet shall be operating at capacity no more than 30 minutes in any 24 hour period.
(IV) SECURITY. Provider shall prevent unauthorized access to the Site, other restricted areas of the Website and any databases or other sensitive material generated from or used in conjunction with the Website; and Provider shall notify Customer of any known security breaches or holes.
(V) INAPPLICABILITY OF FORCE MAJEURE. The foregoing standards shall apply regardless of the cause of the interruption in service, even if the interruption in service was beyond the control of Provider.
(VI) REMEDIES. In addition to other applicable remedies, Customer may immediately terminate this Agreement without a further cure period if: (x) any breach of this Section 1.1(f) is not cured within the later of the next measurable period (only if applicable) or 10 days, (y) the same subsection is breached a second time, or (z) there are 2 breaches of separate subsections (even if cured) within any 6 month period.
1.2 CUSTOMER LICENSE. During the period that Provider provides web hosting services pursuant to this Section 1, Customer hereby grants to Provider a non-exclusive, non-sublicenseable, royalty-free, worldwide license to reproduce, distribute, publicly perform, publicly display and digitally perform the Content and Work Product only on or in conjunction with the Website. Customer grants no rights other than explicitly granted herein, and Provider shall not exceed the scope of its license.
1.3 TRADEMARKS. Subject to the terms and conditions of this Agreement, each party hereby grants to the other party a limited, non-exclusive, non-sublicenseable, royalty-free, worldwide license to use such party’s trademarks, service marks, trade names, logos or other commercial or product designations (collectively, “Marks”) for the purposes of creating content directories or indexes and for marketing and promoting the Website. The trademark owner may terminate the foregoing license if, in its sole discretion, the licensee’s use of the Marks does not conform to the owner’s standards. Title to and ownership of the owner’s Marks shall remain with the owner. The licensee shall use the Marks exactly in the form provided and in conformance with any trademark usage policies. The licensee shall not form any combination marks with the other party’s Marks. The licensee shall not take any action inconsistent with the owner’s ownership of the Marks and any benefits accruing from use of such Marks shall automatically vest in the owner.
2.1 FEES. Except as otherwise specified, Provider shall invoice all fees monthly, and payment is due 30 days from delivery of the invoice. All fees quoted include, and Provider shall pay, all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement, except for taxes based on Customer’s net income.
2.2 EXPENSES. Customer shall reimburse Provider for all reasonable out-of-pocket expenses which have been approved in advance by Customer and which are incurred by Provider in the performance of services hereunder, including but not limited to travel and lodging expenses, long distance calls, and material and supply costs, within 30 days after Customer’s receipt of expense statements including appropriate receipts or other evidence of the expense.
2.4 INVOICES. All invoices must be paid within thirty days(30) of invoice date. If an account remains delinquent 31 days after its invoice date, an additional 5% penalty will be added for each month of the delinquency. Also The Customer is responsible for paying $30 to Embryo Design for each bounced check, in addition to the amount due. Embryo Design reserves the right to remove or make unattainable any webpage or Website or portion of the work, of a delinquent account until full payment is received. Final payment of the balance shall be made within 30 days of submission of the final invoice date (If no other conditions apply, such as payment plans or long term agreements) as hereinabove set forth and Embryo Design shall be entitled to reasonable legal fees in the event the services of an attorney or collection agency are necessary for collection. Checks, Money Orders, and Wire Transfers must be made out to Embryo Design. Bank account and routing information are available upon request. PayPal is also accepted. All fees are in U.S. dollars.
3. TERM AND TERMINATION.
3.1 TERM. The initial term of this Agreement is 30 days and month to month after that. Thereafter, this Agreement shall continue until terminated with at least 30 days written notice.
3.2 TERMINATION FOR CAUSE. Except as otherwise provided for herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for 30 days following written notice to the breaching party.
3.3 TERMINATION DURING INITIAL WEBSITE DEVELOPMENT. In the event that Customer terminates the Agreement prior to initial acceptance of the Work Product, Customer shall return all Work Product to Provider and Provider shall return any Initial Content and refund to Customer any portion of the Design Fee previously paid to Provider hereunder. All licenses granted hereunder shall terminate.
3.4 TERMINATION DURING WEBSITE HOSTING. In the event of expiration or termination of this Agreement while Provider is providing Web hosting services pursuant to Section 1, Provider shall download all materials on the Website to a medium of Customer’s choosing and deliver such materials to Customer within 14 days. In addition, at no cost to Customer, Provider shall: (a) keep the Website publicly accessible for a period of 30 days following the date of termination of this Agreement; (b) if the transfer requires a change in the Domain Name, immediately upon the date that the Website is no longer publicly accessible, and for a period of 12 months thereafter, maintain the Website’s URL and, at such URL, provide a 301 redirect that Customer may use to direct its users to its new Website or some other URL of Customer’s choosing; and (c) if the transfer does not require a change in the Domain Name, cooperate with Customer in assigning a new IP address to the Domain Name as Customer may request and transferring all operations of the Website to a new provider.
3.5 EFFECT OF TERMINATION. Upon the termination of this Agreement for any reason and upon request by Customer at any time, Provider shall promptly return, in their original form, all Content and copies thereof and deliver the originals and all copies of the Work Product in whatever stage of completion to Customer. Subject to Provider’s obligations pursuant to Section 3.4, Provider shall remove all copies of the Content from servers within its control and use reasonable efforts to remove any references to Customer or the Content from any site which caches, indexes or links to the Website.
4. PROVIDER WARRANTIES.
4.1 WORK PRODUCT WARRANTIES. Provider warrants that any Work Product, Provider Tools or Provider-made changes to the Content shall not: (a) infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) be obscene, child pornographic or indecent; and (e) contain any viruses, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
4.2 ADDITIONAL WARRANTIES. Provider warrants that: (a) any Work Product or Provider Tools will conform to their applicable Specifications or acceptance criteria when delivered and for a period of 1 year thereafter; and (b) there is no outstanding contract, commitment or agreement to which Provider is a party or legal impediment of any kind known to Provider which conflicts with this Agreement or might limit, restrict or impair the rights granted to Customer hereunder.
5. CUSTOMER COVENANTS.
During the period that Provider provides Web hosting services pursuant to Section 1, Customer shall not distribute on the Website any Content that: (a) infringes on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, child pornographic or indecent; or (e) contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
6. DISCLAIMER OF WARRANTIES.
EXCEPT AS SET FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.1 OWNERSHIP OF WORK PRODUCT. Provider hereby irrevocably assigns to Customer all right, title and interest in and to all Work Product and documentation produced pursuant to Customer’s requests for services hereunder including, without limitation, all applicable Intellectual Property Rights thereto. If Provider has any such rights that cannot be assigned to Customer, Provider waives the enforcement of such rights, and if Provider has any rights that cannot be assigned or waived, Provider hereby grants to Customer an exclusive, irrevocable, perpetual, worldwide, fully paid license, with right to sublicense through multiple tiers, to such rights. Provider acknowledges that there are, and may be, future rights that Customer may otherwise become entitled to with respect to the Work Product that do not yet exist, as well as new uses, media, means and forms of exploitation throughout the universe exploiting current or future technology yet to be developed, and Provider specifically intends the foregoing assignment of rights to Contractor to include all such now known or unknown uses, media and forms of exploitation throughout the universe.
7.2 OWNERSHIP OF CONTENT AND WEBSITE. As between Provider and Customer, any Content given to Provider by Customer under this Agreement or otherwise, and all User Content, shall at all times remain the property of Customer or its licensor. Provider shall have no rights in such Content or User Content other than the limited right to use such content for the purposes expressly set forth in this Agreement.
7.3 EMPLOYEE AND SUBCONTRACTOR CONTRACTS. Provider shall cause each individual or company employed by Provider in connection with the Work Product to execute a contract regarding confidentiality and assignment of rights prior to each such individual or company’s commencement of services thereunder. Such contracts shall: (a) include a full assignment of all rights to Customer, (b) include a waiver of any moral or similar rights, (c) be freely assignable, and (d) contain restrictions on use and disclosure. Further, with respect to any subcontractors which it employs: (x) Provider shall obtain the written consent of Customer, (y) Provider shall be responsible for the direction and coordination of the services of such subcontractors, and (z) Customer shall have no obligation to pay such subcontractor(s).
8.1 CUSTOMER INDEMNITY. Customer shall defend Provider against any third party claim, action, suit or proceeding alleging any breach of the covenants contained in Section 5. Subject to Section 8.3, Customer shall indemnify Provider for all losses, damages, liabilities and all reasonable expenses and costs incurred by Provider as a result of a final judgment entered against Provider in any such claim, action, suit or proceeding.
8.2 PROVIDER INDEMNITY. Provider shall defend Customer against any third party claim, action, suit or proceeding resulting from Provider’s acts, omissions or misrepresentations under this Agreement (including without limitation Provider’s breach of the warranties contained in Sections 4). Subject to Section 8.3, Provider shall indemnify Customer for all losses, damages, liabilities and all reasonable expenses and costs incurred by Customer as a result of a final judgment entered against Customer in any such claim, action, suit or proceeding.
8.3 MECHANICS OF INDEMNITY. The indemnifying party’s obligations are conditioned upon the indemnified party: (a) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (b) granting control of the defense and settlement to the indemnifying party; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.
9. CONFIDENTIAL INFORMATION.
Customer’s “Confidential Information” are any passwords used in connection with the Website (or the Shadow Site), all Server Logs, all Work Product and documents related to the Work Product, any Content which Customer designates as confidential, and any other materials of Customer which Customer designates as confidential or which Provider should reasonably believe to be confidential. Customer’s “Confidential Information” also includes the Website itself until such time as Customer decides to make the Website publicly available to users. Provider’s “Confidential Information” is defined as the source code of any Provider Tools. Provider understands and agrees that Customer does not want any other Confidential Information of Provider, and should the parties believe that additional confidential information of Provider needs to be disclosed to Customer, the parties shall execute a separate non-disclosure agreement regarding such information. Each party shall hold the other party’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as necessary to perform under this Agreement. The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, or (d) independently developed by recipient without reference to the other party’s Confidential Information.
10. LIMITATIONS ON LIABILITY.
EXCEPT FOR BREACHES OF SECTIONS 1.1, 1.2, 1.3 AND 11.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
11. GENERAL PROVISIONS.
11.1 GOVERNING LAW. This Agreement will be governed and construed in accordance with the laws of the Orange County, Florida without giving effect to principles of conflict of laws. Both parties agree to submit to jurisdiction in Orange County, Florida and further agree that any cause of action arising under this Agreement may be brought in a court in the City of Orlando, FL.
11.2 FURTHER ASSURANCES. Provider shall cooperate with Customer, both during and after the term of this Agreement, in the procurement and maintenance of Customer’s rights to intellectual property created hereunder and to execute, when requested, any other documents deemed necessary or appropriate by Customer to carry out the purpose of this Agreement.
11.3 COMPLIANCE WITH LAWS. Provider shall ensure that its Website design and its web hosting services will comply with all applicable international, national and local laws and regulations.
11.4 SEVERABILITY; WAIVER. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
11.5 HEADINGS. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.
11.6 INDEPENDENT CONTRACTORS. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. Personnel supplied by Provider shall work exclusively for Provider and shall not, for any purpose, be considered employees or agents of Customer. Provider assumes full responsibility for the acts of such personnel while performing services hereunder and shall be solely responsible for their supervision, direction and control, compensation, benefits and taxes.
11.7 NOTICE. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon personal delivery; if sent by telephone facsimile, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, 5 days after the date of mailing.
11.8 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
11.9 INJUNCTIVE RELIEF. Provider hereby waives any right to injunctive relief or rescission and agrees that its sole and exclusive remedy for any breach or alleged breach, termination or cancellation of this Agreement by Customer shall be an action for damages and termination of its services hereunder. Provider agrees that Provider’s services are unique and that Customer may suffer irreparable harm in the event of any breach by Provider and that monetary damages in such event would be substantial and inadequate to compensate Customer. Consequently, Customer shall be entitled, in addition to such monetary relief as may be recoverable by law, to such injunctive or other relief as may be necessary to restrain any threatened, continuing or further breach by Provider, without showing or proving actual damage sustained by Customer and without posting a bond.
11.10 ENTIRE AGREEMENT. This Agreement, including the Exhibits attached hereto, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. It may be changed only by a writing signed by both parties. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
12 CHANGES IN TERMS OF AGREEMENT: Embryo Design reserves the right to make changes to the terms and conditions of this Agreement upon thirty (30) days notice to the Customer, advising of the change and the effective date thereof, but with changes in service fees being effective only at the end of any period for which the Customer has prepaid. Utilization of the service by the Customer following the effective date of such change shall constitute acceptance by the Customer of such change(s).
IN WITNESS WHEREOF, each of the parties hereto have executed this Agreement as of the date first written above.
EMBRYO DESIGN, INC
By: Joseph DiDomenico Title: President