WEB SERVICE AGREEMENT
us, our) and
(you, your) agree to the following:
|| "Client" means the person who orders the Virtual Server and/or
web services and has ownership and control rights and obligations for the
||"Client Data" means all supporting data files and data
structures provided by the Client for its Virtual Server.
||"Virtual Server" means the server space and software
services provided to the Client including but not limited to the
HTTP service, FTP service, SMTP service, POP service, server extensions,
third-party software, and CGI library scripts.
||"Physical Server" means the serving computers, hardware
and operating- system, and software necessary to operate and support the
Virtual Server in accordance with this Agreement.
||Scope of Services. We will provide you with
the following specific services:
||Physical Server Hardware and Software Services. We will
provide the Physical Servers and other computer and operating-system software
to operate and support the Virtual Server in a manner acceptable in the
industry. Although we will make reasonable efforts to protect and backup
data for you on a regular basis, we are not responsible for the Client Data
residing on the Virtual Server. You are ultimately and solely responsible
for the backup of Client Data stored on your Virtual Server.
||Physical Server Set-Up and Updating. We will configure
the Virtual Server, and Client will load the Client Data onto the server
computers so as to create a fully functional Internet presence. After the
Virtual Server is loaded, set up with the Client Data, and is fully operational,
Client will be responsible for all Web Server content management unless
a design contract is purchased.
||Physical Server Connection and Access. We will provide
connection of the Virtual Server to the Internet, including all telecommunications
equipment and connections for the Virtual Server to provide public access
on a 24-hour-a-day, 7-day-a-week basis, with the exception of scheduled
maintenance downtime. We will use our best efforts to provide uninterrupted
Physical Server Connection and Access, except for scheduled maintenance
downtime and any interruption to Physical Server Connection and Access beyond
our control caused by, for example, acts of nature, third-party equipment
or transmission failures, or security breaches.
||Maintenance Services. We will perform maintenance services
as we determine reasonably necessary to maintain the continuous operation
of the Virtual Server. You agree to periodically-scheduled maintenance downtime
periods. We will provide prior notice of the maintenance downtime, except
when circumstances beyond our control limit our ability to do so.
||Hardware, Equipment and Software. You are responsible
for and must provide all telephone, computer, hardware and software equipment
and services necessary to access us. We make no representations, warranties,
or assurances that your equipment will be compatible with our service.
||Web Services. We will develop and market your web site,
upon request, subject to the terms of this agreement.
||Payment Terms. You agree to the following
payment terms in consideration for the services provided:
||Development Costs. 25% of the estimated development
costs is due prior to start, 25% of the estimated development costs is required
after the preview designs, and the remaining 50% is due upon project completion.
Due to the time-intensive nature of web design, we are unable to offer refunds
on completed design work. We do, however, promise that we will work with
you until you are happy with the design.
||Set-Up Fee. You will pay us a one-time, non-refundable
set-up fee according to our current Price Schedule, which is available on
our home page (www.abcdesigns.net) or upon request.
||Service Fee. You will pay us a monthly Service Fee for
the services we provide under this Agreement according to our current Price
Schedule, which is available on our home page or upon request. The Service
Fee is billed to you each month and is due before 30 days. The Service Fee
is subject to adjustment, with notice, according to the current Price Schedule.
||Cancellation. In the event you cancel your service,
a Prorated Fee as set forth in Schedules A will be computed based upon the
actual number of weeks during which we provided services to you. To the
extent the computed Prorated Fee is greater than the portion of the total
fee paid by you to us up to the time of termination, you shall pay the difference
||Breach. In the event we terminate this Agreement because
of a breach, a Prorated Fee as set forth in Schedules A will be computed
based upon the actual number of weeks during which we provided services
to you. To the extent the computed Prorated Fee is greater than the portion
of the total fee paid by you to us up to the time of termination, you shall
pay the difference to us.
||Tax. These fees are exclusive of any and all federal,
state, and local sales, use, value added, excise, duty and any other taxes
assessed with respect to the services provided under this Agreement, except
that your income taxes and any sales or similar taxes on the sale of the
Client products and services to end users shall be the sole responsibility
of the Client.
||Modifications. In the event of changes or
modifications to Schedules A, as agreed to in writing by both parties,we
will estimate the additional fees associated with any such changes or modifications
and you shall pay us these additional fees.
||Representations and Warranties.
Our obligations under this Agreement are
conditioned upon the following representations and warranties:
||Compliance with Law.
You represent and warrant that you will comply
with all applicable state and federal laws in your performance of this
Agreement and in the use and operation of the Virtual Server, including
laws governing technology, software and trade secrets.
||Authority to Contract.
You represent and warrant that you have full
authority and right to enter into this Agreement and that there are no
conflicting claims relating to the rights granted by this Agreement.
You represent and warrant that your performance of
this Agreement and providing the Web Service, including the software or
data files, shall not infringe the intellectual property or other proprietary
rights of any third party.
We represent and warrant that our services shall be
performed in a professional and workmanlike manner, and the computer
servers will be operated in accordance with our obligations as defined by
||Disclaimer of Warranties.
EXCEPT FOR THE EXPRESS
WARRANTIES CONTAINED ABOVE, WE MAKE NO WARRANTY
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT,
AND ALL SERVICES ARE PROVIDED ON AN "AS-IS" BASIS,
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
OR OF NON-INFRINGEMENT.
||You expressly agree that use of our Virtual
Server is at your own risk. Neither we, our employees, affiliates,
agents, third-party information providers, merchants, licensors or
the like, warranty that our service will not be interrupted or error
free; nor do we make any warranty as to the results that may be
obtained from the use of our service or as to the accuracy, reliability
or content of any information serviced or merchandise contained in or
provided through our service, unless otherwise expressly stated in this
||Under no circumstances,
including negligence, will we, our officers,
agents or anyone else involved in creating, producing or distributing our
service be liable for any direct, indirect, incidental, special or
consequential damages that result from the use of or inability to use our
service. We will further not be liable for results from mistakes, omissions,
interruptions, deletions of files, errors, defects, delays and operation, or
transmission or failure of performance whether or not limited to acts of
nature, communication failure, theft, destruction or unauthorized access to
our records, programs or services. You acknowledge that this paragraph
shall apply to all content on our Virtual Server.
||Your exclusive remedy
for all damages, losses and causes of actions
whether in contract or tort (including negligence or otherwise) will not (a)
exceed the actual dollar amount which you paid during the 12-month
period prior to the date the cause of action arose, or (b) include any
incidental, consequential, extemporary or punitive damages of any kind,
including without limitation, loss of data, file, profit, good will, time,
savings or revenue.
||Term and Termination. The following describes
the effective date, duration and methods of termination:
||Effective Date. The Effective Date of this Agreement
is the last date appearing below.
||Duration. This Agreement will commence on the Effective
Date and continue on a month-to-month basis.
||Termination for Convenience. Subject to Section 3.3,
you may terminate this Agreement at any time for your convenience by providing
us with advance written notice.
||Breach or Default. The following constitute a breach
or default of this Agreement:
- your failure to pay the current month's Service Fee by the
next bill's due date,
- your violation of Section 8.0,
- your violation of 9.2, or
- your violation of Sections 4.1, 4.2 or 4.3.
Ownership Rights. We acknowledge that all right, title and interest
in the Client Data shall be solely owned by the Client. We own or have
licensed all server software. In the event that we elect, at our option,
to provide custom software to you, this software will be licensed to you
for use only on our Virtual Servers on a non-exclusive, royalty-free,
fully-paid basis according to the terms of this Agreement.
||Rights Granted. We hereby agree
that all work, including developments, designs, inventions, improvements,
trade secrets, trademarks, copyrightable subject matter or proprietary information
which we make or conceive (the "Work") pursuant to the Agreement shall be
considered to be "work made for hire" under the U.S. Copyright Act, 17 U.S.C.
§ 101 et seq. And shall be owned by you. In the event that any such Work,
or portion thereof, is not construed to be a work made for hire, we hereby
assign to you all right, title and interest in such Work or portion thereof.
We agree that we shall provide necessary assistance to protect, enforce
or perfect the your rights and interests in such patents, copyrights and
trademarks. We shall have the right to display the Work within our portfolio
for the purpose of demonstrating our talents and capabilities. We reserve
all such rights with respect to our own logo, and your are hereby required
to display said logo on every page of your site in a location which would
be seen in the usual course of viewing said pages.
||Activities Subject to Immediate Deactivation.
Any Virtual Server that is used for Illegal, Abusive or Unethical Activity
may be immediately deactivated by us without warning to you. Illegal, Abusive
or Unethical Activities include, but are not limited to, pornography, obscenity,
nudity, violations of privacy, hacking, computer virus, gambling, or promotion
of gambling, and any harassing or harmful materials or uses, as determined
by us. You agree to indemnify and hold us harmless from any claim resulting
from your publications or use of Illegal, Abusive or Unethical materials.
Although we will make reasonable efforts to alert you to such activities
and allow you an opportunity to cure them within a 12-hour period after
discovery, we are not required to give notice before deactivating your use
of our services if, in our discretion, your use is or results in Illegal,
Abusive or Unethical activities. If a Virtual Server is disabled, the regular
monthly fees still apply.
||Public Nature of Internet.
Please understand that all information
submitted on the Virtual Server shall be considered publicly accessible.
Important and private information should be protected by you. For
example, we are not liable for protection or privacy of electronic mail or
other information transferred through the Internet or any other network
provider that you may use.
||Unsolicited Electronic Mail.
You are expressly prohibited from sending
unsolicited bulk mail messages ("junk mail" or "spam"). This includes,
but is not limited to, bulk-mailing of commercial advertising, information
announcements, and political tracts. Such material may only be sent to
those who have specifically requested it. Malicious or threatening email is
also prohibited. Although we will make reasonable efforts to alert you to
such activities and allow you an opportunity to cure them within a 12-hour
period after discovery, we reserve the right to immediately deactivate your
use of our service if we discover such activity. Further, you agree to
indemnify and hold us harmless from any claim resulting from your use or
distribution of electronic mail services through the service provided
through this Agreement.
||Governing Law and Attorneys' Fees. This Agreement will
be interpreted and applied in accordance with the laws of the state of Massachusetts,
without regard to the conflicts of law provisions. In any action or proceeding
to enforce rights under this Agreement, the prevailing party will be entitled
to recover costs and attorneys' fees, whether or not a suit is actually
||Control and Ownership of IP.
We maintain and control ownership of all
IP numbers and addresses that may be assigned to you, and we reserve, in
our sole discretion, the right to change or remove any and all IP numbers
||Excessive CPU Usage.
Virtual Servers which use, in our discretion, CPU
processing capacity on the Physical Server in excess of the designed
processing capacity will be subject to immediate deactivation. Upgrades
to the processing capacity are available.
||Resale of Services and Flow-down of Obligations.
You may resell space
on your own Virtual Servers but you must first obligate any such resale to
the same terms of this Agreement and incorporate into that resale all of our
rights, including our rights regarding content and activity.
You certify that you are at least 18 years of age.
||Transfer. You may not transfer or assign this Agreement
without the written consent of ABCDesigns.
After you have reviewed the Virtual Server Agreement, please print, sign, date,
and fax the Acknowledgment of Receipt and Execution
of Agreement to ABCDesigns (7O7)