1.1. "CONTENT" means all text, pictures, sound, graphics, video and other data supplied by Customer to Provider pursuant to Section 4.1(c), as such materials may be modified from time to time.
1.2. "DOMAIN NAME” means the domain name specified for the Website by Customer from time to time.
1.3. "INTELLECTUAL PROPERTY RIGHTS" means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) (including logos, "rental" rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).
1.4. "PROVIDER TOOLS" means any tools, both in object code and source code form, which Provider has already developed or which Provider independently develops or licenses from a third party, excluding any tools which Provider creates
pursuant to this Agreement. By way of example, Provider Tools may include, without limitation, toolbars for maneuvering between pages, search engines, Java applets, and ActiveX controls.
1.5. "USER CONTENT" means all text, pictures, sound, graphics, video and other data provided by Website users.
1.6. "WEBSITE" means the user interface, functionality and Content made available on pages under the Domain Name.
2. WEB HOSTING
2.1. SERVICES. Following Provider shall provide the following web hosting services:
2.1.1. 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 its self as the administrative, technical and billing contact.
2.1.2. CONTENT CONTROL. Customer shall have sole control over the Content unless Content (a) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (b) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (c) be obscene, child pornographic or indecent; and (d) 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 or (e) if deemed inappropriate by Provider. Provider shall also permit Customer to electronically transmit or upload Content directly to the Website.
2.1.3. SITE BACKUP. At Provider's expense, Provider shall maintain a complete and current copy of the Website. In the event that a full or partial restore is request by the Customer, the Provider will perform the restore and bill the Customer at the Providers then current rates.
2.1.4. STANDARDS. Provider's hosting standards shall conform to the following:
126.96.36.199. AVAILABILITY OF WEB SITE. The Website shall be publicly available to users a minimum of 96% of the time during any 24 hour period, 97% of the time during any 7 day period, and 98% of the time during any 30 day period; and there will be no period of interruption in public accessibility to the Website that exceeds 4 continuous hours.
188.8.131.52. 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.
184.108.40.206. SECURITY. Provider shall prevent unauthorized access to the Shadow 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.
2.2. CUSTOMER LICENSE. During the period that Provider provides web hosting services pursuant to this Section 2, 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.
2.3. 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.
3.1. FEES. Except as otherwise specified, Provider shall invoice all fees monthly, quarterly or annually and payment is due 15 days from date of invoice. Customer is responsible to pay all taxes based on Customer’s net income.
3.2. 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, material and supply costs, within 20 days after Customer's receipt of expense Invoice(s).
4. TERM AND TERMINATION
4.1. TERM. The initial term of this Agreement is one year. Thereafter, this Agreement shall continue until terminated with at least 90 days written notice.
4.2. SUSPENSION OF SERVICE. When payment in full is not made by Customer on or before any due date, Provider shall have the right on or after the 15th calendar day after the due date to temporarily suspend Service to Customer until such time as Customer has paid all arrearages, including any reconnection fees and interest, or to terminate the Service at Provider’s option. Provider reserves the right to assess a reconnection charge should the Customer’s service be suspended or disconnected. Further, the Service provided to Customer is subject to the condition that it not be used for any unlawful
purpose or in any unlawful manner and may be terminated or suspended by Provider, at Provider’s option, if any such prohibited use occurs.
4.3. 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.
4.4. EARLY TERMINATION. In the event the Customer Terminates Hosting earlier than defined in section 4.1 Customer agrees to pay the for full term remaining within 3 business days.
4.5. EFFECT OF TERMINATION. Sections 1, 4.3, 6, 7, 8, 9, 10, and 11 shall survive termination of this Agreement.
5. CUSTOMER COVENANTS
During the period that Provider provides Web hosting services pursuant to Section 4, 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.
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.
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 herein. 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. 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. 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
PROVIDER DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCT NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PROVIDER WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE
THAT FOR ANY LIABILITY RELATED TO THE SERVICES AND/OR PRODUCT, DBS SUPPORT, INC. IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED PURSUANT HERETO. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
11. GENERAL PROVISIONS
11.1. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. Venue shall only be proper in the Circuit Court for Sangamon County, Illinois.
11.2. COMPLIANCE WITH LAWS. Provider shall ensure that its web hosting services will comply with all applicable international, national and local laws and regulations.
11.3. 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.
11.4. 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.
11.5. 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.
11.6. NOTICE. Any notices required or permitted hereunder shall be given to the appropriate party at 314 N Main Plz, Chatham, IL 62629 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, and 5 days after the date of mailing.
11.7. 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.
11.8. LEGAL FEES. In the event Provider is required to commence legal action for the recovery of any equipment or any fees, charges or damages covered by the provisions of the Agreement, Customer agrees to pay Provider all costs and attorney’s fees incurred by Provider.
11.9. 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.
IN WITNESS WHEREOF, each of the parties hereto have executed this Agreement as of the date first written above.