THIS AGREEMENT (“Agreement”) is entered into between Sharp Notions, LLC (“Host”) and the party set forth in the related hosting form (“User”) incorporated herein by this reference (together with any subsequent hosting forms submitted by Client, the “Order”) and applies to the purchase of all services ordered by Client 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.
WHEREAS, Host is engaged in the business of providing Internet web site hosting and related services;
WHEREAS, User desires to retain Host to perform the services provided for in this Agreement.
NOW, THEREFORE, Host and User agree as follows:
1. Scope of Services
Host will provide the services set forth in the Order. Hosting services will be provided according to the terms described in Exhibit B (“Service Level Agreement”) on the Order.
2. Price and Payment
User will pay Host for Hosting Services according to the terms set forth in the Order. User will pay (a) hosting fees in advance, (b) fees for other goods or services as invoiced, and (c) any security deposit as set forth in the Order. Host may change the prices charged for the services upon forty-five (45) days written notice to User, but such increases shall not exceed ten percent (10%) of the rate currently being charged at that time.
3. Term and Termination
A. Hosting Services will commence on the Effective Date of the Order and will extend for a period of one (1) month and will automatically renew from month to month thereafter, unless earlier terminated as provided herein. User may terminate this Agreement without cause upon at least thirty (30) days written notice to Host. Host may terminate this Agreement without cause upon at least sixty (60) days written notice to User. Either party may terminate this agreement upon written notice for material breach, provided, however, that the terminating party has given the other party at least fourteen (14) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party’s right to exercise any other remedies for breach.
B. If User’s account is suspended due to lack of payment, User will pay the then current reinstatement fee, in addition to all other charges then due and payable, prior to restoration of the Services.
4. Customer Service
Host will provide to User reasonable amounts of consultation via telephone and/or electronic mail in the use of the system, but will not assist with any services that are not maintained or controlled by Host.
5. User’s Warranties and Obligations
A. User is responsible for providing all equipment and/or software necessary to access the hardware and systems provided by Host. User agrees to adhere to Host’s Acceptable Use Policy. The Acceptable Use Policy may be modified from time to time in Host’s sole discretion. User’s continued use of the Services after the effective date of such modified Acceptable Use Policy will constitute User’s acceptance of the modified terms. Failure by User to adhere to the Acceptable Use Policy, or any modifications thereto will constitute a material breach of this agreement.
B. User hereby warrants to Host, and agrees that during the term of this Agreement it will ensure that (a) User is the owner or valid licensee of all data and/or content it will upload in conjunction with the Services (the “Content”), and that User has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Host to pay any fees, residuals, guild payments or other compensation of any kind to any person; (b) User’s use, publication and display of the Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated; (c) User will comply with all applicable laws, rules and regulations regarding the Content and will use the services only for lawful purposes; (d) User has used its best efforts to ensure that the Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other type of malicious code.
C. User will cooperate fully with Host in connection with Host’s performance of the Services. User will immediately notify Host of any change in User’s mailing address, telephone, e-mail or other contact information.
6. Ownership of Intellectual Property
A. User hereby grants to Host a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary in the performance of Services: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Content; and (b) make archival or back-up copies of the Content. Except for the rights expressly granted herein, Host does not acquire any right, title or interest in or to the Content, all of which will remain solely with User.
B. Any feedback, data, answers, questions, comments, suggestions, ideas or the like that User sends to Host relating to the Services will be treated as being non-confidential and non-proprietary. Host may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any lawful purpose.
C. Host’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Host. User will not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Host. Host will maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Host to User. Host may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.
D. Host hereby grants to User a non-exclusive, non-transferable, royalty-free license, for the term of this Agreement, to use the provided technology solely for the purpose of accessing and using the Services. User may not use the provided technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from Host to User any right, title or interest in and to the provided technology, and all right, title and interest thereto will remain solely with Host. User will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the provided technology.
7. Warranty and Disclaimer
Host warrants the Services will be performed in a workmanlike manner, and in conformity with generally prevailing industry standards. User must report any material deficiencies in the Services to Host in writing within ninety (90) days of User’s discovery of the deficiency. User’s exclusive remedy for the breach of the above warranty will be the re-performance of the defective services within a commercially reasonable time, or any service credit set forth in any attachments to this agreement. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. HOST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES.
8. Limitation of Liability
Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the Hosting Services, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages.
9. Indemnification of Host
User will indemnify and hold Host harmless against any claims incurred by Host arising out of or in conjunction with User’s breach of this Agreement, as well as all reasonable costs, expenses and attorneys’ fees incurred therein. Host’s total liability under this Agreement with respect to the Services, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by User to Host during the six (6) month period prior to the date the claim arises.
10. Confidential Information
A. All information relating to User that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Host and will not be disclosed or used by Host except to the extent that such disclosure or use is reasonably necessary to the performance of the Services.
B. All information relating to Host that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by User and will not be disclosed or used by User except to the extent that such disclosure or use is reasonably necessary to the performance of User’s duties and obligations under this Agreement.
C. These obligations of confidentiality will extend for a period of three (3) months after the termination of this agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
11. Relation of Parties
The performance by Host of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between Host and User, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
12. Relation of Parties
During the period of this Agreement and for twelve (12) months thereafter, neither party will directly or indirectly solicit or offer employment to or hire any employee, former employee, subcontractor or former subcontractor of the other. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party within six (6) months immediately prior to the alleged violation.
13. Relation of Parties
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
14. Relation of Parties
Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of New York. The arbitration will be held in New York. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
15. Attorneys’ Fees
If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and costs.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
17. Force Majeure
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.
18. No Waivers
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
19. Revisions to This Agreement
The Host may revise, amend or modify this Agreement at any time with thirty (30) days written notice provided to the User. Continued use of the Services after the effective date of the changes will constitute User’s acceptance of the modified terms.
20. Entire Agreement
This Agreement together with the Order and any attachments referred to herein, and in the Order, constitute the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
21. Read And Understood
By signing the Order, the Host and User acknowledge that they have read and understand this Agreement and agree to be bound by its terms and conditions.
22. Duly Authorized Representative
If this Agreement is executed then the Host and User warrant that their representative whose signature appears on the Order is the duly authorized by all necessary and appropriate corporate actions to execute this Agreement.