HOSTING
AGREEMENT
This is Palmer
Products, Inc. HOSTING AGREEMENT (“Agreement”), which
supplements the hosting agreement of each user of Palmer
Products, Inc. systems. Every Customer is subject to this
Hosting Agreement and by virtue of using Palmer Products, Inc.
services, network and/or systems agrees to be bound by this
Hosting Agreement. Palmer Products, Inc. will revise this
Hosting Agreement from time to time. A Customer's use of Palmer
Products, Inc. systems after revision to the Hosting Agreement
posted on Palmer Products, Inc. website at
http://www.retailwebstore.com,
will constitute Customer's acceptance of any changes or additions
to the Hosting Agreement. Palmer Products, Inc. reserves the
right to reject this agreement for any reason or no reason,
prior to acceptance of the agreement. Subject to the terms and
conditions of this agreement, Palmer Products, Inc. will provide
to Customer the services selected by Customer set forth on the
Order Form.
W I T N E S S E T H
WHEREAS, [(“Vendor”)] is in the business of hosting and
maintaining Web Pages on the [(“Vendor”)] computer system and
telecommunication equipment [Palmer Products, Inc.]; and
WHEREAS, Customer desires [(“Vendor”)] to provide Customer with
such hosting, maintenance and support services in connection
with Customer Web Pages; and
WHEREAS, [(“Vendor”)] offers Customer the opportunity to provide
information and services to the general public using the
[(“Vendor”)] System; and
WHEREAS, Customer desires to provide information and services to
the general public using the [(“Vendor”)] System; and
NOW, THEREFORE, [(“Vendor”)] and Customer hereby agree as
follows:
ARTICLE I: DEFINITIONS
Section 1.01 -- Recitals: The above recitals and identifications
of parties are true and correct.
Section 1.02 -- Definitions: The following definitions shall
apply:
(1) Acceptance Date: The term “Acceptance Date” shall mean the
“Acceptance Date” as defined in the Development Agreement.
(2) Access: The term “Access” and variants thereof (including,
but not limited to, the terms “access”, “accessible” and
“accessing”) shall mean to store data in, retrieve data from or
otherwise approach or make use of (directly or indirectly)
through electronic means or otherwise.
(3) Associate: The term “Associate” shall mean an employee of
[(“Vendor”)] or an independent contractor hired by [(“Vendor”)].
(4) Audio: The term “Audio” shall mean recorded audio used in
connection with the Customer Web Page, including (without
limitation) spoken words, narration, sounds, music, lyrics,
noises, sound effects and sound recordings.
(5) Audiovisual Components: The term “Audiovisual Components”
shall mean audiovisuals used in connection with the Customer Web
Pages, including Graphic, Video and Audio.
(6) Cancellation Notice: The term "Cancellation Notice" shall
mean that written notice sent by one party to this Agreement to
the other party to this Agreement seeking to cancel this
Agreement because of breach by such other party.
(7) Coding: The term “Coding” shall mean programming codes,
scripts or statements for developing Web Pages as written in a
programming language including (without limitations) Hypertext
Markup Language (HTML), Java, JavaScript, Virtual Reality
Modeling Language (VRML) and Shockwave programming languages.
The definition of Coding shall be limited to the executable code
as applicable.
(8) Confidential Information: The term “Confidential
Information” shall mean all information concerning the business
and technical plans of [(“Vendor”)] and all information in
connection with the [(“Vendor”)] System, the Hosting Services or
this Agreement which is disclosed by [(“Vendor”)] to Customer or
learned by Customer and which is not: (a) already known to
Customer; (b) conveyed to Customer by a third party without
restriction; (c) released by [(“Vendor”)] without restriction;
(d) independently developed by Customer; or (e) in the public
domain.
(9) Consultant: The term “Consultant” shall mean third party
independent contractors hired by [(“Vendor”)] to perform
services in connection with the Services
(10) Content: The term “Content” shall mean all programs,
information, data, materials and communications stored on or
transmitted through the [(“Vendor”)] System in connection with
the Customer Web Site, including Customer Materials.
(11) Customer: The term “Customer” shall mean the individual or
entity identified as “Customer” on the signature page of this
Agreement.
(12) Customer Materials: The term “Customer Materials” shall
mean Customer information, Technology and Audiovisual
Components, used in connection with Customer Web Site.
(13) Customer Services: The term “Customer Services” shall mean
those services provided by Customer to Users through the
Customer Web Site.
(14) Customer Web Pages: The term “Customer Web Pages” shall
mean the “Customer Web Pages” as defined in the Development
Agreement.
(15) Customer Web Site: The term “Customer Web Site” shall mean
the Customer Web Pages as integrated with and implemented on the
[(“Vendor”)] System which is assigned a Uniform Resource Locator
and accessible by Users through the Internet.
(16) Defect: The term “Defect” shall mean programming, design or
system errors which substantially impair the performance,
utility and functionality of the Customer Web Site as
represented in the Design Document.
(17) Defect Notice: The term “Defect Notice” shall mean that
written notice from Customer to [(“Vendor”)] identifying
Defects.
(18) Design Document: The term “Design Document” shall mean the
“Design Document” as defined in the Development Agreement.
(19) Developer: The term “Developer” shall mean the owner,
authorized distributor, or licensee of the Materials.
(20) Development Agreement: The term “Development Agreement”
shall mean that certain Web Page Development Agreement under
which [(“Vendor”)] designs and develops Web Pages as requested
by Customer and approved by [(“Vendor”)].
(21) Development Order: The term “Development Order” shall mean
the “Development Order” as defined in the Development Agreement.
(22) Development Services: The term “Development Services” shall
mean the “Development Services” as defined in the Development
Agreement.
(23) Domain Name: The term “Domain Name” shall mean that unique
alphanumeric name by which a Web Page is known.
(24) Documentation: The term “Documentation” shall mean written
materials describing the functions and utilities of the Customer
Web Site.
(25) Effective Date: The term “Effective Date” shall mean the
date this Agreement is signed by [(“Vendor”)].
(26) Event: The term “Event” shall mean (i) [(“Vendor”)] receipt
of notice from Registration Company, a third party or the
Developer, challenging or opposing the Domain Name of the
Customer Web Site or use and operation of the Customer Web Site;
(ii) [(“Vendor”)] receipt of notice from a third party
challenging the use of the Materials or the Content; or (iii)
Customer nonpayment of an invoice.
(27) First Order: The term “First Order” shall mean the first
Development Order executed by [(“Vendor”)] and Customer under
the Development Agreement on or after the effective date of the
Development Agreement.
(28) Graphics: The term “Graphics” shall mean graphics used in
connection with the Customer Web Page, including (without
limitations) illustrations, pictorials, animation, pictures,
diagrams, representations, graphics, screen displays, letters,
fonts, icons, flow-charts, and drawings.
(29) Hosting Date: The term “Hosting Date” shall mean the day
next following the last day of the Acceptance Date for the
Customer Web Pages under the First Order.
(30) Hosting Fee: The term “Hosting Fee” shall mean the fee
invoiced by [(“Vendor”)] to Customer for Hosting Services as set
forth in such invoice.
(31) Hosting Services: The term “Hosting Services” shall mean
those certain services for storage of Customer Web Pages on the
[(“Vendor”)] System and providing Users Internet access to such
Customer Web Pages, as set forth under Article II.
(32) Implement: The term “Implement” and variants thereof
(including, but not limited to, the terms “implementation”,
“implementing”, and “implemented”) shall mean to load and make
functional for user access and use.
(33) Implementation Date: The term “Implementation Date” shall
mean the “Implementation Date” as defined in the Development
Agreement.
(34) Internet: The term “Internet” shall mean that certain
worldwide network of interconnected computer systems commonly
referred to as the “Internet”, including the World Wide Web.
(35) Link: The term “Link” shall mean that certain text, icon or
graphics in the Web Page (visible or invisible) that upon
selection or search links or associates such Web Page to an
off-screen or third-party document, text, image, sound, video or
Web Page.
(36) Login: The term “Login” shall mean that certain login
identification provided by [(“Vendor”)] to Customer for
accessing the Customer Web Site as set forth in the Login Notice
subject to the terms and conditions of this Agreement.
(37) Login Notice: The term “Login Notice” shall mean that
certain written notice from [(“Vendor”)] to Customer for issuing
a Login to Customer which specifies the Customer user-id and
password for accessing the Customer Web Site and authorizes
Customer to access the Customer Web Site for the purposes set
forth in the Login Notice.
(38) Maintenance Date: The term “Maintenance Date” shall mean
the date [(“Vendor”)] receives the Maintenance Fee from
Customer.
(39) Maintenance Fee: The term “Maintenance Fee” shall mean the
fee invoiced by [(“Vendor”)] to Customer for Maintenance
Services as set forth in such invoice.
(40) Maintenance Services: The term “Maintenance Services” shall
mean those certain defect resolution and Update Services in
connection with the Customer Web Page.
(41) Maintenance Term: The term “Maintenance Term” shall mean a
one year period of time starting on the Maintenance Date and
renewing for consecutive one year periods of time, unless
earlier terminated or canceled as provided under this Agreement.
(42) Materials: The term “Materials” shall mean third-party
Technology and Audiovisual Components used by [(“Vendor”)] for
support and maintenance of the Customer Web Site.
(43) Nonpayment Notice: The term “Nonpayment Notice” shall mean
that written notice from [(“Vendor”)] to Customer alleging
nonpayment under this Agreement and seeking to cancel this
Agreement unless payment is rendered by Customer as provided
thereunder.
(44) Owner: The term “Owner” shall mean the individual or entity
who is the owner of the products or merchandise offered by
Customer through the Customer Web Site or has the authority to
promote, market and distribute the products offered by Customer
through the Customer Web Site.
(45) Proprietary Information: The term “Proprietary Information”
shall mean the Software, [(“Vendor”)] Materials and
Documentation.
(46) Reactivation Fee: The term “Reactivation Fee” shall mean
the fee invoiced by [(“Vendor”)] to Customer for reactivating
the Customer Web Site for access by Users.
(47) Registration Company: The term “Registration Company” shall
mean an entity that administers the registration and maintenance
of Domain Names including (without limitation) Network
Solutions, Inc.
(48) Restatements: The term “Restatements” shall mean Section
757 of the Restatement of Torts, Section 39 of the Restatement
(Third) of Unfair Competition, 18 U.S.C. §1839 and Section 1 of
the Uniform Trade Secrets Act.
(49) Services: The term “Services” shall mean Hosting Services
and Maintenance Services (as applicable).
(50) [(“Vendor”)] Legend: The term “[(“Vendor”)] Legend” shall
mean a written disclaimer and a written notice that credits
[(“Vendor”)] or a Developer in connection with the Customer Web
Pages and a Link to the [(“Vendor”)] Web Site, including
(without limitation) the following statement: “Web Site Design
by [Palmer Products, Inc.] (Applicable Year) All Rights
Reserved. [(“Vendor”)] disclaims and user hereby waives all
responsibility in connection with the product and the accuracy
of the information and content offered through this Web Site.”
(51) [(“Vendor”)] Materials: The term “[(“Vendor”)] Materials”
shall mean any and all Technology and Audiovisual Components
developed and used by [(“Vendor”)] for support and maintenance
of the Customer Web Site.
(52) [(“Vendor”)] System: The term “[(“Vendor”)] System” shall
mean that certain System used by [(“Vendor”)].
(53) Software: The term “Software” shall mean the Coding
developed by [(“Vendor”)] and the executable code for computer
software developed by [(“Vendor”)] in connection with the
Customer Web Site.
(54) System: The term “System” shall mean computer systems and
communication equipment used for hosting Web Pages and providing
Users access to such Web Pages through the Internet.
(55) Technology: The term “Technology” shall mean (i)
evaluation, technical, scientific, engineering, marketing,
financial and business reports, plans, studies, diagrams, or
flow charts; (ii) all forms and types of scientific, technical,
economic, or engineering information; and (iii) patterns, plans,
compilations, program devices, formulas, designs, prototypes,
methodologies, techniques, ideas, solutions, concepts,
processes, procedures, programs, codes, scripts, adaptations,
derivative works, computers, hardware, networks, products,
machines, compositions of matter, articles of manufacture,
computer software, software libraries, documentation, databases,
database designs, data models, screen displays, images,
graphics, audiovisual works and sound recordings, whether
tangible or intangible, and whether stored, compiled, or
memorialized (without limitation) physically, electronically,
graphically, photographically, or in writing.
(56) Term: The term “Term” shall mean a period of time starting
on the Effective Date and renewing for consecutive one year
periods of time as of the Hosting Date (and each anniversary
thereof), unless earlier terminated or canceled as provided
under this Agreement.
(57) Termination Fee: The term “Termination Fee” shall mean that
certain fee invoiced by [(“Vendor”)] to Customer for early
termination by Customer of the Term as provided in Section 3.08
and as set forth in such invoice.
(58) Termination Notice: The term “Termination Notice” shall
mean that written notice sent by one party to this Agreement to
the other party to this Agreement seeking to terminate this
Agreement.
(59) Unauthorized Access: The term “Unauthorized Access” shall
mean any access to the [(“Vendor”)] System by Customer except
for the exclusive purposes of using the Customer Web Site or
maintaining, modifying and updating the Customer Web Site as set
forth in the Login Notice (as the case may be).
(60) Unauthorized User: The term “Unauthorized User” shall mean
any individual who accesses the Customer Web Site using the
Login except for employees of Customer authorized by
[(“Vendor”)] to access the Customer Web Site using the Login.
(61) Uniform Resource Locator: The term “Uniform Resource
Locator” and the abbreviation “URL” shall mean the address of a
Web Page or Web Site.
(62) Update Services: The term “Update Services” shall mean
those certain services for updating and editing the Content and
making cosmetic modifications to the Customer Web Pages as
provided to Customer in connection with the Customer Web Site
and as set forth in Section 3.02 (excluding Development Services
and Upgrade Services).
(63) Upgrade Services: The term “Upgrade Services” shall mean
Upgrade Services as defined in the Development Agreement.
(64) Users: The term “Users” shall mean individuals or entities
(including Customer) accessing, or attempting to access, the
Customer Web Site and the [(“Vendor”)] System through the
Internet.
(65) Video: The term “Video” shall mean motion visuals used in
connection with the Customer Web Page, including photographs,
pictures, images, film, broadcasts, screen displays and
videotapes.
(66) Web Page: The term “Web Page” shall mean that certain
multimedia interactive product which is a compilation of data,
information, computer software, Audiovisual Components, Coding
and formatted for use on the Internet.
(67) Web Site: The term “Web Site” shall mean a Web Page as
integrated with and implemented on the System which is assigned
a Uniform Resource Locator and accessible by Users through the
Internet.
(68) World Wide Web: The term “World Wide Web” shall mean that
certain information storage system of the Internet which
utilizes graphics, sound, data, files, Links and Web Pages.
ARTICLE II: HOSTING
Section 2.01 -- Hosting: [(“Vendor”)] shall provide Hosting
Services to Customer.
Section 2.02 -- Login: Customer shall have the right to request
a Login, subject to the terms and conditions of this Agreement.
Section 2.03 -- Backup: [(“Vendor”)] shall perform routine
backups of files stored on the [(“Vendor”)] System.
Section 2.04 -- [(“Vendor”)] System: [(“Vendor”)] shall have the
right to modify the [(“Vendor”)] System, including, but not
limited to, communications equipment, hardware, software,
operating system, user interface specifications, transmission
specifications, and other specifications in connection therewith
without notice.
Section 2.05 -- Internet: Customer hereby acknowledges and
agrees that [(“Vendor”)] shall have no obligation to provide
Customer access to the Internet. Customer shall be solely
responsible for acquiring, purchasing, installing, configuring
and maintaining the computer system for accessing the Internet,
including (without limitation) computer software, Internet
access software, computer hardware and telecommunication
equipment.
Section 2.06 -- Authorized Use: Customer shall prevent
Unauthorized Users from accessing the [(“Vendor”)] System.
Customer shall prevent Unauthorized Access to the [(“Vendor”)]
System. Customer shall promptly inform [(“Vendor”)] of any and
all Unauthorized Access (or suspected Unauthorized Access) of
which Customer has knowledge or suspicion.
ARTICLE III: PAYMENT
Section 3.01 -- Hosting Fee: Customer shall pay the Hosting Fee
on the Hosting Date and on the first day of each calendar month
thereafter, except as otherwise approved by [(“Vendor”)] in
writing. [(“Vendor”)] shall have the right to increase the
Hosting Fee on each anniversary of the Term by providing written
notice to Customer thirty days in advance of the first day of
such Term.
Section 3.02 -- Communications: Customer shall be responsible
for all telecommunication costs, including (without limitation)
telephone charges, for Customer access to the Customer Web Site.
Section 3.03 -- Taxes: Customer shall pay any and all applicable
taxes (excluding income taxes assessed against [(“Vendor”)].
Section 3.04 -- Invoice: [(“Vendor”)] shall invoice Customer for
fees and expenses in connection with the Services. Customer
shall pay any such invoice on the due date thereof.
Section 3.05 -- Reactivation Fee: In the event [(“Vendor”)]
deactivates the Customer Web Site due to nonpayment of an
invoice as provided under Section 7.07, [(“Vendor”)] may
reactivate the Customer Web Site as requested by Customer and
approved by [(“Vendor”)] upon payment of the Reactivation Fee.
Section 3.06 -- Termination: Upon termination of this Agreement
by Customer before the Hosting Date or the first anniversary of
the Hosting Date (whichever is earlier), Customer shall pay
[(“Vendor”)] the Termination Fee within thirty days of receiving
an invoice for the Termination Fee.
ARTICLE IV: CUSTOMER OBLIGATIONS
Section 4.01 -- Customer Cooperation: Customer shall promptly
inform [(“Vendor”)] of all questions, comments, events,
occurrences or circumstances which could lead to a claim, demand
or liability against [(“Vendor”)], or of any defects or problems
in connection with the Hosting Services, the [(“Vendor”)] System
and the Customer Web Site of which Customer has knowledge or
suspicion.
Section 4.02 -- Content: Customer shall be solely responsible
for ensuring and preserving the truthfulness, accuracy,
integrity, secrecy and lawfulness of all Content. [(“Vendor”)]
neither warrants nor guarantees that any Content is safe from
interception, alteration, corruption, or deletion by Users.
Section 4.03 -- Regulations: Customer shall be responsible for
monitoring and managing the Customer Web Site and shall delete,
modify, edit and update the Content to ensure that the Content
conforms with this Agreement, does not violate any applicable
laws or regulations, and is not used for, or in connection with,
any unlawful purpose or the commission of any tort. Customer
shall ensure that the Customer Web Site does not contain, from
whatever source, Content which:
(1) infringes upon the copyrights, patents or trademarks of any
person or entity;
(2) misappropriates, or is used in connection with
misappropriation of, the trade secrets of any person or entity;
(3) is used in connection with the commission of any tortious or
unlawful act; or
(4) violates or contravenes any applicable laws or regulations.
Section 4.04 -- Login Confidentiality: Customer shall maintain
confidentiality of the Login. Customer shall assume all
responsibility and liability for harm and damages (direct,
indirect, incidental and consequential) caused in connection
with use of the Login. Customer shall indemnify, release and
hold harmless [(“Vendor”)] from all liability, harm or damages
(direct, indirect, incidental and consequential) caused in
connection with use of the Login.
Section 4.05 -- Authority: Customer hereby represents and
warrants that Customer has obtained all necessary
authorizations, permissions or licenses from the Owner to
promote, market and distribute the products offered by Customer
through the Customer Web Site.
Section 4.06 -- Customer Services: The services to be provided
by Customer through the Customer Web Site shall be performed on
a best efforts basis and shall conform to the standards
generally observed in the industry for similar services.
Customer hereby acknowledges and agrees that all transactions
related to the Customer Services are between Users and Customer,
and that [(“Vendor”)] is not a party to such transactions.
Section 4.07 -- Orders: Customer hereby agrees that all orders
that relate to Customer Services as advertised or promoted
through the Customer Web Site shall be fulfilled in accordance
with the standards generally observed in the industry for
similar services.
Section 4.08 -- Backup: Notwithstanding Section 2.04, Customer
shall maintain current backup copies of the Content.
ARTICLE V: RESTRICTIONS
Section 5.01 -- Export: The [(“Vendor”)] System shall not be
used by Customer to transfer any Content, programs, information
or materials to either a foreign national or a foreign
destination in violation of any applicable law including
(without limitation) the United States export laws (Export
Administration Act, 15 CFR 730-774).
Section 5.02 -- Lawful Purpose: The [(“Vendor”)] System shall be
used for lawful purposes only. The [(“Vendor”)] System shall not
be used to conduct, or solicit the performance of, any business
or activity which is tortious or prohibited by law. Unlawful,
harmful, threatening, abusive, harassing, defamatory, vulgar,
obscene, pornographic, profane, hateful, racially, ethnically or
otherwise objectionable activity or material of any kind, as
determined by [(“Vendor”)], including, but not limited to, any
material which encourages conduct that constitutes a criminal
offense, gives rise to civil liability or otherwise violates any
applicable law shall not be performed using the [(“Vendor”)]
System or posted to or stored on the [(“Vendor”)] System.
Section 5.03 -- Prohibited Activity: [(“Vendor”)] shall have the
right to prohibit conduct performed in connection with the
[(“Vendor”)] System, the Content or the Customer Web Site which
may be harmful, tortious or unlawful, as determined by
[(“Vendor”)]. [(“Vendor”)] shall have the right to monitor
Customer Web Site and may in its sole discretion remove or
delete any Content. [(“Vendor”)] shall have the right to view
and disclose any Content as permitted by law. Notwithstanding
any [(“Vendor”)] rights or provisions hereunder, [(“Vendor”)]
shall have neither any obligation nor duty to prohibit, monitor,
remove, delete, view or disclose any conduct or Content.
Section 5.04 -- Pornography: Customer hereby acknowledges that
using the [(“Vendor”)] System to obtain, store, access,
distribute, transmit, display or view pornographic materials may
violate applicable laws, including but not limited to, the Child
Pornography Statute under 18 U.S.C. 2252, et seq. and Chapter
847 of [State Statute] Statutes [Computer Pornography and Child
Exploitation Prevention Act of 1986], and may subject Customer
to civil and criminal liability. The [(“Vendor”)] System shall
not be used in violation of, or to encourage or aid the
violation of, any such laws.
Section 5.05 – Chain Letter: Customer shall ensure that chain
letters and pyramid schemes are not transmitted, stored or
organized using the [(“Vendor”)] System.
Section 5.06 -- Gambling: Customer shall not use the
[(“Vendor”)] System to provide gambling services or to obtain,
store, access, distribute, transmit, display or view gambling
information. Customer may violate applicable laws and may
subject Customer to civil and criminal liability. The
[(“Vendor”)] System shall not be used in violation of, or to
encourage or aid the violation of, any such laws.
Section 5.07 -- Spamming: Customer shall not spam or send
numerous or bulk email messages. The [(“Vendor”)] reserves the
right to determine, in its sole and absolute discretion the
limits of email allowed to be sent using the [(“Vendor”)]
System.
ARTICLE VI: INTELLECTUAL PROPERTY
Section 6.01 -- Proprietary Information: Title to Proprietary
Information, including all ownership rights to patents,
copyrights, trademarks and trade secrets in connection therewith
shall be the exclusive property of [(“Vendor”)].
Section 6.02 -- Trade Secrets: Customer hereby acknowledges and
agrees that the Proprietary Information (excluding Coding
lawfully accessible through the Internet) derives independent
economic value (actual or potential) from not being generally
known to other persons who can obtain economic value from its
disclosure or use and not being readily ascertainable by proper
means by other persons who can obtain economic value from its
disclosure or use; is the subject of reasonable efforts by
[(“Vendor”)] under the circumstances to maintain its secrecy;
and is a trade secret as defined under Chapter 688 of the [State
Statute] Statutes [§688.002(4)] and the Restatements.
Section 6.03 -- Customer Materials: [(“Vendor”)] shall not have
or accrue any title or ownership interests to the Customer
Materials including any ownership rights to patents, copyrights
and trade secrets therein. Customer hereby grants [(“Vendor”)] a
non-exclusive, irrevocable, perpetual, world-wide, transferable
and unrestricted license to (i) use, reproduce, display, perform
and modify the Customer Materials; (ii) to integrate the
Customer Materials with the Proprietary Information; (iii)
prepare derivative works based on Customer Materials; (iv)
distribute copies of Customer materials to Consultants; and (v)
grant Consultants sublicenses to use, reproduce, display,
perform, modify and prepare derivative works for purposes of
developing, maintaining and hosting the Customer Web Pages.
Section 6.04 -- Confidentiality: Customer shall maintain
Confidential Information in strict confidence. Customer shall
not disclose Confidential Information except to Authorized
Persons. Customer shall not copy or use Confidential Information
except as otherwise permitted under the Agreement. The
Proprietary Information (excluding Coding lawfully accessible
through the Internet) shall be deemed Confidential Information
of [(“Vendor”)].
Section 6.05 -- Link: Customer hereby acknowledges and agrees
that [(“Vendor”)] shall have the right to use the name of
Customer, including the Customer Web Site, for reference as a
customer of [(“Vendor”)] services for referral and marketing
purposes. Customer hereby authorizes [(“Vendor”)] to maintain on
the [(“Vendor”)] Web Site a Link to the Customer Web Site.
Section 6.06 -- [(“Vendor”)] Legend: Customer hereby authorizes
[(“Vendor”)] to include the [(“Vendor”)] Legend on the Customer
Web Site. Notwithstanding the foregoing, [(“Vendor”)] shall have
no duty or obligation to include the [(“Vendor”)] Legend on the
Customer Web Site.
Section 6.07 -- Reverse Engineering: Customer shall not reverse
engineer the Software and shall not allow the Software to be
reversed engineered.
Section 6.08 -- Continuation: The terms and provisions of this
Article VI shall survive termination and cancellation of this
Agreement.
ARTICLE VII: TERMINATION
Section 7.01 -- Termination Limitations: This Agreement shall
only be terminated as provided under this Article VII.
Section 7.02 -- Term and Renewal: This Agreement shall be valid
for the Term. The Term shall renew for one year on each
anniversary of the Hosting Date unless terminated at least
thirty days in advance of such anniversary by written notice
from one party to the other party to the Agreement.
Section 7.03 -- Termination: Either party may terminate this
Agreement for convenience upon providing thirty days Termination
Notice to the other party.
Section 7.04 -- Cancellation: If a party violates its
obligations under this Agreement, the other party may cancel the
Agreement by sending Cancellation Notice, describing the
noncompliance to the non-complying party. Upon receiving
Cancellation Notice, the non-complying party shall have thirty
days from the date of such notice to cure any such
noncompliance. If such noncompliance is not cured within the
required thirty day period, the party providing Cancellation
Notice shall have the right to cancel this Agreement as of the
thirty-first day after the date of the Cancellation Notice.
Section 7.05 -- Nonpayment: Notwithstanding Section 7.04,
Customer failure to pay an invoice when due shall be sufficient
cause for cancellation of this Agreement by [(“Vendor”)] as
provided hereunder. [(“Vendor”)] shall exercise such right of
cancellation by submitting Nonpayment Notice to Customer. Upon
receipt of Nonpayment Notice, Customer shall have ten days to
cure the nonpayment. If Customer fails to cure the nonpayment
within the required ten day period, [(“Vendor”)] shall have the
right to cancel the Agreement as of the eleventh day after the
date of the Nonpayment Notice.
Section 7.06 -- Refund: Upon termination or cancellation of this
Agreement by Customer, [(“Vendor”)] shall be entitled to retain
all payments rendered to [(“Vendor”)] under this Agreement for
the Services or in anticipation of the Services. Termination or
cancellation of this Agreement shall not terminate or cancel any
payment obligation of Customer.
Section 7.07 -- Shut-Off: Customer hereby acknowledges and
agrees that [(“Vendor”)] shall have the right to deactivate and
remove a component of the Customer Web Site or the entire
Customer Web Site from the [(“Vendor”)] System, including
(without limitation) the Login, upon the occurrence of an Event.
Section 7.08 -- Continuation: The terms and provisions of this
Article VII shall survive termination and cancellation of this
Agreement.
ARTICLE VIII: WARRANTY
Section 8.01 -- Services Warranty: The Services to be provided
by [(“Vendor”)] under this Agreement shall be performed on a
best efforts basis and shall conform to the standards generally
observed in the industry for similar services.
Section 8.02 -- Express Warranties: Customer hereby acknowledges
and agrees that [(“Vendor”)] (including officers, Associates,
agents and directors of [(“Vendor”)]) has not made or granted
any express warranties concerning the Services except for the
service warranty in Section 8.01.
SECTION 8.03 -- DISCLAIMER: THE WARRANTY SET FORTH IN SECTION
8.01 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
[(“VENDOR”)] (INCLUDING OFFICERS, DIRECTORS, ASSOCIATES AND
AGENTS OF [(“VENDOR”)]) HEREBY DISCLAIMS AND CUSTOMER HEREBY
WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND
INCLUDING ANY WARRANTY THAT THE CUSTOMER WEB SITE COMPLIES WITH
ANY APPLICABLE LAWS OR REGULATIONS. [(“VENDOR”)] (INCLUDING
OFFICERS, DIRECTORS, ASSOCIATES AND AGENTS OF [(“Vendor”)]) DOES
NOT WARRANT AND CUSTOMER HEREBY WAIVES THAT USE OF OR ACCESS TO
THE [(“VENDOR”)] SYSTEM, BY CUSTOMER, USERS, OR ANY THIRD PARTY,
WILL BE UNINTERRUPTED OR ERROR FREE. [(“VENDOR”)] DOES NOT MAKE
ANY WARRANTY AND CUSTOMER HEREBY WAIVES ANY WARRANTIES THAT THE
[(“VENDOR”)] DATA WILL NOT BE LOST OR CORRUPTED. [(“VENDOR”)]
DOES NOT MAKE ANY WARRANTY AND CUSTOMER HEREBY WAIVES ANY AND
ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE
[(“VENDOR”)] SYSTEM OR AS TO THE ACCURACY OR RELIABILITY OF THE
CONTENT. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE
INTERNET OR THE CUSTOMER WEB SITE SHALL BE AT THE SOLE AND
EXCLUSIVE RISK OF CUSTOMER AND SUBJECT TO RESTRICTIONS, TERM AND
CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND
CODES OF CONDUCT GOVERNING THE INTERNET AND THE CUSTOMER WEB
SITE.
Section 8.04 -- Access: Customer hereby acknowledges and agrees
that access to the Customer Web Site may be affected by local
market network telecommunication activity, capacity and
compatibility with third party communication equipment, Internet
access software and browser. [(“Vendor”)] hereby disclaims and
Customer hereby waives any and all [(“Vendor”)] responsibility
for any Defect, in connection with local market network
telecommunication activity, capacity and compatibility with
third party communication equipment, Internet access software
and browser.
Section 8.05 -- Down-time: Customer recognizes that the
[(“Vendor”)] System may be inaccessible during down-time for
inoperability, repair, modification or maintenance of the
[(“Vendor”)] System. [(“Vendor”)] (including officers, agents,
directors, and Associates of [(“Vendor”)]) shall not be liable
for any loss or expense incurred directly or indirectly by
Customer or Users due to such inaccessibility.
Section 8.06 -- Access Denial: [(“Vendor”)] shall have the right
to deny, refuse, interrupt, terminate or prevent access by any
User to the [(“Vendor”)] System for any reasonable purpose as
determined by [(“Vendor”)]. [(“Vendor”)] shall have no duty or
obligation to deny, refuse, interrupt, terminate or prevent
access by any User to the [(“Vendor”)] System.
Section 8.07 -- Employee Soliciting: Customer shall not induce
or solicit (directly or indirectly) any Associate to leave the
employment of [(“Vendor”)] or engage the services of an
Associate without the prior written consent of [(“Vendor”)].
Section 8.08 -- Rejection: Customer hereby acknowledges and
agrees that the use or registration of the Customer Domain Name
may be rejected by the Registration Company or opposed by a
third party. [(“Vendor”)] shall not be responsible for any such
rejection or challenge.
Section 8.09 -- Services: The personnel assigned to perform the
Services shall be determined solely by [(“Vendor”)]. The
Services shall be performed at the office facilities of
[(“Vendor”)], unless otherwise required (as determined
exclusively by [(“Vendor”)].
Section 8.10 -- Continuation: The terms and conditions of this
Article VIII shall survive termination and cancellation of this
Agreement.
ARTICLE IX: INDEMNIFICATION
Section 9.01 -- Limitation of Damages: [(“Vendor”)] shall not be
liable to Customer or a third party under this Agreement or in
connection with the use, performance and operation of the
Customer Web Site; the Content, the Services and any loss of
Customer or third-party data or information for any lost
profits, consequential, exemplary, incidental or punitive
damages, regardless of the form of action, whether in contract
or in tort, including negligence, regardless of whether
[(“Vendor”)] has been advised of the possibility of such damages
in advance or whether such damages are reasonably foreseeable.
Section 9.02 -- Limitation of Liability: The liability of
[(“Vendor”)] for any reason and for any cause of action
whatsoever in connection with this Agreement, the Customer Web
Site, the Content and the Services, regardless of the form of
action, whether in contract or in tort, including negligence,
shall be limited to the amount of money received by [(“Vendor”)]
from Customer pursuant to this Agreement in the Term during
which such damages or liability arose.
Section 9.03 -- Infringement: Customer shall release, defend,
indemnify and hold harmless [(“Vendor”)] (including officers,
directors, agents and Associates of [(“Vendor”)] from and
against any and all claims, damages, liability, expenses, fees,
costs and attorney and paralegal fees arising in connection with
any third party claims of infringement or violation of any
ownership rights to patents, copyrights, trademarks or trade
secrets in connection with any use of Content and Links used in
the Customer Web Page by [(“Vendor”)]. Customer shall defend and
settle at its sole expense all suits or proceeding arising in
connection with any such third party claim. Customer shall not
enter into any agreement which impairs the right of [(“Vendor”)]
to use the Content and Links in accordance with this Agreement.
In all events, [(“Vendor”)] shall have the right to participate
in the defense of any such suit or proceeding through counsel of
its own choosing. If use of the Content or Links is disrupted as
a result of a third party claim, [(“Vendor”)] shall have the
right to remove Content or the Links as provided under Section
7.07. The foregoing remedy shall be non-exclusive and in
addition to any other legal or equitable remedies [(“Vendor”)]
may have or accrue.
Section 9.04 -- Indemnification: Customer shall defend.
indemnify and hold harmless [(“Vendor”)] and its officers,
directors, employees and agents, from and against any and all
losses, costs, claims, suits, obligations, demands, damages,
liabilities, expenses and reasonable attorney and paralegal fees
on account thereof resulting from (i) any claims related to
Customer Services, performance of Customer Web Site and
[(“Vendor”)] System, use of the Customer Web Site and
[(“Vendor”)] System by Customer or Users (including, without
limitation, any claim for breach of warranty, libel, slander,
invasion of privacy, false advertising, claims of copyright
infringement, patent infringement, trademark infringement or
dilution, misappropriation of trade secrets, loss of data and
information, defamation, harassment, or fraud); (ii) injuries,
including death to persons or damage to property, theft,
emotional distress, which arise out of or result from the acts
(or failure to act) of Customer or Users using the Customer Web
Site and [(“Vendor”)] System and any breach by Customer of the
obligations of Customer under this Agreement; (iii) any claims
related to Content and data or information supplied by Customer
to [(“Vendor”)] in connection with the Customer Web Site,
including use of Customer Domain Name and (iv) the fault or
negligence of Customer including Customer intentional wrongful
acts. This Section 9.04 shall survive termination and
cancellation of this Agreement.
Section 9.05 -- Customer Indemnification: If a third party
receives a judgment from a court of competent jurisdiction
upholding claims for violations of trade secrets, proprietary
information, trademark, copyright or any patent rights resulting
from use of the Proprietary Information by Customer in a dispute
in which [(“Vendor”)] is a party, [(“Vendor”)] shall perform one
or more of the following actions (as determined by [(“Vendor”)])
within one year of the date judgment in favor of such third
party’s claim is rendered by a court of competent jurisdiction:
(1) Replacement: Replace the Proprietary Information with a
non-infringing product of substantially equivalent functional
and performance capability;
(2) Modification: Modify the Proprietary Information to avoid
the infringement without substantially eliminating the
functional and performance capabilities of the Proprietary
Information;
(3) Obtain License: Obtain a license for use of the Proprietary
Information from the third party claiming infringement for use
of the Proprietary Information.
The remedies set forth herein shall be the sole and exclusive
remedies of Customer under this Agreement for any and all such
claims of infringement.
Section 9.06 -- Force Majeure: [(“Vendor”)] shall not be liable
for any failure to perform its obligations under this Agreement
or any failure of the Customer Web Site or the [(“Vendor”)]
System because of circumstances beyond the control of
[(“Vendor”)], which such circumstances shall include (without
limitation) natural disaster, terrorism, riot, sabotage, labor
disputes, war, any acts or omissions of any government or
governmental authority, declarations of governments, laws, court
orders, rejection of Domain Name by Registration Company,
transportation delays, power failure, computer failure, failure
of Customer computer system, [(“Vendor”)] System downtime for
routine maintenance, network problems, telecommunications
failure, failure of Customer to cooperate with the reasonable
requests of [(“Vendor”)], misuse of Customer Web Site or the
[(“Vendor”)] System by Customer or a third party and breach of
this Agreement by Customer.
ARTICLE X: MISCELLANEOUS
Section 10.01 -- Notice: Notices shall be in writing and shall
be deemed delivered when delivered by Certified or Registered
Mail – Return Receipt Requested or by hand to the address set
forth below for [(“Vendor”)] and to the address set forth on the
signature page of this Agreement for Customer. Notices shall be
deemed given on the date of receipt - as evidenced in the case
of Certified or Registered Mail by Return Receipt.
[(“Vendor”)]:
[Palmer Products, Inc.]
[13 High Mesa Place]
[Richardson, TX 75080
Section 10.02 -- Assignments: All assignments of rights under
this Agreement by Customer without the prior written consent of
[(“Vendor”)] shall be void.
Section 10.03 -- Entire Agreement: This Agreement contains the
entire understanding of the parties and supersedes previous
verbal and written Agreements between the parties concerning the
subject matter of this Agreement.
Section 10.04 -- Equitable Remedies: The parties hereby
acknowledge that damages at law may be an inadequate remedy to
[(“Vendor”)]. Therefore, [(“Vendor”)] shall have the right of
specific performance, injunction or other equitable remedy in
the event of a breach of this Agreement by Customer.
Section 10.05 -- Amendment and Modifications: Alterations,
modifications or amendments of a provisions of this Agreement
shall not be binding unless such alterations, modifications or
amendments are in writing and signed by authorized
representatives of [(“Vendor”)] and Customer.
Section 10.06 -- Severability: If a provision of this Agreement
or a portion thereof is rendered invalid, void, unlawful, or
unenforceable, the remaining provisions or portions thereof
shall remain in full force and effect.
Section 10.07 -- Captions: The headings and captions of this
Agreement are inserted for convenience of reference and do not
define, limit or describe the scope or intent of this Agreement
or any particular section, paragraph, or provision.
Section 10.08 -- Counterparts: This Agreement may be executed in
multiple counterparts, each of which shall be an original, but
which together shall constitute one and the same instrument.
Section 10.09 -- Governing Law: This Agreement shall be governed
by the laws of the State of [Texas], without regard to any rules
of conflict or choice of laws which require the application of
laws of another jurisdiction, and venue shall be proper in
[Collin County, Richardson Texas].
Section 10.10 -- Pronouns/Gender: Pronouns and nouns shall refer
to the masculine, feminine, neuter, singular or plural as the
context shall require.
Section 10.11 -- Waiver: Waiver of breach of this Agreement
shall not constitute waiver of another breach. Failing to
enforce a provision of this Agreement shall not constitute a
waiver or create an estoppel from enforcing such provision. Any
waiver of a provision of this Agreement shall not be binding
unless such waiver is in writing and signed by the party waiving
such provision.
Section 10.12 -- Relationship of the Parties: Nothing herein
shall be construed as creating a partnership relationship,
employment relationship, or agency relationship between the
parties, or as authorizing either party to act as agent for the
other. Each party maintains its separate identity.
Section 10.13 -- Arbitration: Any controversy or claim arising
out of or relating to this Agreement, or breach thereof, shall
be settled by arbitration in accordance with the Arbitration
Rules of MyTechnologyLawyer.com in [Richardson, TX]. Judgment
upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof. Qualified Arbitrators shall
be selected by the parties in accordance with the Arbitration
Rules of MyTechnologyLawyer.com. Each party shall have the right
of discovery as set forth in the Federal Rules of Civil
Procedure. The Arbitration shall be administered by
MyTechnologyLawyer.com.
Section 10.14 -- Assurances: Each party hereby represents and
warrants that all representations, warranties, recitals,
statements and information provided to each other under this
Agreement are true, correct and accurate to the best of their
knowledge.
Section 10.15 -- Litigation Expense: In the event of litigation
or arbitration arising out of this Agreement, each party shall
pay its own costs and expenses of litigation or arbitration
(excluding fees and expenses of arbitrators and administrative
fees and expenses of arbitration).
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