WEBSITE HOSTING AGREEMENT

THIS WEBSITE DEVELOPMENT AND HOSTING AGREEMENT (the “Agreement”) is made by and between Don Cullen (“Provider”), and the customer agreeing to this document by purchasing hosting service (“Customer”).

1. DEFINITIONS.

1.1              “Domain Name” means the domain name specified for the Website by Customer from time to time.  The initial Domain Name is specified in Exhibit A.

1.2              “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).

1.3              “Specifications” means Customer’s requirements set forth in Exhibit A, as amended or supplemented in accordance with this Agreement.

1.4              “Website” means the user interface, functionality and Content made available on pages under the Domain Name.

 

2. WEB HOSTING.

2.1              Services.  Provider shall provide the following web hosting services:

(a)               Domain Name.  If requested by Customer, Provider at its expense shall cooperate with Customer in registering the Domain Name with InterNIC.  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 be listed as the administrative, technical and billing contact.

(b)                Site Backup.   Provider shall maintain a complete and current copy of the Website on a weekly basis for a maximum of a month’s period. Backup copies older than a month will be purged.  If the Customer desires to have older backups kept, the Customer shall communicate this to the Provider, and acknowledges that this will count to the hard drive space limitation their account.  Upon Customer request, the Provider shall restore from backup.  The Customer acknowledges that the Provider however takes no responsibility for the website when doing so.

(c)                 Standards.  Provider’s hosting standards shall conform to the following:

(i)                 Availability of Web Site.  The Website shall be publicly available to users 24 hours and seven days in a week; and there will be no period of interruption in public accessibility to the Website.  If documented interruption occurs that exceeds 3 continuous hours in any time period, 50% of hosting fees for that month will be refunded upon Customer request.

(ii)               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.

(iii)             Remedies.  In addition to other applicable remedies, Customer may immediately terminate this Agreement at any time for any reason.  The Provider may immediately terminate this agreement at the Provider’s discretion with 30 days advance notice.

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-sub-licensable, 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-sub-licensable, 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. PAYMENTS.

3.1              Fees.  Except as otherwise specified in Exhibit A, Provider shall invoice all fees monthly, and payment is due within 24 hours upon 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.

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, and material and supply costs, within 30 days after Customer’s receipt of expense statements including appropriate receipts or other evidence of the expense.

4. TERM AND TERMINATION.

4.1              Term.  The initial term of this Agreement shall be as specified in Exhibit A.  Thereafter, this Agreement shall continue until terminated.

4.2              Termination for Cause.  Customer may immediately terminate this Agreement at any time for any reason.  The Provider may immediately terminate this agreement at the Provider’s discretion with 30 days advance notice.

4.3              Termination During Website Hosting.  In the event of expiration or termination of this Agreement while Provider is providing Web hosting services pursuant to Section 4, the Customer shall have a 30 day period to have all content (including but not limited to website, emails, DNS records, databases, etc) moved off the server to any destination of the Customer’s choosing.  The Customer shall be the one to move all of the content, unless they choose to arrange for someone else to handle the transfer.  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 30 days thereafter, maintain the Website’s URL and, at such URL, provide 1 page (including a hypertext link) 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 getting the domain migrated to a new registrar (scope of migration is outlined in Exhibit A).

4.4              Effect of Termination.  Upon the termination of this Agreement for any reason, subject to Provider’s obligations pursuant to Section 4.3, 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.

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.
7. OWNERSHIP. 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. LIMITATIONS ON LIABILITY.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.
9. GENERAL PROVISIONS.

9.1          Governing Law.  This Agreement will be governed and construed in accordance with the laws of the State of Texas without giving effect to principles of conflict of laws.  Both parties agree to submit to jurisdiction in Texas and further agree that any cause of action arising under this Agreement may be brought in a court in Travis County, Texas.

9.2          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.

9.3          Compliance With Laws.  Provider shall ensure that its web hosting services will comply with all applicable international, national and local laws and regulations.

9.4          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.

9.5          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.

9.6          Assignment and Subcontracting.  This Agreement and Provider’s rights, duties and obligations hereunder are personal to Provider and Provider may not assign its rights, delegate its duties or subcontract its rights without Customer’s prior written consent in Customer’s sole discretion.  The sale, transfer or encumbrance of 25% or more of the ownership interest in, or voting stock of, Provider or the merger of Provider into or with any other third party or entity, shall be deemed an assignment for purposes of this Section 9.6.  Customer may assign, transfer, delegate or grant all or any part of its rights pursuant to this Agreement to any person or entity.  Any assignment, delegation or subcontract in violation of this Section 9.6 shall be void and of no effect.  The parties’ rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns.

9.7          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.

9.8          Notice.  Any notices required or permitted hereunder shall be given to the appropriate party such other address as the party shall specify in writing at time of execution of this agreement.

9.9          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.

9.10      Injunctive Relief.  Both Customer and Provider hereby waives any right to injunctive relief and/or rescission and agrees that its sole and exclusive remedy for any breach or alleged breach, termination or cancellation of this Agreement by Customer or Provider, shall be termination of services and financial payments for said services.

9.11      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, with the payment of the first invoice, the Customer affirms being bound to this agreement, and with acceptance of the first payment by the Customer, the Provider affirms being bound to this agreement.  With both parties being bound to this agreement, this agreement is considered as having been executed as of the date of the acceptance of the payment by the Customer by the Customer

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EXHIBIT A

Services and Fees

WEBSITE

The Website shall not include any Provider Tools.  Management is defined as the Provider doing their best to keep the operating system on the server up to date and to ensure SSL certifications are current and graded at A+ as rated by SSL Labs (https://www.ssllabs.com/).

Management by the provider also extends to maintenance of WordPress, providing certain conditions are met as outlined below.

WordPress

If the Customer is running WordPress, any tools as part of the web hosting installed are as a courtesy and are also there for security reasons.

For managed accounts, management of WordPress is defined as the Provider ensuring that WordPress Core files are up to date, the Provider ensuring that all themes/plugins are up to date (providing the Customer has provisioned the Provider with needed licenses (if any are needed) to keep those up to date.  If a license is required for maintenance of a theme/plugin and the Customer fails to provide the licenses within 30 days of last update of the theme/plugin, the Customer understands that the Provider is waived of responsibility for maintenance of said theme/plugin. If the Customer provides license after a theme/plugin is more than one major version out of date, fees of $120 per hour will be assessed to bring the theme/plugin current.  The Provider can waive fees at the Provider’s sole discretion.

Mandatory plugins include:

• Sucuri Security
• WP Activity Log

If the Customer modifies or removes either of those two plugins, the Customer accepts that the Provider will terminate maintenance of WordPress immediately, leaving responsibility of maintenance of WordPress to the Customer.  If the Customer wants the Provider to resume maintenance of WordPress, it will involve a Provider fee of $120 per hour to bring the account back within the minimum requirements of a Provider-managed WordPress instance.

If the Customer deactivates automatic updates of WordPress core, or themes, or plugins, or any combination of the three, and the version of any of those falls more than one major version behind, the Provider will terminate maintenance of WordPress immediately, leaving responsibility of maintenance of WordPress to the Customer.  If the Customer wants the Provider to resume maintenance of WordPress, it will involve a Provider fee of $120 per hour to bring the account back within the minimum requirements of a Provider-managed WordPress instance.

The Provider can waive fees to bring WordPress back to current at the Provider’s sole discretion.

Unmanaged Hosting

If the Customer prefers a non-managed account, this means the monthly cost of having an unmanaged account will be the same as the managed account. The Customer further acknowledges that the Provider waives all responsibility for unmanaged hosting, and that support provided by the Provider for unmanaged hosting is only as a courtesy. The Customer will be completely responsible for maintaining the operating system.  If work is requested by the Customer for maintenance, changes to the operating system, and so forth, the work will be billed at $120 per hour. The Provider can waive fees at the Provider’s sole discretion.

 

FEES

* Web development support fee: $120 per hour, web development support however is solely at the Provider’s discretion and the Provider is not obligated to provide support. If there is major web development work to be done, a separate contract will be required to be completed.

* Anything that will incur a hourly fee will not be billed to the client without prior written consent from the Customer. Any work that will incur a hourly fee also will not occur until the Provider and the Customer have come to a mutual agreement.

* Monthly web-hosting fee: fees are billed on a monthly basis depending on the plan selected by the customer, which are:

• Basic Plan: $20
• Boost Plan: $30
• Business Plan: $40
• Custom Hosting: $50 and up

Domains

The provider is a domain reseller.  Domains are purchased via Gandi and will be re-billed to the Customer at the same rate as assessed by Gandi with an additional annual $10 surcharge to cover cost of maintenance and support for the domain.

If the Customer wants to move the domain to a different registrar (including using their own account at Gandi, as opposed to using the Provider’s), the Customer is completely responsible for the domain migration.  The only thing the Provider is obligated to do is to unlock the domain so the Customer is able to work with the alternate registrar to get the domain migrated.  If the Customer wants the Provider to undertake the migration to the alternate registrar, the Customer will be billed a flat fee of $120, to be paid up front prior to the Provider starting work on the migration to the alternate registrar.

If the Customer wants to move their domain from an alternate registrar to the Provider’s managed domain account, standard domain fees apply as if the domain was a new domain.  The Customer will however need to work with the alternate registrar to ensure the domain is unlocked and migrated to the Provider. The Customer will also need to ensure that all DNS records are also transferred.  If the Customer wants the Provider to undertake the migration away from the alternate registrar to the Provider (including unlocking domain at alternate registrar, transfer of DNS records, verification that email isn’t broken during transfer), the Customer will be billed a flat fee of $120, to be paid up front prior to the Provider starting work on the migration.

 

TERM

The Term is defined as being from the Effective Date of service until the end of month, to be recurring from the first of each month until the end of the month, until either the Customer or Provider terminates the Agreement.