YOUR AGREEMENT: By using the Services, you agree to all terms and conditions of this Agreement; ICANN Policies, as published from time to time at icann.org; any rules, agreements, or policies of any registry of a relevant top-level domain name; the UDRP (defined below); the URS (defined below); and any rules, policies, or agreements of any relevant government. You explicitly agree that violation or refusal to comply with any ICANN policy is a violation of this Agreement and may result in immediate termination of this Agreement.
The Provider will register (if needed) and bill the Client for a suitable domain name and possible variations of the domain name (with Client approval) for the project website. The domain name and any variations will remain the sole property of the Client both during the term of this Agreement, upon termination of this Agreement and thereafter.
The Client will retain full ownership of and all rights to any domain name registered, and is responsible for renewing and updating the domain name. The Provider will not obtain any rights to the domain name or variations over time, nor upon the termination of this Agreement or thereafter.
The client’s website will be hosted on an annual basis by the Provider or by a third-party hosting company engaged by the Provider. Provider, at its option, may obtain website hosting services from a third-party provider and maintain such hosting service throughout the term of the Agreement. Provider will be responsible for the cost of such website hosting services.
The Provider will not be liable for hosting errors caused by the hosting company or downtime experienced by the hosting company. Where a third-party hosting company is used the company may schedule regular maintenance of the server or servers and this may affect the hosting and availability of the Project website. Such maintenance is necessary for the smooth running of the web site. Where possible such maintenance will be carried out when the website is not busy.
It is your responsibility to keep your own records and to maintain your own reminders regarding when your domain name registration or other Services are set to expire. With respect to website hosting services, we will email a renewal notification approximately one (1) month and approximately one (1) week prior to each such hosting plan’s expiration.
The website will be operational and available twenty-four hours per day, seven days per week, three hundred sixty-five days per year, excluding down time due to scheduled and emergency maintenance and other outages, and will utilize software and equipment deemed appropriate by Provider to ensure the security of the site.
Client hereby grants to Provider, a non-exclusive license to use any of Client’s information to the extent reasonably necessary to perform Provider’s obligations under this Agreement. Provider will retain all ownership in and to any of the Intellectual Property (as defined herein) associated with any materials or information provided by Provider in connection with the website.
Client shall own the Intellectual Property rights in and to the project website, and any other software and the website. All rights in the data and information stored by the Client (“Client Property”) and used by Provider in connection with the registration and hosting services shall remain the sole and exclusive property of Client, and Provider shall have a non-exclusive, license to use any of Client’s information to the extent reasonably necessary to perform Provider’s obligations under the Agreement.
We are not responsible to determine whether the domain name(s) you select, or the use you or others make of the domain name(s), or other use of the Services, infringes legal rights of others. It is your responsibility to know whether or not the domain name(s) you select or use or allow others to use infringe legal rights of others.
This Website Maintenance Agreement (“Agreement”) is hereby entered into between you, your employees and agents (collectively “Client”) and applies to the purchase of all monthly and yearly website maintenance and services (hereinafter collectively referred to as “Maintenance Services”) ordered by Client.
This Agreement shall be effective as of the time Client signs up for Maintenance Services. This Agreement may be terminated by either party upon 30 day written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by Swatch Junkie Digital (i) immediately if Client fails to pay any fees hereunder; or (ii) if Client fails to cooperate with Swatch Junkie Digital or hinders Swatch Junkie Digital’s ability to perform the Maintenance Services hereunder.
Swatch Junkie Digital agrees to provide Client with Maintenance, Support and/or Hosting services as described in this Agreement.
*These are tasks that are done throughout the month and will be detailed in your monthly report. Some items, such as updates, only occur when necessary and when we know the update is a stable version and it is okay to proceed.
Client agrees to pay Swatch Junkie Digital any and all fee(s) as billed in accordance with this Agreement. The fee(s) must be received prior to the start of any Maintenance Services. THE Client FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY Client, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE Client FURTHER AGREES TO PAY UPON CANCELLATION ANY OTHER AMOUNTS DUE TO SWATCH JUNKIE DIGITAL FOR WORK PROVIDED AT CLIENT’S REQUEST ABOVE AND BEYOND THE MONTHLY ALLOTTED TIME OF MONTHLY AGREEMENT. SWATCH JUNKIE DIGITAL IS HEREBY AUTHORIZED TO CHARGE CLIENT’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CLIENT TO SWATCH JUNKIE DIGITAL.
For the purposes of providing these services, Client agrees:
Client understands, acknowledges and agrees that:
Client makes the following representations and warranties for the benefit of Swatch Junkie Digital:
Indemnification – Client shall indemnify and hold harmless Swatch Junkie Creative LLC dba Swatch Junkie Digital (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Swatch Junkie Digital as a result of any claim, judgment, or adjudication against Swatch Junkie Digital related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Client to Swatch Junkie Digital (the “Client Content”), or (b) a claim that Swatch Junkie Digital’s use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Swatch Junkie Digital must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defense and all related negotiations.
Disclaimer of All Other Warranties – Swatch Junkie Digital DOES NOT WARRANT THAT THE MAINTENANCE SERVICES WILL MEET THE CLIENT’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CLIENT. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, SWATCH JUNKIE DESIGNS PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
Limited Liability – IN NO EVENT SHALL SWATCH JUNKIE DIGITAL BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THERE SHALL BE NO REFUNDS. SWATCH JUNKIE DIGITAL MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
Confidentiality – The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Swatch Junkie Digital and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
Force Majeure – Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
Relationship of Parties – Swatch Junkie Digital, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Client does not undertake by this Agreement, or otherwise, to perform any obligation of Swatch Junkie Digital, whether by regulation or contract. In no way is Swatch Junkie Digital to be construed as the agent or to be acting as the agent of Client in any respect, any other provisions of this Agreement notwithstanding.
Notice and Payment – Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party, mailed by certified, registered or Express mail, return receipt requested or by Federal Express. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
Jurisdiction/Disputes – This Agreement shall be governed in accordance with the laws of the State of Washington. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Washington including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
Agreement Binding on Successors – The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Assignability – Client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Swatch Junkie Digital. Swatch Junkie Digital reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
Waiver – No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
Severability – If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
No Inference Against Author – No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
Disputes – Client and Swatch Junkie Digital agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in King County, Washington and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Washington sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Washington or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
Read and Understood – By purchasing a Maintenance, Support or Hosting plan, Client acknowledges that they have read and understand this Agreement and agree to be bound by its terms and conditions.