TERMS OF SERVICE WITH HOST TARGET, LLC
The following are the terms and conditions for use of the Services (the “Terms”), along with any amendments thereto and any operating rules or policies that may be published from time to time by Host Target, LLC. You agree that you have read and understand, and have the capacity and authority to accept, agree to and be bound by these Terms.
The Company is in the business of providing website design services and has an extensive experience in this industry;
In accordance with the terms and conditions of the present Agreement, the Client wishes to (i) engage the Company so that the latter designs/develops a website (the “Website”) in accordance with the above Service Order, and (ii) be granted an exclusive license of the right to use the Website for the duration of the present Agreement.
The Parties wish to agree to the fact that the Website hosting services will be provided to the Client by HostGator, US Inc. (“HostGator”) via the intermediation of the Company. The Client wishes to benefit from such Website hosting services (free of charge) for the duration of the present Agreement.
The Website design services and the Website hosting services shall be together hereinafter referred as the “Services”.
The Client wishes to provide the Company with the Client’s information (including, but not limited to, Client’s company name, company phone number, email address and mailing address, name of the Client’s authorized representative, such authorized representative’s credit/debit card number or Client’s business credit/debit card number, as well as CVV code, billing address and phone number associated with any such credit/debit card number, hereinafter collectively referred to as “Client’s Information”) in order for the Company to automatically bill the Client for Services provided hereunder in accordance with the terms and conditions of the present Agreement.
The Company wishes to make available to the Client its team of developers/coders (the “Team”) in charge of developing/designing the Website. The Team will be composed of (i) full-time and/or part-time web developers (hereinafter referred to as “Team Member(s)”).
NOW THEREFORE, in consideration of the covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the following:
ENGAGEMENT & PURPOSE OF THE AGREEMENT
The Client hereby engages the Company so that the Company provides the Client with the Services in accordance with the terms and conditions of the Agreement.
REPRESENTATIONS AND WARRANTIES OF THE CLIENT’S AUTHORIZED REPRESENTATIVE
The Client’s authorized representative represents and warrants that he or she (i) is at least 18 years of age, and (ii) has the right, power and authority to execute the present Agreement on behalf of the Client.
COMPENSATION AND PAYMENT TERMS
In consideration of the Services to be performed by the Company hereunder as agreed upon between the Parties, the Client shall pay to the Company a service fee (“Service Fee”), in an amount as indicated in your initial consultation with your sales representative, on each due date (as defined below and hereinafter referred to as the “Due Date”).
The “Due Date” shall fall on the same calendar day of every month starting on the Effective Date. Unless otherwise agreed upon by the Parties, all payments/charges made pursuant to this Agreement shall be made in US Dollars (USD).
By providing the Company with the Client’s Information, the Client hereby authorizes the Company to automatically bill the Client for Services provided hereunder for the term of the present Agreement.
All payments made by the Client or assessed against the Client’s credit/debit card, under the present Agreement, are non-refundable. You acknowledge by accepting these terms that you fully understand the service order you are purchasing with the Company.
OBLIGATIONS OF THE COMPANY
The Company understands, acknowledges, agrees and guarantees that during the term of this Agreement, each Team Member shall (i) fully dedicate himself/herself to the performance of the Services, and (ii) comply with the terms and conditions contained in the Agreement.
GRANT OF LICENSE
The Company hereby grants to the Client, and the Client hereby accepts, an exclusive, revocable, worldwide, non-transferable, non-sublicensable, royalty-free license of the right to use the Website for the sole and exclusive purpose of operating the Website.
UPDATES TO THE WEBSITE AT THE CLIENT’S REQUEST
The Company prides itself in providing excellent customer service. That is the spirit of our agreement and the spirit of the Company’s business. To that end, we encourage input from the Client during the design process. The Company shall change, modify or update the Website, at the Client’s request, free of charge within the parameters of their plan, during the term of this Agreement.
TURNAROUND TIMES AND DELAYS
We aim to complete the design of the Website within four (4) weeks as of the Effective Date. In some cases, however, the completion of the Website design may take longer than four (4) weeks, depending on the quantity and nature of edits required by the client. In such a case the Company shall notify the Client of any delays. We aim to complete the development of the Website within three (3) weeks of approval of the design.
Upon the Client’s request, the Company undertakes to update/modify the Website within the turnaround time specified in the Service Order. Any delay or nonperformance of any provision of this Agreement caused by conditions beyond the reasonable control of either Party shall not constitute a breach of this Agreement, provided that the delayed party has taken reasonable measures to notify the other of the delay in writing. The delayed Party’s time for performance shall be deemed to be extended for a period equal to the duration of the conditions beyond its control. Conditions beyond a Party’s reasonable control include, but are not limited to, natural disasters, acts of government, power failure, fire, flood, acts of God, labor disputes, riots, acts of war and epidemics. If, as a result of legislation or a governmental action, any Party or Parties are precluded from receiving any benefit to which they are entitled hereunder, the Parties shall review the provisions of this Agreement so as to try the best possible efforts to restore the Party or Parties to the same relative positions as previously obtained hereunder.
WEBSITE HOSTING SERVICES
The Website hosting services will be provided to the Client by HostGator via intermediation of the Company. The Client will benefit from such Website hosting services free of charge for the duration of the present Agreement. Each account is allotted “unlimited” storage space up to 20GB.
Unless the Client owns a domain name prior to engaging the Company to perform the Services, the Company may undertake to purchase a domain name (“Domain Name”) to the benefit of the Client and for the purpose of performing the Services hereunder. In such a case, the Domain Name shall be sole and exclusive property of the Company. Upon termination of this Agreement by either Party, the Client will have an option of buying out the Domain Name from the Company for the price Company paid for said Domain Name.
To help promote our brand and keep your costs low, we place a small text link in the footer of your website stating that we designed your website. If you do not wish for this to be included on your website, a charge of $5.00 per month will be added to your monthly bill.
MIGRATION OF YOUR PRE-EXISTING WEBSITE AND EMAIL ACCOUNT
When migrating your pre-existing website to our servers (operated by HostGator) so that we could redesign or improve it, you notice temporary changes in the performance of the Website. If you have any current search engine ranking, this may be affected for a short period of time before returning to its original position.
If you have a preexisted email account and are transferring to the Company, we strongly recommend that you download from your current server and save on a hard drive all your emails, or that you mass forward them to your new email account that you are having with us. We can, at your request, migrate your current email account and its content ensuring that no data is lost. All data migrations require a test migration to ensure a successful connection can be made to the external mail server. We, the company, cannot be held liable for lost data during any transition.
ELECTRONIC COMMERCE PLATFORM AND LAWS AFFECTING ELECTRONIC COMMERCE
If you have an Electronic Commerce (E-Commerce) platform, we will charge an additional $25 (USD) per month to manage your platform.
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Client agrees that the Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend the Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client’s exercise of Internet electronic commerce.
CHARGEBACK PREVENTION & BILLING DISPUTES
The Parties hereby acknowledge, understand and agree that chargebacks generally constitute a remedy used by any client/customer to reverse transactions made with credit or debit cards when a fraudulent use has occurred, or when there is a violation/breach by the service provider of any of the provisions of the agreement entered into between any such client/customer and the service provider. Therefore, the Client hereby acknowledges, understands and agrees that by signing/executing any Order Form, the Client authorizes the Company to assess all charges against the Client’s credit/debit card in compliance with the relevant/considered Order Form.
Thus, considering the foregoing, except for reasons of fraudulent use by the Company of the Client’s credit/debit card information or of a material violation/breach by the Company of the present Agreement and of the relevant/considered Order Form, the Client hereby agrees and undertakes not to dispute any charge assessed by the Company against the Client’s credit/debit card. Should the Client have any questions or objections regarding any charge assessed by the Company against the Client’s credit/debit card, the Client shall immediately contact the Company and try to solve/settle this issue in the most amicable and transparent manner possible. The Company shall then provide the Client with good explanations within a reasonable time frame. Should a chargeback be processed bypassing the above method, the Company may pass over the clients details and charged back amount to a credit agency for collection.
WEBSITE CONTENT AND OWNERSHIP
The Company (i) represents and warrants to the Client that any text, graphic, photo, design, trademark or other artwork, used by the Company in order to perform the Services, is solely and exclusively owned by the Company, or that the Company obtained permission from the rightful owner of any such element to use any such element, and (ii) will hold harmless, protect, and defend the Client from any claim or suit arising from the use of any such element furnished by the Company.
The Client (i) represents and warrants to the Company that any element including, but not limited to, any text, graphic, photo, design, trademark, or other artwork furnished by the Client (hereinafter referred to as “Client Content”) to the Company for inclusion in the Website are the sole and exclusive property of the Client, or that the Client obtained permission from the rightful owner of any such element to use any such element, and (ii) will hold harmless, protect, and defend the Company from any claim or suit arising from the use of any such Client Content furnished by the Client.
The Client hereby agrees that any Client Content submitted for publication will not contain anything leading to an abusive or unethical use of the Website. Abusive and unethical content and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming, advocacy of an illegal activity, and any infringement of privacy.
The Client hereby grants to the Company a non-exclusive, irrevocable, worldwide, non-transferable, non-sublicensable, royalty-free license of the right to use the Client Content for the sole and exclusive purpose of performing the website design service under the present Agreement.
Client agrees that a failure to pay fees as agreed will result in termination of the site and no materials will be transferred until late fees are paid in full.
Secondary materials (which are not needed by the Client in order for the Client to be able to run the Website) created by the Company during the Website’s production/creation, including drafts, plans, graphic source files, secondary Website’s code and templates, shall remain the exclusive and sole and exclusive property of the Company.
If either Party terminates this Agreement, upon termination PSD files of the design as they were prepared prior to development of the website may be supplied to the Client for $1000 if the relationship is terminated within the first 12 months of Effective Date, for $500 if the relationship is terminated within 13-24 months of Effective Date, or for $200 if the relationship is terminated after 36 months of Effective Date. Upon termination, the Client’s website will be removed from our servers and subsequently may not be visible on the internet. CreativeHaus will not be held liable for any damages, including, but not limited to, any lost profits, lost savings or other direct, indirect,incidental, special or consequential damages that result from this action being taken.
Rights to photos, graphics, computer programs are specifically not transferred to the Client, and remain the property of their respective owners. The Company reserves the right to display all designs as examples of its work hereunder in its portfolio.
For purposes of this Agreement, “Confidential Information” shall mean all information related to the Client’s or the Company’s businesses (including without limitation all materials, trade secrets, information related to business systems, computer programs, the Website’s source code and all other technical and business information, legal/contractual documentation, financial data, client lists, protocols and proprietary information owned by the Client or by the Company) which the Client or the Company considers to be confidential and/or proprietary or which the Client or the Company has a duty to treat as confidential.
During the term of this Agreement and at all times thereafter, each Party shall (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing any Confidential Information to any third party without obtaining the other Party’s express prior written consent. Each Party shall protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as Each Party protects its own confidential or proprietary information of a similar nature, and with no less than the greater of reasonable care or industry-standard care.
The Parties’ obligations of confidentiality will not apply to any particular information for which each Party can prove, by clear and convincing evidence that (a) it lawfully knew such particular information prior to the other Party’s first disclosure to such Party, or (b) a third party rightfully disclosed to such Party free of any confidentiality obligations, or (c) such particular information through no fault of such Party has become, generally available to the public.
Additionally, each Party will be permitted to disclose Confidential Information to the extent that such disclosure is (i) expressly approved in writing by the other Party, or (ii) required by law or court order, provided that such Party immediately notifies the other Party in writing of such required disclosure and cooperates with such other Party, upon such other Party’s request and at the other Party’s reasonable own expenses, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
Upon each Party’s request and upon any termination/expiration of this Agreement, the other Party will promptly (a) return to the requesting Party or, if so directed by such requesting Party, destroy all tangible embodiments of the Confidential Information, (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to such requesting Party in writing that the other Party has fully complied with the foregoing obligations.
BREACHES AND VIOLATIONS
If either Party breaches/violates any material obligation contained in this Agreement, then the non-breaching Party may provide a written notice of such breach to the breaching Party and if such breach is not cured/remedied within ten (10) days of receipt of the written notice, then the non-breaching Party may terminate this Agreement.
DURATION, EXPIRATION, AND TERMINATION
This Agreement shall come into effect on the Effective Date and shall remain in force until terminated by either Party.
This Agreement may be terminated by the Company with or without notice (i) immediately if Client fails to pay any fees hereunder, or (ii) if the Client is in breach of any material obligation contained in this Agreement and fails to remedy such breach (if such breach can be remedied) within ten (10) days of receipt of a written notice of such breach, or (iii) upon a written notice given to the Client at any time and for any reason. If client fails to pay fees as agreed, or is behind on payment, the website may be removed from our servers and taken down. Furthermore, client accepts that until late fees are paid in full, the website design files will not be delivered or transferred to the client, resulting the company retaining ownership of design.
The Client may terminate this Agreement (i) if the Company is in breach of any material obligation contained in this Agreement and fails to remedy such breach (if such breach can be remedied) within ten (10) days of receipt of a written notice of such breach; or (ii) upon a written notice given to the Company at any time and for any reason, on the understanding that a general 30 day written notice is required.
For any Clients wishing to suspend their website agreement, there are two options. The Client may a) pay a reduced ‘suspension’ monthly fee, equivalent to 50% the normal monthly rate (all activities / hosting are suspended under this arrangement) – or – b) The Client may effectively cancel their account, paying a reactivation fee of 200% the normal monthly rate in order to reinstate the project, thereafter resuming normal monthly payments for ongoing activities, hosting, etc.
In the event that this Agreement is terminated by either Party, any and all fees (owed under the present Agreement) shall become immediately due and payable in full by the Client without prejudice to any other right or remedy of the Company.
Moreover, Upon the date of termination of this Agreement, all legal obligations, rights and duties arising out of this Agreement shall terminate except for the following obligations/provisions: the confidentiality restrictions/obligations contained in the Agreement, the provisions contained in the Agreement relating to ownership of proprietary rights to the Website, the provisions regarding the nature of the contractual relationship between the Parties. Such obligations/provisions shall all remain into force beyond the time and date of the termination of this Agreement.
ASSIGNMENT AND SUBLICENSE
The Client hereby understands and agrees that the Client shall/may under no circumstances sub-license, assign, transfer or otherwise dispose of this Agreement in whole or in part or any of its rights (including the right to use the Website) hereunder to any person, individual, legal entity, firm or corporation without the prior written consent of the Company.
The Client hereby agrees that the Company may transfer its rights and obligations hereunder to any third party at its sole discretion and at any time, and such transfer shall only be subject to a written notice serviced to the Client by the Company, and no any further consent from the Client will be required.
REPRESENTATIONS & WARRANTIES OF THE COMPANY
The Company does not make any representation or warranty of any kind, whether express or implied, including without limitation any warranty of merchantability or any warranty with regard to any third party products, third party content or any software, equipment, or hardware obtained from third parties.
The Company does not warrant that the functions contained in Website will meet the Client’s requirements or that the operation of the Website will be interrupted or error-free. The entire risk as to the quality and performance of the Website is with the Client.
The Company will make reasonable efforts to design the Website so that it works in any type of internet web browser, but the Company does not warrantee the Website to work in all internet web browsers.
The Client agrees that it shall defend, indemnify, save and hold the Company harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees associated with the Company’s development of the Website to the benefit of the Client. This includes Liabilities asserted against the Company, its subcontractors, agents, its clients, and employees, which may arise or result from any Service provided or performed or agreed to be performed hereunder.
The Client also agrees to defend, indemnify and hold harmless the Company against Liabilities arising out of any injury to person or property caused by any products or services sold or otherwise distributed over the Client’s Website. This includes infringing on the proprietary rights of a third party, copyright infringement, and delivering any defective product or misinformation which is detrimental to another person, organization, or business.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate Party by personal delivery or by certified mail, postage prepaid, recognized overnight delivery services, or e-mail.
NATURE OF THE RELATIONSHIP BETWEEN THE PARTIES
The contractual relationship hereby established between the Company and the Client during the term of this Agreement shall be solely that of an independent contractor and its customer. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other.
Host Target retains the right to refuse service to any client for any reason. We also retain the right to terminate your service for any reason whatsoever. Such instances, client will be notified of termination with 30 days notice.
ENTIRE AGREEMENT AND AMENDMENT(S)
This Agreement contains the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes and replaces all prior discussions, agreements, proposals, contemporaneous conditions, definitions, warranties, understandings or representation, whether orally or in writing, between the Parties regarding the subject matter of this Agreement. This Agreement shall not be modified or changed in any manner except if mutually agreed upon through a written instrument duly executed by the Parties or by authorized representatives of the Parties.
If any provision of this Agreement is held invalid or unenforceable for any reason, the Parties agree that such invalidity will not affect the validity of the remaining provisions of this Agreement, and further agree to substitute for the invalid provision a valid provision, which most closely approximates the intent and economic effect of the invalid provision.
Any waiver of a default under this Agreement shall be made in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. No delay or omission in the exercise of any right or remedy shall impair such right or remedy or be constructed as a waiver. A consent to or approval of any act shall not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act.
The article headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
GOVERNING LAW, MANDATORY MEDIATION IN CASE OF DISPUTES, JURISDICTION AND ATTORNEYS’ FEES
In the event of any disagreement between the Parties with respect to any aspect of this Agreement, the Parties agree to discuss in good-faith to reach an amicable resolution prior to starting any litigation/legal proceedings against each other.
This Agreement shall be construed and enforced in accordance with the laws of the State of New Jersey, USA. The Courts located within the Morris County, New Jersey, USA shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement. Both Parties hereby submit to the jurisdiction of said Courts for purposes of any such suit or proceeding, and waive any claim that any such forum is an inconvenient forum.
In the event any litigation, mediation or other legal proceedings (“Proceedings”) is initiated by any Party against any other Party to enforce, interpret or otherwise obtain judicial or quasi-judicial relief in connection with this Agreement, the prevailing Party in such Proceedings shall be entitled to recover from the unsuccessful Party all costs, expenses and actual attorney’s fees relating to or arising out of (a) such Proceedings, whether or not such Proceedings proceed to judgment, and (b) any post-judgment or post-award legal proceedings, including without limitation any legal proceedings aimed at enforcing any judgment or award resulting from any such Proceedings.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN FULL, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF HOST TARGET AGREEING TO PROVIDE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND HOST TARGET, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND HOST TARGET RELATING TO THE SUBJECT OF THIS AGREEMENT.