This Customer Service Agreement ("Agreement") is made and
entered into this day by and between SiteLeader.com ("Site Leader") and Customer.
In consideration of the mutual covenants herein, the parties agree
to the following:
1. SERVICES
Site Leader agrees to provide to the Customer those services which are
more particularly described on Exhibit A (Site Leader Services).
All services under this agreement shall be performed in accordance
with Site Leader's standard procedures, so long as such procedures
do not conflict with the express terms of the Agreement.
Site Leader may impose reasonable rules and regulations regarding
the use of its services from time to time.
2. PRICES, TAXES
Customer agrees to pay Site Leader the amounts specified on Exhibit A for services. All prices for services by Site Leader are in U.S. dollars.
All payments due hereunder are net amounts to be received by Site Leader, exclusive of all taxes, duties, sales taxes, and similar taxes and duties, and are not subject to offset or reductions because of any costs, expenses, taxes, duties, assessments or liabilities incurred by Customer or imposed on Site Leader in the performance of this Agreement or otherwise due as a result of this Agreement. Notwithstanding the foregoing, Site Leader shall be responsible for the payment of any and all income taxes and income tax withholding of Site Leader.
In the event of non-payment and/or a chargeback by a credit card institution for Services provided, you agree and acknowledge that the domain name registration shall be transferred to Site Leader or its designated assignee. Site Leader reserve all rights regarding such domain name registration including but not limited to: (a) make the domain name registration available to other parties for purchase; and (b) to disable the DNS so that the domain name no longer resolves on the Internet, or to re-direct the domain name to an IP address or other URL designated by us, including but not limited to an IP address or URL which hosts an under construction, parking, for sale page, or other page which may include advertisements and media promotions for, and links to, Site Leader or its designee's website(s) service(s) and product(s) offerings, third-party websites, third-party product(s) and service offerings, and/or Internet search engines, as well as to advertise the sale or auction of said domain name registration(s). We may reinstate any such Service solely at our discretion, and subject to our receipt of the applicable Service or renewal fee and our then-current reinstatement fee. All reinstatements are subject to an additional 2 (TWO) year renewal at the then current registrar and will be prohibited from transferring the domain name to another registrar for a 2 (TWO) year period. The 2 (TWO) year period shall begin the day we receive said fee. All fees are non-refundable, in whole or in part, even in the event your service has been or is suspended, cancelled, and/or transferred prior to the end of the service term.
3. ORDER ACCEPTANCE, PAYMENT
All orders are subject to acceptance by Site Leader. An order will be
deemed
accepted by Site Leader when written confirmation of the order is sent
to
Customer via E-mail or fax. Site Leader may refuse to accept any order,
or
delay acceptance pending fulfillment of conditions Site Leader may
choose to
impose. Such refusal or such conditions may not be unreasonable,
however,
and Site Leader agrees to provide Customer with reasonable notice via
E-mail
or fax of any intent to delay or decline the acceptance of any order.
Customer agrees to pay $35 US per year to Site Leader.com for each
Domain name processed for registration. Site Leader.com will register
the
Domain(s) as entered above (only if available). For registration and
security purposes, you agree to allow Site Leader.com to act as your
administrator. Customer further agrees that the domain name
registration
record will be made 'private' and the domain name record will remain in
a
'locked' registrar status. As administrator you hereby agree to allow
Site
Leader to renew and or transfer your domain name with an ICANN approved
registrar of Site Leader's choice. You agree to allow Site Leader to
keep
the domain record in a 'locked' registrar status.
Payments are due to Site Leader upon account activation and future
renewal.
If due to bank charges, transfer fees, or the like, Site Leader should
receive less than its invoice amount, Site Leader shall re-invoice
Customer
for the shortfall. Should payment in full of any invoice, save for the
aforementioned shortfalls, not be received by Site Leader within thirty
(30)
days after account activation or renewal, Site Leader may impose a debt
service charge amounting to one percent (1%) of the overdue balance for
each
month or fraction thereof of the overdue amount that remains unpaid
plus a
$495 late payment fee. In the event that any amount remains unpaid ten
(10)
days after presentation of an invoice, Site Leader may discontinue,
withhold, or suspend services to Customer.
4. TERM
Unless terminated as provided for in this Agreement, the term of this
Agreement shall commence on the date of account activation and continue
for
the length of time indicated on original order. Plan types and
length are
shown in Exhibit A. This Agreement shall be automatically renewed for
successive periods, subject to earlier termination as set forth in this
Agreement, unless either party notifies the other, via E-mail or fax,
on or
before the ninety(90) days prior to the end of the then existing term.
Failure by Customer to provide Site Leader with 90 days prior written
notice
of cancellation for services are subject to a $495 early termination
fee. A
$495 early termination fee will be applied to accounts cancelled prior
to
the contracted service period. Any and all customer initiated changes
to the
DNS (Domain Name Server) shall constitute a termination initiated by
the
customer and shall be subject to the provisions of early termination.
Either
party may terminate this Agreement without notice upon the other
party's
breach of any term, condition or obligation hereunder if not remedied
(if
remediable) (i) within ten (10) days from the date of notice, via
E-mail or
fax, with respect to any monetary obligation, and (ii) within thirty
(30)
days from the date of notice, via E-mail or fax, with regard to any
other
breach.
5. CUSTOMER RESPONSIBILITIES
In addition to the obligations of Customer as otherwise specified in
this Agreement, Customer shall be solely responsible for the
following:
a. Selection of products and services, including the Services, to
achieve Customer's intended results;
b. The accuracy and content of any information provided by Customer
to Site Leader;
c. Any information, programs and other information that Customer
receives as a result of the use of the Services, including, without
limitation, the entire responsibility for any losses of data,
programs, breaches of security, viruses, and disabling or harmful
devices that Customer may download or otherwise experience as a result
of Customer's use of the Services; and
d. Customer agrees to use the Services in a manner consistent with
any and all applicable laws and regulations.
e. Customer is responsible for directly updating, or notifying
Site Leader, of any changes to credit card information (including, but not
limited to e-mail address, card number, expiration date, billing address,
telephone number, fax number and card status).
6. OWNERSHIP
All materials, documentation, computer programs, inventions
(whether or not patentable), pictures, audio, video, artistic works,
and all works of authorship, including all worldwide rights therein
under patent, copyright, trade secret, or other property right,
created or developed by Site Leader while providing Services
(collectively, Work Product) is owned by Site Leader. Work Product
shall not include the Confidential Information of Customer. If
ownership of all right, title, and interest of the intellectual
property rights in the Work Product shall not otherwise vest
exclusively in Site Leader, Customer hereby assigns to Site Leader,
and upon the future creation thereof automatically assigns to Site
Leader, without further consideration, the ownership of all Work
Product.
7. LIMITED WARRANTY
Site Leader warrants that for a period of 30 days from the date of
first installation of Customer's completed HomePage on the server
described above, the coding of such HomePage shall be reasonably
HTML-compliant. Notwithstanding the foregoing, the sole and exclusive
remedy for a breach of the warranties contained in this Section 7
shall be that Site Leader shall replace the nonconforming coding to
make such HomePage reasonably HTML-compliant. Customer acknowledges
that HTML is an industry standard that contains some ambiguous
provisions and that does not completely address all issues associated
with the coding of Home Pages accessible via the World Wide Web.
Customer also acknowledges that HTML is a standard that will be
amended from time to time and that not all "browsers" used
by third parties to access the World Wide Web implement HTML in the
same way. Variations in HTML coding associated with ambiguities or
revisions to the HTML standard or variations among World Wide Web
browsers shall not be the basis for a claim of breach of Site Leader's
warranties under this Agreement. The warranties described in this
section 7 are subject to the limitations of liability described below:
Except as provided in this section 7, Site Leader does not make any
express or implied warranties with respect to the Services or any
products provided under this Agreement, including but not restricted
to, the implied warranties of merchantability and fitness for a
particular purpose. Some states do not allow the exclusion of implied
warranties, so the above exclusion may not apply to Customer. Customer
may also have other rights that may vary from state to state.
8. LIMITATION OF LIABILITY
In no event will Site Leader be liable
to Customer for any indirect, incidental, or consequential damages arising out of the
Services or any products provided under this Agreement, even if
Site Leader has been advised of the possibility of such damages.
Some states do not allow the limitation or exclusion of liability for
incidental or consequential damages, so the above limitation or exclusion
may not apply to Customer. You waive all claims to
lost profits. Site Leader's liability to Customer for actual damages
for any cause whatsoever, regardless of the form of the action,
will be strictly limited to a maximum of the payment made for the
prior 1 (one) month.
Customer will take all reasonable and necessary measures to
preclude Site Leader from being made party to any lawsuit or claim
regarding Services provided to any Customer or endorser. Customer
hereby agrees to indemnify and hold harmless Site Leader from any and
all claims of whatever nature brought by any of Customer's clients
or users of Customer's HomePage against Site Leader in excess of the
remedy set forth above.
9. LIMITATIONS OF SERVICE
Unfortunately, computers need routine maintenance and sometimes break
down; also, Site Leader cannot control the timing or volume of
attempts to access Site Leader's server. As a result, Site Leader
does not guarantee that Customer or any third parties will be able to
access the Customer's HomePage at any particular time. Site Leader
Services are provided on an "as-is, as-available" basis.
Site Leader may discontinue service or may require the fulfillment
of conditions Site Leader chooses to impose as a prerequisite for
continued service. Such discontinuation or requirement may not be
unreasonable, however, and Site Leader agrees to provide Customer with
reasonable notice via E-mail or fax of any such intent to discontinue
or impose conditions. Such discontinuation of service shall include
the deletion of Customer data, including but not limited to Customer
files, source codes, programs, graphics, E-mail and documents.
10. CONFIDENTIAL INFORMATION
(a) Each party hereto shall
(i) use the same care and discretion, but in no event less than
reasonable care and discretion, to prevent disclosure, publication, or
dissemination of the other party's Confidential Information (defined
below) as it employs with similar information of its own; and
(ii) not use, reproduce, distribute, disclose, or otherwise
disseminate the other party's Confidential Information except in
connection with the performance of its obligations under this
Agreement.
(b) As used herein the term "Confidential Information"
means any and all data and information relating to the business of the
disclosing party which:
(i) the receiving party becomes aware as a consequence of, or
through, this Agreement;
(ii) has value to the disclosing party and is not generally known
by its competitors;
(iii) is treated by the disclosing party as confidential; and
(iv) has been reduced to tangible form and marked clearly
and conspicuously with a legend identifying its confidential or
proprietary nature; provided, however, that Confidential Information
does not include any data or information which is already known to the
receiving party, or which
a. has become generally known to the public through wrongful act
of the receiving party;
b. has been rightfully received by the receiving party from a third
party without restriction on disclosure and without, to the knowledge
of the receiving party, a breach of an obligation of confidentiality
running directly or indirectly to the other party hereto;
c. has been disclosed pursuant to a requirement of a governmental
agency or of law without similar restrictions or other protection
against public disclosure, or is required to be disclosed by operation
of law;
d. is independently developed by the receiving party without use,
directly or indirectly, of the Confidential Information received from
the other party hereto; or
e. is furnished to a third party by the disclosing party hereunder
without restrictions on the third party's right to disclose the
information.
Confidential Information may include, but is not limited to,
information relating to the products, processes, or financial affairs
of the disclosing party.
11. RELATIONSHIP OF THE PARTIES
The relationship between Site Leader and the Customer is that of
vendor and vendee. Site Leader and Customer shall not be construed as
being joint ventures, franchiser/franchisee, or employer/employee.
This Agreement is a commercial agreement between businesses, not a
consumer agreement. Customer has no authority, apparent or otherwise,
to contract for or on behalf of Site Leader, or in any other way
legally bind Site Leader in any fashion, nor shall Customer be
authorized to make any representations about Site Leader or its
services other than to set forth Site Leader's responsibilities as
outlined in this Agreement.
12. DISPUTES
The parties shall attempt to resolve all disputes
arising out of this Agreement in a spirit of cooperation without formal
proceedings. Any dispute which cannot be so resolved (other than the
collection of money due on unpaid invoices) shall be subject to
arbitration upon written demand of either party. Arbitration shall take
place in location. The arbitration shall take place before an arbitration panel chosen
as follows: The parties shall each choose an arbitrator, and the two
arbitrators shall choose a third arbitrator and determine the third
arbitrator's compensation. Each party shall have one veto over the choice
of the third arbitrator. The three arbitrators shall schedule an informal
proceeding, hear the arguments, and decide the matter by secret majority
vote. Unless the arbitrators decide otherwise, each party shall pay the
costs of its own arbitrator, and shall pay half of the other costs of the
arbitration proceeding. Each party shall have the right to have the
proceedings transcribed. The arbitrators shall not have the authority to
award punitive damages or any other form of relief not contemplated in the
contract. The majority of arbitrators shall render a written opinion
setting forth the basis on which they arrived at the decision regarding
each issue submitted to arbitration; the dissenting arbitrator, if any,
shall not issue a dissenting opinion. Regarding each issue submitted to
arbitration, the decision shall be final and binding only to the extent it
is accompanied by a written explanation of the basis upon which it was
arrived at. Judgment upon the award, if any, rendered by the arbitrators
may be entered in any court having jurisdiction thereof. Should any legal
action permissible under the Agreement be instituted to enforce the terms
and conditions of this Agreement, in particular the right to collect money
due on unpaid invoices, the prevailing party shall be entitled to recover reasonable
attorney's fees and expenses incurred at both the trial and
appellate levels. This Agreement shall be governed in all respects without regard to conflict of
laws provisions, and Customer and Site Leader agree that the
sole venue and jurisdiction for legal actions arising from this Agreement
shall be the appropriate state or federal cour
13. MISCELLANEOUS
Should any part of this Agreement, for any reason, be declared
invalid by a court of competent jurisdiction, such determination shall
not affect the validity of any remaining portion, and such remaining
portion shall remain in full force and effect. This Agreement is
governed by and construed in accordance with the laws without regard to its rules governing conflicts of law. This
Agreement shall be binding upon and inure to the benefit of each party
and their respective heirs, successors and assigns.
14. NOTICES
All notices may be sent by E-mail, fax, or express mail to the
E-mail address, fax number, or address most recently provided and will
be effective upon transmission. Evidence of successful transmission
shall be retained.
15. ENTIRE AGREEMENT, MODIFICATIONS
This Agreement sets forth the entire Agreement and
understanding between the parties and merges all prior discussion between
them. No representations, statements, or inducements, oral or written, not
contained herein shall bind either party. Site Leader may make changes to
this Agreement. Notice shall be accomplished by posting the change(s)
on the Site Leader website located at http://www.siteleader.com/customeragreement.php .
Utilization of Site Leader Services by Customer and/or its Customers
following the effective date of such change shall constitute acceptance by
Customer of such change(s). Otherwise, this Agreement may not be modified
except by the written consent of both parties.
EXHIBIT "A"
