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These terms and conditions are part of the agreement
("Contract") between LEADS.com, Inc. ("LEADS.com")
and your business or company ("You" or "Advertiser")
for the purchase and provision of the listing, search
or advertising services described in the Current Campaign
section of the Contract.
1. Advertiser Information, Materials and Products
Advertiser shall provide LEADS.com with true, accurate
and current information for placements, listings or
advertising made in online Yellow Pages, search services,
directories or other Internet services hereunder (the
"Listings"). Advertiser certifies that it
has the legal right to use all information, names, trademarks
and search terms (collectively, "Advertiser Content")
it provides or includes in its Listings. Advertiser
understands and agrees that the Advertiser Content may
be accessed and displayed on various Internet sites
and services, and Advertiser hereby grants LEADS.com
and the operators of such sites or services (the “Listing
Services”), including those set forth in this
Contract, the right to market, display, reproduce (including
compression and temporary storage), distribute, perform,
transmit and promote the Advertiser Content together
with any content or materials on any interactive site
linked to the Advertiser Content or the Listings through
the Listing Services.
Advertiser represents and warrants that: it has all
necessary rights and permissions to offer, sell and/or
license the products and services it promotes through
the Listings and the Advertiser's website; and the Listings,
Advertiser Content, Advertiser's website and Advertiser’s
products and services (i) do not and will not violate
any laws or regulations, (ii) do not and will not violate
or infringe any third party's trademark, copyright,
patent, privacy, publicity or other rights, (iii) are
not false, misleading, defamatory or threatening and
are not likely to result in fraud, damage, injury or
harm to any person, and (iv) are free of viruses, worms,
trojan horses or other codes or programming that will
delay, disrupt, interfere with, or damage websites,
software, computers or networks or expropriate any data
or information.
Advertiser acknowledges that the various Listing Services
on which Listings appear may require compliance with
certain policies and guidelines, and Advertiser shall
access or obtain copies of the then-current versions
of such policies and guidelines. Advertiser shall be
responsible for ensuring that the Advertiser Content,
Listings and the Advertiser's website will at all times
comply with all applicable policies and guidelines,
including the privacy policies, terms of service, and
advertising guidelines of the Listing Services on which
Listings appear. Advertiser acknowledges and agrees
that the Listing Services on which its Listings appear
may refuse, remove or modify the Listings pursuant to
such guidelines or policies.
Without limiting the foregoing, Advertiser will comply
with all policies, requirements and guidelines of Listing
Services that offer search features and listings and
will not engage in any conduct or utilize any tactics
prohibited by such Listing Services, including, without
limitation, embedding clear images, listing irrelevant
keywords to gain more traffic, adding adult content
to its site, or tampering with meta tags. If, at any
time, Advertiser violates the policies, requirements
or guidelines of a Listing Service, then LEADS.com may,
at its option, terminate this Contract without refund
or any other obligation to Advertiser..
2. LEADS.com Services
LEADS.com's obligations hereunder are limited to transmitting
the Advertiser Content provided by Advertiser to the
Listing Services as set forth in the contract in the
form and manner specified by such entities. Advertiser
acknowledges that LEADS.com does not produce, operate
or transmit the Listing Services on which Listings may
appear and that LEADS.com acts only as a sales representative
or reseller of advertising inventory, search or listing
services for the Listing Services. Advertiser agrees
that LEADS.com shall not be responsible for the appearance,
position, display, removal, refusal or modification
of the Listings by any Listing Service. LEADS.com
makes no representations or guarantees of any kind regarding
the position, effectiveness, level of impressions, click-throughs,
customer response or other performance of any Listings.
LEADS.com may terminate the Contract or suspend performance
of its services in the event of (i) any termination
or substantial modification of applicable products,
services or features by the Listing Service, (ii) any
failure to pay by Advertiser or (iii) any material breach
of this Contract by Advertiser that remains uncured
for 30 days or more after LEADS.com has provided written
notice of such breach to Advertiser.
3. Search Services
Search Service Restrictions: Advertiser will comply
with all policies, requirements and guidelines of the
Search Services (Google, Yahoo! Search, Looksmart, InfoSpace,
Interchange, and others) and will not engage in any
conduct or utilize any tactics prohibited by such Services,
including, without limitation, embedding clear images,
listing irrelevant keywords to gain more traffic, adding
adult content to its site, or tampering with meta tags.
If, at any time, Advertiser violates the policies, requirements
or guidelines of a Search Service, then LEADS.com may,
at its option, terminate this Contract without refund
or any other obligation to Advertiser.
Click Definition: "Click" means an internet
user clicking on a link to Advertiser's web site in
the Search Service's results listing for Advertiser,
as counted by LEADS.com.
Lead Definition: A "Lead" means an action
in the form of a phone call, email, FastQuote or other
action as counted by LEADS.com in order for an internet
user to engage the Advertiser about their products or
services.
4. Payment
Advertiser shall pay LEADS.com the amount set forth
in the contract at the beginning of each month's billing
cycle, through Advertiser's credit card, direct debit
or other mutually agreed payment mechanism, during the
term of this Contract. Unless another payment mechanism
is mutually agreed upon by the parties, Advertiser hereby
authorizes LEADS.com to charge the Advertiser credit
card account provided in this Contract for the monthly
payment amount and other charges incurred by Advertiser.
All amounts are payable in US Dollars, and Advertiser
will be responsible for payment of any currency exchange
or conversion fees assessed by a payment processor.
LEADS.com reserves the right to charge interest on amounts
remaining unpaid after the applicable due date at the
rate of one and one half percent (1.5%) per month (or
the highest rate permitted by law, if less).
5. DISCLAIMER OF WARRANTIES AND LIMITATION
OF LIABILITY
LEADS.com DOES NOT MAKE AND SPECIFICALLY DISCLAIMS
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATION UNDER
SECTION 6 BELOW, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OF ANY CHARACTER, EVEN IF SUCH PARTY IS AWARE
OF THE RISK OF SUCH DAMAGES, THAT ARISE OUT OF OR RELATE
TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT
OR OTHERWISE. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATION
UNDER SECTION 6 BELOW, LIABILITY FOR DAMAGES OF ANY
KIND SHALL NOT, FOR ANY REASON, EXCEED THE AMOUNT ACTUALLY
PAID BY ADVERTISER TO LEADS.com UNDER THIS CONTRACT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN
WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS
MAY NOT APPLY.
6. Confidentiality
Except as necessary to fulfill its obligations in connection
with this Contract, each party shall keep the existence
and terms of this Contract confidential and neither
party will publish any press release related hereto
without the prior written consent of the other party.
7. Indemnity
Each party ("indemnifying party") hereby
agrees to indemnify, defend and hold harmless the other
party and the officers, directors, agents, affiliates,
and employees of the other party from and against all
claims, actions, liabilities, losses, expenses, damages
and costs (including, without limitation, reasonable
attorneys' fees) that may at any time be incurred by
any of them by reason of any claims, suits or proceedings
brought by a third party ("Third Party Liabilities")
and arising out of any material breach by indemnifying
party of any duty, representation or warranty under
this Contract. Without limiting the foregoing, Advertiser
shall indemnify, defend and hold harmless LEADS.com
and its officers, directors, agents, affiliates, and
employees from and against all Third Party Liabilities
arising out of any actual or alleged infringement or
violation by the Listings or Advertiser Content of any
third party's rights or the policies or guidelines of
Listing Services on which the Listings may appear.
8. Amendment
LEADS.com reserves the right to make changes to the
terms and conditions of this Contract by sending e-mail
or other notification of such changes to Advertiser.
If any proposed change is not acceptable to Advertiser,
then Advertiser may terminate this Contract at any time
before the changes take effect by providing written
notice of such termination to LEADS.com. Notwithstanding
the foregoing, notice of any price increase shall be
provided as set forth in the Pricing and Billing section
of the Order form.
9. Miscellaneous
This Contract sets forth the entire agreement between
Advertiser and LEADS.com with respect to the transactions
set forth herein, and supersedes any and all prior agreements
of LEADS.com or Advertiser with respect to such transactions.
Advertiser shall not make any assignment of this Contract
or any rights benefits or obligations hereunder (including,
without limitation, by way of merger or consolidation)
without the prior written consent of LEADS.com. In the
event of an assignment, this Contract shall be fully
binding upon, inure to the benefit of and be enforceable
by the parties hereto and each of their respective successors
and assigns.
This Contract shall be interpreted, construed and enforced
in accordance with the laws of the Commonwealth of Virginia,
except for its conflicts of laws principles. ADVERTISER
HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION
OF THE COURTS OF THE COMMONWEALTH OF VIRGINIA AND THE
FEDERAL COURTS SITUATED IN THE COMMONWEALTH OF VIRGINIA
IN CONNECTION WITH ANY ACTION ARISING UNDER OR RELATING
TO THIS AGREEMENT.
> For Signature Website
Clients Only
THESE ARE THE TERMS AND CONDITIONS(“Agreement”)
APPLICABLE TO THE PURCHASE AND SALE OF WEBSITE RELATED
SERVICES AMONG YOU (“Customer”, “you”
or “your”) AND WEBSITE PROS INC. (“Website
Pros”, “us” “we” or “our”)
YOU AGREE TO PAY THE UPFRONT DESIGN FEE UPON ENTERING
YOUR PAYMENT INFORMATION IN THE WEBSITE PROS PURCHASE
SYSTEM (the “Effective Date”) AND THE MONTHLY
FEES FOR THE SERVICES PURCHASED FOR 12 MONTHS FROM THE
DATE YOU ARE SENT AN EMAIL NOTIFYING YOU THAT THE WEBSITE
IS HOSTED (the “Host Date”). THE FEES PAID
TO WEBSITE PROS ARE NON-REFUNDABLE. ENTERING YOUR PAYMENT
INFORMATION IN THE WEBSITE PROS PURCHASE SYSTEM SHALL
BE DEEMED TO INDICATE THAT YOU HAVE READ AND UNDERSTAND
THESE TERMS AND CONDITIONS.
IN ADDITION, YOU MAY ELECT TO PURCHASE ADDITIONAL SERVICES
FROM WEBSITE PROS, OR THEIR PARTNERS AND/OR OTHER THIRD
PARTIES, WHICH HAVE THEIR OWN TERMS AND CONDITIONS AGREEMENTS
AND ACCEPTABLE USE AGREEMENTS, ASIDE FROM THIS AGREEMENT.
THOSE AGREEMENTS SHOULD BE PRESENTED TO YOU AT THE TIME
OF PURCHASE AND/OR ACCOUNT LOGIN, AND IT IS YOUR OBLIGATION
TO REVIEW, ACCEPT AND ABIDE BY THOSE AGREEMENTS AS WELL
AS THIS AGREEMENT. TERMS AND CONDITIONS FOR ALL OF OUR
SERVICES CAN BE FOUND ON: WWW.WEBSITEPROS.COM/HTML/TERMS_AND_CONDITIONS.HTML.
Website Pros reserves the right to change or modify
any of the terms and conditions contained in this Agreement
at any time and from time to time in its sole discretion,
and to determine whether and when any such changes apply
to existing or future customers. Website Pros may make
changes or modifications to referenced policies and
guidelines without notice to you. Your continued use
of the Services following Website Pros' posting of any
changes or modifications will constitute your acceptance
of such changes or modifications.
Website Pros will provide you with the following services
(the "Service"). Website Pros will build a
Signature Series website utilizing the design selected
by you with information provided by you (the "Website").
Website Pros shall develop and host the Website on a
network server accessible by the Internet via an assigned
Universal Resource Locator ("URL") subdomain
and register the Website URL with several World Wide
Web Search Engines.
The Website designs are delivered as they appear in
the library. Website Pros will place your company logo
or company name in the designated area. Website Pros
will add three pages of “get started” copy
or customer provided copy in the designated areas of
the design. If you choose a flash version of your design,
Website Pros will only be able to add the customer logo/company
name and change the navigation button names within the
flash file. Website Pros will be unable to change the
images in the flash files. If you choose a design that
has more than 5 navigation buttons built into the design,
Website Pros will not be able to delete the unused navigation
buttons. Website Pros will be able to replace images
within the design in the non-flash version of the site
only.
You hereby grants to Website Pros and its subcontractors
the necessary rights and licenses with respect to such
Website to carry out obligations under this Agreement
and to make a reasonable number of archival or back-up
copies as deemed necessary by Website Pros. Optionally,
you may elect to purchase additional add-on services
such as e-commerce, or advanced website options which
are also covered by this Agreement.
1. Customer shall pay Website Pros for the Service
provided. If Customer requires additional services,
additional fees may apply based on posted rates. All
rates are stated net of all applicable federal, state,
and local taxes. On any amounts not paid when due, Customer
agrees to pay interest at the highest rate allowed by
law. In addition, Customer agrees to pay all costs of
collection, including costs of litigation and reasonable
attorneys' fees. Customer agrees to execute financing
statements and other instruments at Website Pros' request.
A $20 (Twenty U.S. Dollars) collection fee will be charged
for all dishonored checks. A $15 (Fifteen U.S. Dollars)
fee will be assessed for the following reasons: (1)
late payment, (2) payment with insufficient funds, (3)
denied or invalid credit card number, or (4) restart
of Service terminated for nonpayment. Payment is late
after the fifth (5th) day of the month. Website Pros
may change any fee, rate, or plan upon thirty (30) days'
notice (except for hosting fees [see Section 5 herein]).
2. This Agreement is effective as of the Effective
Date and shall continue for a period of one year unless
otherwise terminated by i) Website Pros if Customer
breaches this Agreement or ii) Customer, in either case,
Customer shall pay Website Pros an early termination
fee of fifty (50%) percent of the then-current monthly
fee for the remainder of the term. After one year, this
Agreement shall renew for successive one-month terms
unless terminated by either party for any reason.
3. Customer shall be responsible for the following:
a. Providing Website Pros with all
information, data, text, music, sound, images, photographs,
graphics, video, messages, tags, custom images (including,
but not limited to, design, pamphlets, brochures,
logos, and other images) and other materials ("Content")
in connection with development of the Website.
b. Contacting Website Pros for all
changes, modifications, and enhancements to the Website
and/or Service starting from the Effective Date.
c. Contacting Website Pros with notice
of Customer’s decision to cancel or discontinue
the Service starting from the Effective Date.
d. Obtaining Internet connectivity
to access the Website, to send and receive e-mail,
and to otherwise access and utilize the Internet.
e. To the extent Customer gathers
any personal information about visitors to the Website,
Customer will not share that personal information
with any third party without first obtaining such
visitor’s consent.
f. Providing current and updated
contact information (including e-mail address and
fax number) for Website Pros' use in contacting Customer
concerning the Website.
g. Customer represents to Website
Pros that Customer is at least eighteen years old
and is responsible for supervising the activities
of any under-age user.
h. Ensuring that the Website content
provided by Customer does not infringe or violate
the Intellectual Property rights (including, but not
limited to, trademarks, trade names, copyrights, patents,
domain registration rights, and trade secrets) or
any other right of any third party (including, but
not limited to, rights of privacy and contractual
rights), and acquiring any authorization(s) necessary
to use intellectual property or other proprietary
information of third parties.
i. Ensuring the accuracy of materials
provided to Website Pros, including, without limitation,
website content, descriptive claims, warranties, guarantees,
nature of business, and contact information for the
Customer.
4. Customer understands that any fees and annual or
monthly charges are nonrefundable.
5. Upon cancellation, Customer will receive a final
bill reflecting the balance due for any remaining charges.
Customer agrees to pay all fees incurred by Customer
and billed to Customer via credit card, check, local
telephone company, direct billing and/or third party
billing arrangement. Direct billing is due upon receipt
of invoice. Website Pros reserves the right to adjust
its hosting fees from time to time without prior notice
to Customer.
6. Customer will use the Service in a manner which
does not interfere with or disrupt other network users,
services, or equipment, and Website Pros reserves the
right to terminate or suspend Service without notice
if such interference is determined by Website Pros to
exist. Such interference or disruption includes, but
is not limited to:
a. wide-scale distribution of messages,
including bulk e-mail or unsolicited spam e-mail,
or wide-scale distribution of messages to inappropriate
mailing lists, newsgroups, or other public or private
forums,
b. propagation of computer worms
or viruses, and
c. use of the network to make unauthorized
entry to other computational, information, or communications
devices or resources- This includes unauthorized security
probing activities or other attempts to evaluate the
security integrity of a network or host system without
permission.
7. Website Pros reserves the right to deny, terminate,
or suspend Service without notice if, in Website Pros'
sole discretion, the Service is used by Customer in
a manner that violates or may violate the following
standards, and Website Pros reserves the right to reject,
alter, modify, or remove the Website, Website domain
name, URL address, or any Website content (including,
but not limited to, any language, words, text, photographs,
designs, drawings, graphics, images, symbols, or logos)
which Website Pros in its sole discretion deems to be:
a. An infringement on or a mechanism
designed to facilitate the infringement of a propriety
interest of any third party, including without limitation,
any copyright, trademark, domain registration right,
trade secret, or patent right. By using the Service,
Customer represents and warrants that any name or
word submitted to be used as all or part of the URL
associated with the Website does not infringe any
trademark or domain name rights of any third party.
Moreover, Customer warrants that it has a present
good faith intention to use the URL it requests in
connection with a commercial or personal endeavor
and that it is not merely "cybersquatting,"
i.e., obtaining the URL merely to attempt to sell
the rights to the URL or subdomain to some third party.
b. In violation of any federal, state,
county, and municipal laws, regulations, governmental
agency orders, and court orders.
c. Offensive, including without limitation,
bigotry, racism, discrimination, hatred, or profanity;
is disparaging, defamatory, libelous, or results in
an invasion of privacy; promotes or provides instructional
information about illegal activities or physical harm
or injury to any group, individual, institution or
property; or infringes on a proprietary interest of
any third party, including without limitation, any
copyright, trademark, domain registration right, trade
secret or patent right; or may violate any federal,
state, county, and municipal laws, regulations, governmental
agency orders, and court orders; or
d. States or implies that the Website
is placed by Website Pros or any party with a contractual
relationship with Website Pros, or that such parties
endorse the Customer’s products or services.
e. Pornographic or obscene. Website
Pros neither sanctions nor permits hosted site content
or the transmission of data that contains illegal
or obscene material or fosters or promotes illegal
activity. Website Pros reserves the right to immediately
suspend or terminate any site or transmission that
violates this policy, without prior notice. In the
event of such termination, Customer agrees that the
unused portion of any fees Customer may have paid
for any Service rendered to Customer by Website Pros
are an appropriate recompense to Website Pros for
the time required to respond to and address issues
created by Customer's illegal or obscene site/content,
and Customer agrees not to seek recovery of those
fees. Further, should Customer violate this policy,
Website Pros will actively assist and cooperate with
law enforcement agencies and government authorities
in collecting and tendering information about Customer,
the Website, the illegal or obscene content, and those
persons that may have inappropriately accessed, acquired,
or used the illegal or obscene content.
f. Violent or encouraging violence.
g. Disparaging, defamatory, libelous,
or resulting in an invasion of privacy.
h. Promotion or providing of instructional
information about illegal activities or physical harm
or injury to any group, individual, institution or
property, or encouraging illegal or criminal conduct.
i. Promotion or facilitation of,
or engaging in, consumer deception or fraud, drug
use, drug dealing, pyramid schemes, gambling, or any
other illegal activities.
j. Intentional holding of Website
Pros (including its affiliates) or their employees
or shareholders up to public scorn, ridicule, or defamation.
8. The Service are provided on an "as is"
and "as available" basis. Website Pros' entire
liability and Customer's exclusive remedy against Website
Pros for any failure of service under this Agreement,
or the performance or nonperformance of any obligation
under this Agreement, shall be limited to a refund of
amounts paid to Website Pros during the period of time
that the Service contracted for were interrupted or
not provided properly or continuously. The entire liability
of Website Pros, and Customer’s exclusive remedy
against Website Pros for errors in the Website (other
than those errors caused by Customer) shall be the correction
of such errors upon notice from Customer. EXCEPT AS
EXPRESSLY STATED HEREIN, CUSTOMER’S USE OF THE
SERVICE IS AT ITS OWN RISK AND WEBSITE PROS DISCLAIMS
ANY AND ALL WARRANTIES TO CUSTOMER, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING,
USAGE, OR TRADE PRACTICE. WEBSITE PROS DOES NOT WARRANT
THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE,
OR COMPLETELY SECURE. Website Pros disclaims and shall
not be liable for any other loss, injury, cost or damage
suffered by Customer or any third party and shall in
no event be liable for consequential, special, or indirect
or incidental damages, including without limitation,
damages for loss of business profits, business interruption,
or loss of data, arising out of or in any way connected
with the use of the Website and any information available
on it, and the delay or inability to use the site or
any information, even if Website Pros has been advised
of the possibility of such damages. These limitations
and exclusions regarding damages apply even if any remedy
fails. Some jurisdictions do not allow the exclusion
of certain warranties or the limitation or exclusion
of liability for incidental or consequential damages.
Except as expressly stated herein, Website Pros disclaims
any and all warranties to Customer, expressed or implied,
including implied warranties of merchantability and
fitness for a particular purpose.
9. Website Pros will not be liable to any third parties
for any direct, incidental, or consequential losses
or damages suffered by such third parties for any reason,
whether foreseeable or not, including, without limitation,
damages for loss of profits, loss of income or earnings,
loss of business opportunities, injury, or other loss
or damage resulting directly or indirectly out of or
in connection with the Service, or through use of the
Website. The foregoing shall apply despite any negligence,
misconduct, errors, or omissions by Website Pros, including
without limitation its employees, representatives, agents,
or technical operations. Customer assumes sole responsibility
for:
a. acquiring any authorization(s)
necessary to use intellectual property (including,
but not limited to, copyrights and trademarks) or
information of third parties;
b. acquiring any authorization(s)
necessary for hypertext links to third party websites;
c. the accuracy of materials provided
to Website Pros, including, without limitation, website
content, descriptive claims, warranties, guarantees,
nature of business, and contact information for the
Customer; and
d. ensuring that the Website content
provided by Customer does not infringe or violate
the intellectual property rights or any other right
of any third party. Website Pros shall have no liability
and shall be held harmless for any content provided
by Customer that infringes or violates any rights
of third parties, including, without limitation, rights
of publicity, rights of privacy, patents, copyrights,
trademarks, trade secrets, and/or licenses. Website
Pros disclaims any responsibility for any content,
goods, and services available through the Website,
or the quality or accuracy of any information in the
Website. Website Pros will not endorse, warrant, or
guarantee any product or service offered through the
Website, and will not be a party to or in any way
monitor any transaction between Customer and third-party
purchasers of products or services resulting from
the Service or use of the Website, including, without
limitation, all sales of goods or services, credit
card transactions, banking or securities transactions,
or any business, service, or merchandise agreements.
WEBSITE PROS DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED
WARRANTIES TO THIRD PARTY USERS OF THE WEBSITE, INCLUDING
WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
10. Customer agrees to defend, indemnify, and hold
harmless Website Pros and each of Website Pros' officers,
directors, employees, agents, and affiliates from, against,
and in respect of: (i) any and all losses, damages or
deficiencies resulting from any third party claim against
Website Pros in connection with the Website (including,
but not limited to, website content) or the URL, (ii)
any and all losses, costs (including reasonable attorney’s
fees), expenses, damages, assessments, or judgments
(collectively, “Liabilities”), resulting
from any claim against any of such parties in connection
with Customer’s website, (iii) any claim or demand,
including reasonable attorneys' fees, made by any third
party due to or arising out of the Content (iv) all
costs and expenses incident to any and all actions,
suits, proceedings, claims, demands, assessments, or
judgments in respect thereof regardless of the merit
thereof, including Website Pros' reasonable legal fees
and expenses (whether incident to the foregoing or to
Website Pros' enforcement of said rights or defense
and indemnity).
11. Website Pros reserves the right to suspend or terminate
Service with or without notice to Customer if Website
Pros determines, in its sole discretion, that Customer
has failed to comply with its obligations as set forth
in this Agreement.
12. As between Customer and Website Pros, all Content
provided by Customer to Website Pros for inclusion to
the website shall remain the sole and exclusive property
of Customer. Customer acknowledges that all Content
is owned by Customer or that Customer has a legal right
to such Content. With the exception of Customer’s
ownership interest as identified in the previous two
sentences, ownership interest to the Website, including,
but not limited to, the URL address, HTML coding, scripting,
copyrights, domain name(s), and all other intellectual
property rights, shall remain exclusively with Website
Pros. Upon termination of the Service, should Customer
desire to obtain the proprietary, copyright, or ownership
rights to the Website, Customer must obtain express,
written permission from Website Pros, and Customer shall
compensate Website Pros a royalty fee of i) if within
the initial term, an early termination fee of one-hundred
(100%) percent of the then-current monthly fee for the
remainder of the term plus twelve (12) times the then-current
monthly fee received by Website Pros for the Service
or ii) if after one year, twelve (12) times the then-current
monthly fee received by Website Pros for the Service,
as compensation for assignment of the proprietary rights
to the website. Such ownership or proprietary rights
assignment shall be limited to the actual the URL address,
Website and its underlying HTML script or coding as
developed for Customer by Website Pros, but shall not
include any rights to Website Pros' software, trade
secrets, methodologies, processes, proprietary functions,
know-how, and all intellectual property including, but
not limited to, all copyrights, trademarks, patents,
and trade secrets related to Website Pros' products
or services, which shall remain the sole and exclusive
property of Website Pros and its suppliers, affiliates,
partners, and licensors.
13. This Agreement shall be governed by the laws of
the State of Florida, without giving effect to principles
of conflict of laws contained herein. Customer agrees
that any judicial proceeding for the breach of or enforcement
at law or equity of this Agreement or any provision
hereof shall be instituted only in a federal or state
court of competent jurisdiction in the city of Jacksonville
and the State of Florida, and Customer consents to the
jurisdiction of such court, and waives the right to
challenge the jurisdiction of such court on grounds
of lack of personal jurisdiction or to seek a change
of venue. This Agreement constitutes the entire agreement
of the parties relative to its subject matter, and shall
not be waived, modified, or supplemented in whole or
in part except in a writing signed by the parties. If
any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
14. Any failure by Website Pros to enforce any of its
rights under this Agreement or any applicable laws shall
not constitute a waiver of such right. If any provision
of this Agreement is found by a court of competent jurisdiction
to be invalid, Customer, Website Pros, and the court
shall endeavor to give effect to the intent reflected
in that provision, and the remaining provisions shall
retain their full force and effect.
15. This Agreement does not create any agency, employment,
partnership, joint venture, franchise, or other similar
or special relationship between you and Website Pros.
Neither party will have the right or authority to assume
or create any obligations or to make any representations,
warranties or commitments on behalf of the other party
or its affiliates, whether express or implied, or to
bind the other party or its affiliates in any respect
whatsoever.
16. Your rights and obligations under this Agreement
shall not be transferred or assigned directly or indirectly
without the prior written consent of Website Pros.
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