These Supplemental Terms and Conditions are made to the Client Service Agreement. Client (hereinafter “YOU”) and Servata Online Applications, LLC., (hereinafter “Company”) agree that notwithstanding anything contained in the Client Service Agreement to the contrary, the provisions set forth below shall be deemed to be a part of the Client Service Agreement and shall supersede, to the extent appropriate, any contrary provision of the Client Service Agreement. All references to the Client Service Agreement in these Supplemental Terms and Conditions shall be construed to mean the Client Service Agreement and all addenda and exhibits to the Client Service Agreement, as amended and supplemented by these Supplemental Terms and Conditions. By signing the Client Service Agreement and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, YOU agree to be bound by the Client Service Agreement and the Supplemental Terms and Conditions that follow.
II. TERMS AND CONDITIONS
YOU acknowledge understand and agree that YOU are responsible for providing your own text and pictures, and for reviewing your website (content, pictures, and all other aspects) for completeness and accuracy. YOU also understand and agree that YOU are solely responsible for complying with your industry’s advertising rules and rules of professional conduct and any other rules governing your conduct that may apply to YOU. COMPANY does not check or review the content of your website to ensure compliance with any of the above aforementioned rules or any other rules for that matter. YOU agree that should any association, entity or state agency given the task of enforcing the rules related to practicing your profession find that the content contained or the advertising method chosen by YOU violates or potentially violates any rule, code or statute that YOU are solely responsible for remedying such violation.
Furthermore, COMPANY has no obligation to notify YOU should COMPANY receive correspondence from any aforementioned agency, entity or state agency that your website content or advertising method or decision to advertise with COMPANY violates or potentially violates any aforementioned rule, code or statue. If any information provided by you is, in COMPANY’S sole discretion, untrue, misleading, inaccurate, and defamatory or in any other way offensive then COMPANY reserves the right to remove such information and refuse to provide future services to YOU. Furthermore, YOU agree that in COMPANY’S sole discretion, COMPANY, upon written notice to YOU, may remove your Web site and any other advertising created or obtained through COMPANY from the World Wide Web for any reason. Should COMPANY decide to do this, then YOU will be refunded a pro rata share of the fees that YOU paid to COMPANY.
2.0 OWNERSHIP OF PROPRIETARY INFORMATION
YOU agree that neither the service agreement nor these supplemental terms and conditions in any way establishes ownership rights between YOU and COMPANY as to each other’s proprietary information, trademarks, copyrights, service marks, or trade secrets. All such ownership rights will remain exclusively with the party that owned them prior to entering into the service agreement.
Furthermore, YOU agree that COMPANY shall retain full ownership of any and all marketing content, website(s) and material that is created by COMPANY for you regardless of the medium in which such content/material is created, or displayed including the domain name that COMPANY selects for the website that will be used for your marketing campaign. However, should you choose to also use a personalized domain name in addition to the one in which COMPANY chooses, and YOU provide such domain name, YOU shall retain full ownership rights in that domain name.
3.0 REPRESENTATIONS AND WARRANTIES
In addition to warranties and representations in other Sections of this agreement, YOU warrant that all information provided by YOU as part of the registration process is complete and accurate. YOU also represent that, to the best of your knowledge and belief, neither the registration of the domain name YOU have applied for nor the manner in which it is intended to be or is directly or indirectly used infringes the legal rights of a third party. YOU further represent and warrant that all information provided by YOU in connection with your use of the services and in the creation of your website is accurate and current. YOU further agree that YOU have the right, power and authority to enter into this service agreement. In addition, YOU represent and warrant the following:
a) Any Mark, copyright or intellectual property contained within the content that YOU provide to Company is subsisting and is not invalid or unenforceable, in whole or in part.
b) YOU have not previously assigned, transferred, conveyed, or otherwise encumbered such right, title, and interest.
c) YOU are the sole and exclusive owner of any Mark, copyright or intellectual property contained within the content that YOU provide to Company for purposes of this contract, and no other person or entity has or shall have any claim of ownership with respect to the intellectual property whatsoever.
d) The content, artwork and other intellectual property associated with the content that YOU provide to Company does not infringe upon any rights owned or possessed by any third party.
e) There are no claims, judgments, or settlements to be paid by YOU, or pending claims or litigation related to the content that YOU provide to Company.
YOU agree to release, defend, indemnify and hold harmless Company and its contractors, agents, employees, offices, directors, shareholders and affiliates from and against any claims, demands, actions and/or proceedings, losses, damages or costs, including reasonable attorneys’ fees, resulting from any third party claim, action, proceeding, suit or demand arising out of or related to or in connection with the warranties and representation set forth in this Agreement. YOU further agree to release, defend, indemnify and hold harmless COMPANY and its contractors, agents, employees, offices, directors, shareholders and affiliates from and against any losses, damages or costs, including reasonable attorneys’ fees, resulting from any third party claim, action, proceeding suit or demand arising out of or related to (i) your use of the services provided by COMPANY, including, but not limited to, your application for, registration of, renewal of or failure to register or renew a particular domain name registered in your name, (ii) your use of any domain name registration. This indemnification is in addition to any indemnification required under the UDRP or any similar policy, YOU further agree to indemnify, defend and hold harmless the applicable registry administrator and its directors, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of, or related to, your application for and registration of, renewal of, or failure to register or renew, a particular domain name. YOU further agree to release, defend, indemnify and hold harmless Company and its contractors, agents, employees, offices, directors, shareholders and affiliates from and against any claims, demands, actions and/or proceedings, losses, damages or costs, including reasonable attorneys’ fees, resulting from any third party claim, action, proceeding, suit or demand arising out of or related to or in connection with any and all content contained in YOUR website once you have approved your website to go live on the World Wide Web. Should COMPANY be notified of a pending law suit, or receive notice of the filing of a lawsuit, demand or claim by any third party arising out of or related to or in connection with the warranties and representation set forth in this Agreement, COMPANY may seek a written confirmation from YOU concerning your obligation to indemnify COMPANY. Your failure to provide such a confirmation may be considered a breach of the service agreement and these supplemental terms and conditions.
5.0 LIMITATION OF LIABILITY
YOU AGREE THAT COMPANY WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY:
(A) ACCESS DELAYS OR INTERRUPTIONS TO OUR WEBSITE, DOMAIN NAME REGISTRATION SYSTEM OR WEBSITE ACCESSED BY THE DOMAIN NAME REGISTERED IN YOUR NAME
(B) SUSPENSION, LOSS OR MODIFICATION OF YOUR SERVICE(S) INCLUDING, WITHOUT LIMITATION, DOMAIN NAME REGISTRATION OR RENEWAL SERVICES
(C) USE OF THE SERVICE(S) INCLUDING WITHOUT LIMITATION DOMAIN NAME REGISTRATION SERVICES, WEBSITE DESIGN AND HOSTING SERVICES, WEBSITE CONTENT CREATION SERVICES, OR TOLL FREE TELEPHONE SERVICES
(D) INTERRUPTION OF BUSINESS
(E) THE NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR CORRUPTION OF DATA IN ANY TYPE, INCLUDING BUT NOT LIMITED TO EMAIL, FORM MAIL, AND FTP UPLOADS AND DOWNLOADS
(F) EVENTS BEYOND COMPANY’S REASONABLE CONTROL (ACTS OF GOD)
(G) THE PROCESSING OF YOUR DOMAIN NAME APPLICATION OR OTHER SERVICE APPLICATION, (H) APPLICATION OF ANY RELEVANT DISPUTE POLICY OR ANY OTHER ICANN (OR SIMILAR GOVERNMENTAL OR SUCCESSOR ORGANIZATION) ADOPTED POLICIES.
IN ADDITION, YOU AGREE THAT COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, SPECIFICALLY INCLUDING, BUT NOT LIMITED TO LOST PROFITS OF ANY TYPE, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES, BUT IN THE NO EVENT GREATER THAN $500.00
BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, COMPANY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE SERVICES ARE PROVIDED TO YOU “AS IS.” COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. WITHOUT ANY LIMITATION TO THE FOREGOING, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER THAT REGISTRATION OR USE OF A DOMAIN NAME UNDER THIS AGREEMENT WILL IMMUNIZE YOU EITHER FROM CHALLENGES TO YOUR DOMAIN NAME REGISTRATION, OR FROM SUSPENSION, CANCELLATION OR TRANSFER OF THE DOMAIN NAME REGISTERED TO YOU. WE MAKE NO WARRANTY THAT OUR SERVICE(S) WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT DEFECTS WILL BE CORRECTED. WE DO NOT WARRANT, NOR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR RESULTS OF, ANY OF THE SERVICES WE PROVIDE, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, ABILITY TO OBTAIN NEW CLIENTS, OR OTHERWISE. FURTHER, WE DO NOT WARRANT, NOR MAKE ANY REPRESENTATIONS THAT ANY NEW BUSINESS OR INCOME WILL BE FORTHCOMING TO YOU AS A RESULT OF USING COMPANY’S SERVICES.
6.0 GOVERNING LAW
The Client Service Agreement and these Supplemental Terms and Conditions shall be governed by the laws of the State of California, without regard to its conflicts of law provisions.
7.0 NO MODIFICATION/AMENDMENT/WAIVER
No modification or amendment of any provision of this agreement shall be effective unless approved in writing by the parties to the agreement. No party shall be deemed to have waived compliance by any other party with any provision of this agreement unless such waiver is in writing, and the failure of any party at any time to enforce any of the provisions of this agreement shall in no way be construed as a waiver of such provisions and shall not affect the rights of any party thereafter to enforce such provisions in accordance with their terms. No waiver of any provision of this agreement shall be deemed the waiver of any subsequent breach thereof or of any other provision of this Agreement. The continued dealing of either party with the other party following a breach of any provision hereof shall not be deemed to be a waiver of such or any other breach.
If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement.
The Parties to the Client Service Agreement and these Supplemental Terms and Conditions agree that all disputes arising from the Client Service Agreement and these Supplemental Terms and Conditions shall be submitted to binding arbitration in accordance with the rules of the American Arbitration Association for commercial disputes. Should arbitration be required, such arbitration shall be conducted in San Diego, CA.
Once your website is completed, including design and content, it will be emailed to you for your approval, under this section. If you or your agent does not respond within five business days from the date of the email then Company will deem your non-response as your approval of the website in its entirety, including design and content and your site will go live on the World Wide Web. Any changes made to either the design of your website or the content contained within your website after your website goes live will be completed at an additional charge of $125.00 per hour.
11.0 ENTIRE AGREEMENT
The service agreement along with these supplemental terms and conditions sets forth the entire agreement between the Parties in connection with the subject matter contained within the service agreement. The service agreement along with these supplemental terms and conditions, incorporates, replaces and supercedes all prior agreements, promises, proposals, representations, understandings and negotiations between the Parties or the Parties representatives in connection therewith. Lastly, YOU agree that the Client Service Agreement and these Supplemental Terms and Conditions are valid, legal and binding.