In consideration of the terms, and conditions of this Agreement, and other valuable consideration, the receipt of which is acknowledged, the parties agree that the Provider will provide certain services to the Client according to the following provisions:
SCOPE OF SERVICES
The Provider will supply web hosting services to the Client subject to the terms and conditions of this Agreement. The Provider reserves the right to review and reject any aspect of web site coding supplied to it by the Client for use on the web site to be hosted.
All information on the server is backed up at the local data center daily and backed up off site at least once a week.
TERM OF CONTRACT
The term of this Agreement will be for one year from the date of this Agreement. The term will be automatically extended for additional one year terms, unless terminated by one of the parties by written notice at least thirty days before the expiration of the term.
PRICE and PAYMENT
The Client will pay the Provider for the web hosting at the beginning of each successive billing term (monthly, quarterly or annually).
This Agreement may be terminated at any time by either party with or without cause, by giving thirty days written notice to the other.
The Provider is not responsible for problems which may occur as a result of any incompatibility between the Client’s software and any other software on the server or hardware, nor for the performance of any software not programmed by the Provider. The Client is responsible for updating any software they have installed or developed. The Provider cannot guarantee uninterrupted service or the correction of any errors outside of the Provider’s control, such as the Peak 10 data center having problems. The Provider is not responsible for interruptions in service or the fraud of third parties. However, if the Client’s hosting service is interrupted for a period equal to or greater than 24 hours, the Provider will refund that entire month’s payment to the Client.
The Client expressly acknowledges and agrees that use of the web hosting is at the Client’s sole risk. No oral or written information or advice given by the Provider or one of its representatives will create a warranty or in any way increase the scope of this warranty.
Except as specifically provided above, the Project and related material are provided “as is” without warranty or condition of any kind, including but not limited to the implied warranties or conditions of merchantable quality and fitness for a particular purpose. The Provider does not warrant that the operation of the Project will be error free.
IN NO EVENT WILL THE PROVIDER BE LIABLE TO THE CLIENT OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. THIS LIMITATION AND EXCLUSION APPLIES IRRESPECTIVE OF THE CAUSE OF ACTION, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR ANY OTHER LEGAL THEORY AND WILL SURVIVE A MATERIAL BREACH.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO THE CLIENT. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OF THE FINAL PROJECT. THIS WARRANTY GIVES THE CLIENT SPECIFIC LEGAL RIGHTS, AND THE CLIENT MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
DEFAULT and REMEDIES
If the Client fails to pay as agreed, the Provider will be relieved of its obligation under this Agreement and will be entitled to close down the hosted web site.
The waiver by either party of any breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach of that same or any other provision. In the event of a material breach of this Agreement by either party, the sole remedy of the other party will be one of the following:
(a) Terminate this Agreement and bring such action as it may deem proper to protect its rights under this Agreement.
(b) Bring an action for injunctive or similar relief as may be necessary to compel the other party’s compliance with its obligations under this Agreement.
(c) Pursue such other remedies as may be available to it subject to the terms of this Agreement.
The Client specifically waives the right to claim recovery from the Provider for any incidental or consequential damages, including but not limited to lost revenues. In the event of a default by either party of its obligations under this Agreement, the other party may employ an attorney to enforce its rights and remedies and the parties both hereby agree that the party found to have breached the Agreement will pay the reasonable attorneys fees plus all other reasonable expenses incurred by the prevailing party in exercising any of its rights and remedies upon default.
It is the practice of the Provider to review the identity and mission of all of its clients periodically to assure that no conflicts arise from overlapping service areas or client bases. No information discovered within the client relationship will be disclosed to other clients or third parties, without the express consent of the interested client.
The Provider agrees that it will take all reasonable actions to maintain complete confidentiality of all information supplied to it by the Client. It will not disclose any information to third parties without specific instructions from the Client, unless the Provider is compelled to do so by proper legal action of a third party or government entity.
Neither party will be held responsible if the fulfillment of any terms or provisions of this contract are delayed or prevented by revolutions or other disorders, wars, acts of enemies, strikes, fires, floods, acts of God, or without limiting the foregoing, by any other cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence, the party is unable to prevent, whether of the class of causes hereinbefore enumerated or not.
This Agreement signed by both parties constitutes a final written expression of all the terms of this Agreement and is a complete and exclusive statement of those terms. It may not be changed orally, but only by an agreement in writing, signed by all parties hereto.
No right or interest in this Agreement will be assigned by either party without the written permission of the other party, and no delegation of any obligation owed by either Transferor or Transferee will be made without the written permission of the other party. Any attempted assignment or delegation will be wholly void and totally ineffective for all purposes. This Agreement will bind and inure to the benefit of the respective heirs, personal representatives, successors, and assigns of the parties, should an assignment be made pursuant to this Agreement.
The titles to the paragraphs of this Agreement are solely for the convenience of the parties and will not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this agreement.
This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will constitute one agreement.
EFFECT OF PARTIAL INVALIDITY
The invalidity of any portion of this Agreement will not and will not be deemed to affect the validity of any other provision. In the event that any provision of this Agreement is held to be invalid, the remaining provisions will be in full force and effect as if they had been executed by both parties subsequent to the invalidation of the provision.
This Agreement will be governed by, construed, and enforced in accordance with the laws of the State of North Carolina. The parties hereby consent to the jurisdiction of the courts in the State of North Carolina. Any legal action arising out of this Agreement will be brought in North Carolina according to the jurisdictional requirements of the North Carolina Rules of Civil Procedure as amended from time to time.
Any notice required by this Agreement will be in writing and may be delivered by personal delivery, postage prepaid, certified mail return receipt requested, or electronic mail return receipt requested. Notices will be deemed given upon receipt by the recipient by either U.S. Mail or electronic mail.