This Services Agreement (“Agreement”) is made between you (“Client”), and SaaS Ventures, LLC ("Provider"), with offices at 1012 18th Ave., Honolulu, HI 96816. Client desires to obtain website services of Provider and Provider is willing to provide such services (the “Services”) subject to the terms defined in the attached online Scope of services (the “Scope”) and the current online Rate Card (the “Rate Card”).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, representations and warranties contained in this Agreement, Client and Provider agree as follows:
1. EFFECTIVE DATE
This Agreement shall be effective as of date submitted (the "Effective Date").
2. APPOINTMENT AND SERVICES
(a) Appointment and Acceptance. Client hereby retains Provider to provide hourly fee services that Client may authorize Provider to perform pursuant to one or more separate written authorizations by Client. For the purposes of this clause, email directives are sufficient to qualify as written authorizations by Client. Client may also hereby retain Provider to provide website hosting services. Provider will perform Services in a professional and timely manner and in accordance with the standards and practices of care, skill and diligence customarily observed by similar providers under similar circumstances at the time they are rendered in accordance with all applicable state, federal and local laws, rules, regulations and orders (collectively "Legal Requirements") and in a manner that does not infringe on any intellectual property right, publicity right, privacy right or other legal right of any third party (collectively, "Third Party Rights").
(b) Compensation. As full and complete compensation for Provider’s performing the Services hereunder, Client shall pay to Provider the fee(s) as set forth in the Scope hereto in accordance with the time frame set forth therein. Client shall reimburse the Provider for all disbursements and other charges that reasonably and customarily arise in connection with the provision of the services described in the Scope within 30 days of receipt of Provider’s invoice.
(c) Services Packages. A monthly website development services package (“Package”) includes website engineering and content development services at a discount rate as noted in our Rate Card. Package discounted rates apply to all hours billed, including hours that exceed any months' minimum. Monthly minimums not used during each month are forfeited. You may change your level of Package subscription at the end of any monthly period by delivering notice in writing at least 5 business days before the end of the period.
3. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
The parties acknowledge and agree that all work-product created from the Scope performed by Provider hereunder (the “Work Product”), including reports that are created, software or website code that is written, textual content and graphic content prepared by Provider for Client, shall be considered to be a “work made for hire” and that such work-product and the intellectual property rights embodied therein are and shall become the sole exclusive property of Client. If and to the extent that Client does not originally acquire full legal ownership to the Work Product, Provider shall retain any and all intellectual property rights. At Client’s reasonable request and expense, Provider shall take, and shall cause its affiliates to take all actions requested by Client in order to protect and perfect its rights in and to the Work Product in the United States and throughout the world. Provider represents and warrants that Provider has sufficient rights in the Work Product to grant Client full rights of ownership, title and interest therein and thereto.
4. CONFIDENTIALITY
The parties may wish, from time to time, in connection with work contemplated under this Agreement, whether before or after the date hereof, to disclose to each other proprietary information, data, know-how, designs, drawings, specifications, test and research results, market studies, price or cost information, supplier or customer lists, regulatory files to the extent they are not public information by law and other similar materials ("Confidential Information"). This Confidential Information will be treated as trade secrets and held in confidence. Provider and Client will use Confidential Information only in a manner consistent with this Agreement and may not disclose any Confidential Information to any third party during the term of this Agreement or for a period of one (1) year from the date of disclosure, whichever is longer. Non-disclosure obligations stated in this section shall not apply to information that:
(a) was disclosed pursuant to written permission by Client and Provider;
(b) is already in the recipient party's possession at the time of disclosure thereof;
(c) is a part of the public domain through no fault of the recipient party;
(d) is received from a third party having no obligations of confidentiality to the disclosing party;
(e) is independently developed by the recipient party; or
(f) is required by law or regulation to be disclosed, provided that the party claiming legal obligation to disclose the Confidential Information of the party to whom the Confidential Information belongs provides prompt notice and cooperates with the party to whom the Confidential Information belongs in seeks a protective order or otherwise limiting the scope of required disclosure.
5. WEBSITE CONTENT
(a) Access. For the purposes of receiving professional development services, Client agrees to provide access to their DNS registrar and permission to communicate directly with any relevant third parties. Client acknowledges that delivery of work product may be hindered if access is not granted.
(b) Copyrights & Trademarks. Client unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Provider for inclusion in the Work Product are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify and defend Provider as noted below from any liability (including attorney’s fees and court costs), including any claim or suit, threatened or actual, asserted by a third party arising from the use of such elements furnished by the Client.
(c) Delivery. Upon final payment Provider will provide the Work Product to the Client in the form of source, rendered and asset files. These files become the exclusive property of the Client upon clearing of payments in full and Client's acceptance of delivery indicated by using the Work Product or allowing it to be publicly published. Client shall have 10 business days from delivery of Work Product to inspect and test such Work Product for compliance with the terms of this Agreement and the specifications of the Summary. If in the reasonable opinion of the Client, the Work Product does not comply with the terms of this Agreement and/or Scope, Client may request the Provider to correct such non-compliance at hourly fees noted in Scope.
(d) Client List. Provider retains the right to use Client name, logo, project description and screenshots. A link may be placed from the Provider website to the Client website and vice-versa.
(e) Domain Registration. Client is responsible for self-registering, paying for, and maintaining any and all Website Domain addresses, aka “URLs” (“Domain”). As a courtesy, the Provider may assist Client in configuring Domain settings however, the Provider is not responsible for any configurations, down time, security violations, or negative outcomes caused by Domain registration or the Domain Registrar. Client is solely responsible for renewing Domain registration.
(f) Website Hosting. Client is responsible for paying for, and maintaining any required Hosting solutions and associated services (hereafter “Hosting”). As a courtesy, the Provider may arrange for Hosting for the Client, however, the Provider is not responsible for down time, poor performance, or loss of data caused by the Hosting Provider. This includes arranging for shared premium hosting services at WPengine and other hosting locations. Additionally, Provider is not responsible for any bug caused by changes on the Host after the Acceptance of this Agreement, including but not limited to updates to operating system, compile systems, code libraries and languages, or any changes resulting from security violations. Client is responsible for renewing Domain Registry and providing SSL Certificates.
(g) Backups. Provider maintains internal backups of active project code and design files generated by Provider. This backup system is not intended as a solution for Client, and rather as a code archive through the duration of this Agreement only. While Provider's backup system is fully redundant, it is not guaranteed and does not support any content produced by the Client. Client is solely responsible for the Backup and Restoration of the Finished Product(s) and any associated data unless otherwise noted in this Agreement.
(h) Security. Although Provider makes every effort to provide a secure Work Product, due to the nature of rapidly advancing technology, Provider can in no way guarantee that the Work Product will not be subject to security breaches. Provider recommends the use of strong passwords and the observance of contemporary security practices. In order to minimize the chances of security violations, systems and passwords should be updated on a regular basis. Client is solely responsible for tracking software updates and taking necessary actions unless otherwise noted in this Agreement. Notwithstanding the foregoing, Provider shall ensure that Provider and all Provider representatives observe industry best practices with respect to the use of security practices in the development and delivery of Work Product.
(i) Limited Liability. Client alone shall be responsible for: (i) the accuracy and adequacy of information and data furnished by Client for processing; (ii) handicap accessibility including but not limited to ADA (Americans with Disabilities Act) and any other statute, code or law that requires web content be accessible to vision-impaired users, deaf users and those who must navigate by voice, screen readers or other assistive technologies; (iii) any use made by Client of the output of the website or any reliance thereon; and (iv) obtaining the required licenses and respect copyright for any and all third party assets including but not limited to fonts, media, and third-party software, provided that the foregoing responsibilities of Client shall not in any way limit the warranties and indemnification obligations of Provider set forth in this Agreement. Client shall also be responsible for the continued operation and maintenance of the computer equipment and third party software used with the Work Product, and shall comply with all operational, environmental and maintenance recommendations and requirements of the applicable licensors, vendors and manufacturers. Client agrees that any liability of Provider relating to this Agreement and the services performed shall be limited to the amount of fees actually received by Provider from the Client under this Agreement regarding the services in question. In no event shall Provider be liable for any special, incidental, indirect, cover, consequential, exemplary or punitive damages; any damages based on injury to person or property; or any lost sales, profits or data, even if Client is advised that any such damages may occur.
(j) Warranty. Provider offers support, maintenance, and bug fixing services on an hourly service basis per the current Hourly Service Rates Card. Provider represents that it will not knowingly: (i) violate any Legal Requirement; (ii) shall not infringe on any Third Party Rights; and (iii) shall not introduce any computer virus, disabling code or other harmful effect upon the Work Product. Provider, as an hourly services contractor, does not represent any warranty of any kind for Work Product.
6. HOSTING SERVICES
(a) Contracting Party and Authorized Users: If this Agreement includes Hosting Services (“Hosting”) as set forth in Scope, Client agrees to provide information of the personnel that will manage the Hosting account, but only as a reasonably necessary step to set up and maintain the Hosting Account.
(b) Provision and Use of the Services: Subject to the terms and conditions of the Agreement, if noted in Scope, Provider will provide the Hosting to Client. The Hosting may only be used in accordance with this Agreement. Client shall provide Provider with hourly fee assistance as required for Provider to activate and operate Hosting. Client acknowledges that Provider may engage third parties to provide or enable elements of Hosting. Such third parties shall be considered Provider Representatives for the purposes of this Agreement. From time-to-time the Provider may cease supporting aspects of Hosting (any such event, an “End of Life”). Should components of Hosting come to an End of Life, we will attempt to replace them with comparable components, but may not be able to do so. An End of Life is not a breach of this Agreement, but if an End of Life occurs and Provider is unable to provide replacement components reasonably satisfactory to Client within thirty (30) days thereof, Client may terminate this Agreement with respect to Hosting Services without penalty and without further payment obligation. While Provider may as a courtesy provide backup data, there is no guarantee that the backup will work properly and that the content will be completely recovered or formatted properly. Client is solely responsible for keeping a separate backup of any data that Client does not want to lose.
(c) Support: Provider may provide support (“Support”) through a variety of methods including live telephone and Contact Form on Provider's website. During Provider's interactions with Client, including while providing Support, we may solicit or you may provide feedback about Hosting. Client agrees that the Provider is free to use and disclose this feedback for any purpose. For clarity, the ownership rights in the Section apply only to Hosting products and Hosting services and do not affect Client's rights in the Work Product set forth elsewhere in this Agreement.
(d) Fees: Charges for Hosting are set forth in the Scope and are subject to change upon Provider notification. Overages may apply (e.g. exceeding the number of monthly visitors, bandwidth or storage capacity).
Website development requires bandwidth, thus the Client will be charged Hosting beginning on the Effective Date of this Agreement. Fees will be invoiced at the beginning of each month for Hosting services to be rendered during such month, and such invoices shall be immediately due and payable from Client's receipt thereof. All Fees are payable in U.S. dollars and are not refundable except as provided in this Agreement. Provider will collect the Fees by debiting the electronic payment method that Client has provided, Checks, Credit, debit, or other similar sources of payment may be debited up to one week prior to the due date. The Client must keep the method of payment current and be able to be debited. If payment is not made by or on the due date, we may charge a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly.
The Provider may be required to collect taxes on Hosting. Taxes (excluding taxes on Provider's income or attributable to Provider's employees) will be added to the Fees and Client agrees to pay them, unless Client provides Provider with a valid tax exemption certificate. If Client elects to pay via a wire transfer or credit transfer then Client is responsible for any transfer fees, which will be automatically added to the Fees.
If Client does not pay on time, Provider may suspend Hosting until such time as Client brings its account current. If the Hosting services are suspended because Provider does not receive payment, Provider will preserve Customer Content (defined below) in accordance with Provider's normal backup processes and procedures. After that time Client Content will be deleted.
(e) Proprietary Rights: Provider does not claim any ownership rights in content that Client provides to Provider in connection with Hosting (“Customer Content“). However, to provide Hosting, Provider needs Client to grant Provider a right to use the Customer Content. As such, Client hereby grants to Provider, our affiliates, providers of Third Party Services, and subcontractors a non-exclusive, fully-paid, perpetual, royalty-free, transferable, revocable, worldwide license to use, modify, publicly perform, publicly display, reproduce, and distribute the Customer Content (in whole or in part) but only to the extent necessary to provide the Hosting. Provider shall exercise reasonable care to ensure that the aforementioned parties do not use any Customer Content for any purposes other than providing the Hosting or other applicable Services under this Agreement.
(f) Hosting Term and Termination: The term of Hosting is one-month starting from the date of execution of this Agreement. Upon expiration of the Initial Term, the terms of this Agreement automatically renew for successive one month periods (each a “Renewal Term”) unless one party notifies the other in writing of its intent not to renew no later than thirty days prior to the expiration of the then-current Renewal Term or the Hosting services under this Agreement are otherwise terminated in accordance with the terms of this Agreement.
Either party may terminate Hosting services under this Agreement at any time for any reason at any time for any reason or no reason by providing the other party with 30 days’ prior written notice. Additionally, Provider may terminate this Agreement on written notice if (i) Client fails to pay for Hosting on time, (ii) Client's use of the Hosting violates the law provided in all instances that Provider has given Client a period of not less than thirty (30) days from Provider's written notice to cure such deficiency and Client has failed to do so.
Upon any termination or expiration of this Agreement Provider will stop providing Hosting. This means that Client's Content may not be available. It is the Client's sole obligation to keep separate backups and to download all Client and Customer Content prior to termination or the expiration of this Agreement.
(g) Security and Safe Harbor: Provider will maintain commercially reasonable administrative, physical and technical safeguards designed to help ensure the security of Provider's internal networks from malicious activity and to provide for the privacy, confidentiality and integrity thereof. However, security is a shared responsibility. Client agrees to configure Client's use of Hosting in such a way as to use commercially reasonable efforts to maintain the security of Provider Hosting services and network (e.g. by only uploading software that has been demonstrated to be secure, installing patches, not sharing passwords and selecting secure passwords).
Should Provider determine that there has been a security breach that has compromised Client account Provider agrees to notify Client immediately unless prohibited by law. Client agrees to the same notification obligations should Client determine that there has been a breach.
Data Controller/Data Processor. This section applies only to Clients that are located in a European Economic Area member state. Provider is the data controller for the personal data that users submit through the signup process (e.g. contact information, credit card number). For all other personal data collected through provision of Hosting (i.e. any personal data submitted through supported sites), the Client is the data processor. Where we are the data processor, we will endeavor to use such personal data only as instructed by the Client and not for any other purposes.
(h) Hosting Service Level Agreement (“SLA”): This SLA is incorporated into Hosting Terms. Terms not defined in this SLA have the definitions set out in the Agreement. The remedies set out in this SLA are not exclusive and are in addition to other remedies that Client may have under the Agreement.
(1) Service Availability: Provider will provide service availability of 99.95% (“Service Availability”), calculated on a calendar month basis. The Service Availability will be calculated as follows: [Total number of minutes Service is available in a calendar month DIVIDED BY (Total number of minutes in a calendar month LESS Excused Downtime)]
(2) SLA Credits: Client will receive a credit of one percent (1%) of Client’s monthly fee for each hour in which Provider fails to meet the Service Availability ("Downtime") for such month (“SLA Credits”). Downtime is calculated by analytic reports and is subject to Excused Downtime as defined below. In order to receive SLA Credits, Client must make a request in writing to Provider via Support or to Client’s account manager (if applicable) within thirty (30) days of the event giving rise to such SLA Credits. SLA Credits may not exceed the total amount of recurring fees Client has paid to Provider for the month in which Provider failed to meet the Service Availability, are forfeited at the expiration or termination of the Agreement, may not be aggregated, and will not be paid in cash.
(3) Excused Downtime: “Excused Downtime” means: scheduled outages or Force Majeure events; downtime caused by a non-standard environment, Client machine access, Client’s violation of the Agreement including the Acceptable Use Policy, Client authored code changes, outages during Alpha or Beta launch periods, changes to the Site or Hosting services by parties other than Client, or use that exceeds Client’s plan capacity (e.g. visitors that exceed the limit for the Client’s plan); emergency maintenance (e.g. in order to apply a patch to address a security vulnerability); and maintenance that is performed during the below schedule.
(4) Service Maintenance Times: Occasional system maintenance times are scheduled for Monday through Sunday, 10:00pm to 4:00am (Hawaii Standard Time – Honolulu, Hawaii).
(i) Acceptable Use Policy: Client agrees to not to use or allow others to use Hosting in ways that violate the law, or knowingly harm other people or Provider's network. Further, Provider has specified specific prohibited activities in this Acceptable Use Policy (“AUP”). However, due to the nature of what is acceptable use of the Internet is constantly evolving, Provider reserves the right to make changes to the AUP at any time. Provider agrees to provide Client with notice of material changes, and if they have a negative material effect on Client's ability to use Hosting Client may terminate its Agreement with Provider as to Hosting without any additional Fees.
(1) No Harmful of Illegal Content: The Client may not use Hosting to violate any local, state or federal law or regulation. In particular, Client may not violate laws prohibiting: copyright, patent, trademark or trade secret infringement, misuse or misappropriation; distribution of child pornography, child erotica, non-consensual sex acts or beastiality; illegal gambling; defamation, harassment or libel; false advertising; slander or transmission of malicious code or to gain access to other networks. Further, Client may not use Hosting in connection with any content that, as determined by court of competent jurisdiction: promotes, incites or threatens violence; contains harassing content or hate speech; is defamatory or violates a person’s privacy; infringes on another person’s copyright, trade or service mark, patent or other property right; constitutes illegal arms trafficking; or, is likely to result in retaliation against Provider's system, network or employees, including behavior that results in a server being the target of a denial of service attack.
(2) Personal Identity Protections: Client is not permitted to use or cause Hosting to store or process sensitive or otherwise regulated personally-identifiable information such as Protected Health Information (as that term is defined under the HIPAA Act), cardholder data that is protected under the PCI DSS (including, but not limited to, credit or debit card data), or other financial data (such as bank account details). While it is possible to run an e-commerce site on our platform, Client is prohibited from processing or storing credit card and other sensitive personal identity information on Provider's platform, and instead must comply with statutory requirements and identity protection best practices.
(3) No Spam: If Client uses Hosting to transmit email, Client must do so responsibly. Sending or promoting SPAM using Hosting is prohibited. Provider considers SPAM to be the transmission of any email messages that are in violation of the most recent regulations issued by the Federal Trade Commission implementing the CAN-SPAM Act or, if Client is sending emails to non-domestic end users, any foreign equivalent thereof. In addition and at Provider's discretion, Provider may place limits on the number of outbound messages Client sends if Provider's review of Client account indicates that Client is jeopardizing Provider's network stability.
(4) No Overburdening: The Client may not knowingly overburden Hosting. The Client may not place excessive burdens on Provider's, or the Provider's of Third Party Services’, CPUs, servers or other resources or knowingly interfere with the services Provider provides to other customers. The Client may not use excessive (e.g. in excess of limits set forth in Summary) bandwidth or data transfer. The Client may not use, or provide, open proxies or Internet Relay Chat using Hosting. Additionally, clients may not use Hosting for video streaming.
(5) Privacy Policy: Because Client is responsible for the data that is collected on Client's site and how such data is used, Client agrees to maintain a privacy policy that complies with applicable law and accurately reflects the data collection and use practices on Client's site. Further, if Client is subject to the European Data Directive, Client also represents and warrants that Client's privacy policy will comply therewith.
(j) Hosting Warranties: Each party represents and warrants that it has the power, authority and legal right to enter into this Agreement and to perform the obligations set out in it, and those set out in contracts incorporated by reference. Client represents and warrants that it owns or has a license for all intellectual property and other proprietary rights necessary to make the license grants to Provider contained herein. Client represents and warrants that Client's use of the Customer Content in accordance with such license strictly for the purposes contemplated herein will not infringe the intellectual property or other proprietary rights of any individual or entity. Client represents and warrants that all information it provides to Provider is complete, accurate and up-to-date. Client also represents and warrants that if it is a natural person that it is over eighteen years of age. Provider represents and warrants that the performance of Provider and all Provider Representatives with respect to Hosting: (i) do not and shall not violate any legal requirement, and; (ii) do not and shall not infringe on any Third Party Rights.
(k) Disclaimer: OTHER THAN AS IS EXPRESSLY SET OUT IN THIS SECTION AND THE SLA TERMS, HOSTING IS PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION’S WARRANTIES TERMS ABOVE, (i) PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO HOSTING, AND (ii) PROVIDER AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES RELATED TO HOSTING, INCLUDING, BUT NOT LIMITED TO: ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FOR CLARITY, THE DISCLAIMER CONTAINED IN THIS SECTION APPLIES ONLY TO HOSTING AND DOES NOT APPLY TO NON-HOSTING SERVICES RENDERED PURSUANT TO THIS AGREEMENT.
(l) Limitation of Liability and Remedies: EXCEPT WITH RESPECT TO THE CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF, OR RELATED TO, HOSTING, FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE AMOUNT OF HOSTING FEES PAID OR OWED BY CUSTOMER TO US IN THE THREE MONTHS PRECEDING THE CLAIM.
EXCEPT WITH RESPECT TO THE CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE HOSTING, INCLUDING, BUT NOT LIMITED TO, THE USE, OR INABILITY TO USE, HOSTING OR FOR ANY CONTENT, OR ANY INTERRUPTION IN HOSTING, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE DISCLAIMERS AND LIMITATIONS PROVIDED HEREIN DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
7. GENERAL LIMITATIONS
(a) Warranties: Each party represents and warrants that it has the power, authority and legal right to enter into this Agreement and to perform the obligations set out in it, and those set out in contracts incorporated by reference. Client represents and warrants that it owns or has a license for all intellectual property and other proprietary rights necessary to make the license grants to Provider contained herein. Client represents and warrants that Client's use of the Customer Content in accordance with such license strictly for the purposes contemplated herein will not infringe the intellectual property or other proprietary rights of any individual or entity. Client represents and warrants that all information it provides to Provider is complete, accurate and up-to-date. Client also represents and warrants that if it is a natural person that it is over eighteen years of age.
(b) Disclaimer: OTHER THAN AS IS EXPRESSLY SET OUT IN THIS SECTION, WORK PRODUCT AND SERVICES ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION’S WARRANTIES TERMS ABOVE, (i) PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING BUT NOT LIMITED TO THIRD PARTY PERFORMANCE AND/OR HOSTING SERVICES, AND (ii) PROVIDER AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES RELATED TO WORK PRODUCT AND SERVICES, INCLUDING, BUT NOT LIMITED TO: ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(c) Limitation of Liability and Remedies: EXCEPT WITH RESPECT TO THE CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF, OR RELATED TO WORK PRODUCT AND SERVICES, FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE AMOUNT OF HOSTING FEES PAID OR OWED BY CUSTOMER TO US IN THE THREE MONTHS PRECEDING THE CLAIM.
EXCEPT WITH RESPECT TO THE CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE WORK PRODUCT OR SERVICES, INCLUDING, BUT NOT LIMITED TO, THE USE, OR INABILITY TO USE, THE WORK PRODUCT OR SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE DISCLAIMERS AND LIMITATIONS PROVIDED HEREIN DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8. TERM AND TERMINATION
(a) Term. The term of this Agreement as it relates to services described in this Agreement shall commence on the Effective Date and continue until receipt of termination by either party via written notice.
(b) Default. In the event that either party shall be in default of any material obligation under this Agreement and shall fail to remedy such default within thirty (30) days after receipt of written notice thereof, this Agreement may be terminated upon expiration of the thirty (30) day period by the party not in default (the “Termination Date”).
(c) Client's Convenience. Client may terminate this Agreement at any time for Client's convenience upon thirty (30) days prior written notice to Provider.
(d) Termination. Termination or cancellation of this Agreement shall not affect the rights and obligations of the parties accrued prior to the Termination Date provided that Client's sole payment obligation in the event of early termination shall be to pay Provider the fees owed pursuant to the Summary for Services rendered in accordance with the terms of this Agreement and the Summary prior to the effective date of termination.
(e) Return of Materials Upon Termination. Provided that Client is not in default of any material term or condition of this Agreement, upon termination of this Agreement for any reason, Provider shall furnish to Client all completed Work Product, deliverables, work in process, incomplete work and other material embodying such work performed in connection with the provision of the Services under this Agreement.
(f) Survival of Certain Rights and Obligations. On termination or expiration of this Agreement, each party shall immediately return to the other party all Confidential Information of the other party in its possession. In addition, notwithstanding anything in this Agreement to the contrary, Sections 3, 4, 8,9 and the representations and warranties of the parties contained in this Agreement shall survive termination of this Agreement.
9. INDEMNITY
(a) Provider agrees to be responsible for its own actions and the actions of the Provider's Representatives. Provider agrees to indemnify, hold harmless and, upon Client's request, defend Client and its directors, officers, its employees and agents from and against all claims, losses, costs, fees, liabilities, damages, or injuries of any type, including reasonable attorneys' fees, in connection with, in whole or in part: (a) any negligent act, omission, or willful misconduct of Provider in the performance of this Contract, or (b) Provider's failure to comply with federal, state or local law or other Legal Requirements, or (c) any breach or term or obligation under this Agreement by Provider or any Provider Representative (including but not limited to terms related to Hosting services). Provider shall have no liability regarding any claim arising out of: (i) use of other than a current, unaltered release of any software, website or content created by Provider for Client, unless the infringing portion is also in the then current, unaltered release, and provided that Provider has made current, unaltered release of such software, website and/or content available to Client at no extra charge other than as specified in this Agreement or Summary within a reasonable period of time to transition to use the current release and Client has failed to do so, (ii) use of said software in combination with non-Provider non-Provider Representative software, website, content, data or equipment if the infringement was caused by such use or combination, (iii) any modification or derivation of the Software not specifically authorized in writing by Provider and not made to Provider or Provider Representative, or (iv) use of third party software except to the extent provided by Provider Representative. THE FOREGOING STATES THE ENTIRE LIABILITY OF PROVIDER AND THE EXCLUSIVE REMEDY FOR CLIENT RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT OR OTHER PROPRIETARY RIGHT BY ANY SOFTWARE CREATED BY PROVIDER FOR CLIENT.
(b) Except for the foregoing infringement claims, Client shall indemnify, hold harmless Provider, and at Client's option, defined Provider and its officers, agents, directors and employees from any and all claims and damages, losses or expenses, including attorney's fees, caused by any claim asserted against the foregoing indemnities by a third party arising out of a negligent or intentional, knowing or reckless breach of this Agreement by Client or any of Client's agents, employees, officers, directors, subcontractors, or suppliers. If Client elects to defend, and actually defends, any claim subject to indemnification pursuant to this paragraph, Client shall not be responsible for any attorney's fees, costs of investigation or similar expenses incurred by Provider in connection with such claim.
(c) EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS AND CONFIDENTIALITY OBLIGATIONS OF THIS AGREEMENT NEITHER PARTY TO THIS AGREEMENT NOR THEIR AFFILIATED COMPANIES, OFFICERS, AGENTS, DIRECTORS AND EMPLOYEES OF ANY OF THE FOREGOING, SHALL BE LIABLE TO ANY OTHER PARTY HERETO IN ANY ACTION OR CLAIM FOR CONSEQUENTIAL OR SPECIAL DAMAGES, LOSS OF PROFITS, LOSS OF OPPORTUNITY, LOSS OF PRODUCT OR LOSS OF USE, WHETHER THE ACTION IN WHICH RECOVERY OF DAMAGES IS SOUGHT IS BASED ON CONTRACT, TORT (INCLUDING SOLE, CONCURRENT OR OTHER NEGLIGENCE AND STRICT LIABILITY), STATUTE OR OTHERWISE. TO THE EXTENT PERMITTED BY LAW, ANY STATUTORY REMEDIES WHICH ARE INCONSISTENT WITH THE PROVISIONS OF THESE TERMS ARE WAIVED.
10. MISCELLANEOUS
(a) Applicable Law. THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF HAWAII (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN HONOLULU, HAWAII, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO AND RIGHTS TO TRANSFER VENUE THEREFROM.
(b) Independent Contractor Relationship. This Agreement does not make either party the employee, agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. In fulfilling its obligations pursuant to this Agreement Provider will be acting as an independent contractor. Provider shall be solely responsible for withholding and timely payment of all required taxes related to Provider's employees and business operations. Nothing herein entitles Provider, and employee of Provider or any Provider Representative to participate in any benefits plan made available by Client to Client's employees.
(c) Arbitration. The parties agree to submit any dispute arising out of or in connection with this Agreement to binding arbitration in Honolulu, Hawaii before the American Arbitration Association pursuant to the provisions of this Section, and, to the extent not inconsistent with this Section, the rules of the American Arbitration Association. The parties agree that such arbitration will be in lieu of either party's rights to assert any claim, demand or suit in any court action, provided that either party may elect either binding arbitration or a court action with respect to a breach by the other party of such party's proprietary rights, including without limitation any trade secrets, copyrights or trademarks. Any arbitration shall be final and binding and the arbitrator's order will be enforceable in any court of competent jurisdiction.
(d) Unforeseen Circumstances. No delay or failure by the parties hereto in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement nor shall it create any liability, if the same shall arise by reason of any cause beyond the reasonable control of the affected party, including, but not limited to, labor disputes, strikes, wars, riots, insurrection, civil commotion, accident, shortage of materials or equipment, government regulations, fire, flood, storm, or any other acts of God, including defects and/or breakdowns of equipment and programming errors not within the reasonable control of the affected party, provided that the party so affected shall use its best efforts to avoid or remove such cause of nonperformance and shall continue performance hereunder as soon as practicable. Failure of a Provider Representative shall not be considered a cause beyond the reasonable control of Provider. If an event described in the paragraph affects Provider's ability to perform hereunder for a period of fifteen (15) consecutive days or more, Client may terminate this Agreement upon written notice to Provider.
(e) Other. This Agreement, including the Scope (which Scope is hereby incorporated as an integral part of this Agreement), constitutes the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all previous proposals, oral or written, and all negotiations, conversations, or discussions heretofore had between the parties related to this Agreement. No Agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties, except as otherwise expressly provided in this Agreement.
The parties have caused this Agreement to be executed as of the date of submission.
