Skaggs Web Services - Terms and Conditions

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WHEREAS, Host is in the business of offering Internet services relating to, among other things, hosting of sites on the World Wide Web portion of the Internet and is willing to provide services to Client on the terms and subject to the conditions set forth below; and

WHEREAS, Client desires to engage Host, and Host desires to be engaged by Client, to provide such Internet services on the terms and subject to the conditions set forth below.

NOW, THEREFORE, in consideration of the mutual promises set forth herein, Host and Client (the "Parties") hereby agree as follows:

1. Services       

Host agrees to provide Client with services for hosting of a site on the World Wide Web portion of the Internet (the "Web Site") as set forth or described in this agreement hereto (the "Hosting Services"). Host shall provide the Hosting Services so that the Web Site is accessible to third parties via the World Wide Web portion of the Internet as specified herein. Except as expressly provided herein, Client agrees that Host is responsible only for providing the Hosting Services, and Host is not responsible for providing any services or performing any tasks not specifically set forth in this Agreement. At the time of execution of this Agreement, to the extent that Client wishes to receive from Host, and Host wishes to provide to Client, services other than the Hosting Services such as, by way of example only, services relating to list serves, gopher, FTP, or e-mail, (collectively, the "Additional Services"), such Additional Services and the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties (the "Services Addendum"), and the Services Addendum shall be incorporated into, and become a part of this Agreement. (The Hosting Services and the Additional Services will hereinafter be referred to collectively as the "Services").

Client shall provide to Host all materials comprising the Web Site, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text (the "Client Content"), which shall be in a correct format (as specified by Host in consultation with Client), including, but not limited to, HTML format. The Client Content shall be properly adapted and translated by Client for posting to the Host server (the "Host Server") so that the Web Site may be accessed via the Internet. 

Unless otherwise indicated on this Agreement hereto, the Web Site shall be accessible to third parties via the World Wide Web portion of the Interact twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Hosting Services due to causes beyond the control of Host or which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Inter-net slow-downs or failures. In the event of any loss or interruption of Hosting Services, Client's sole and exclusive remedy and Host's sole and exclusive liability for any loss or interruption of Hosting Services shall be as follows: for loss or interruption of Hosting Services which is due to (I) causes other than scheduled maintenance and required repairs, or (ii) causes beyond the control of Host, or (iii) causes which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, which loss or interruption of Hosting Services exceeds a continual period of twenty-four (24) hours, Client shall receive a credit against future Hosting Services equal to a pro rata portion of Hosting Services fees for the period of downtime (which shall be a pro rata portion of the Hosting Services fees for the number of  year(s) of Hosting Services).

As part of the initial Hosting Services, Client shall provide Host with a registered domain name, or Host shall register the domain name(s) selected by Client provided that such domain name is available for registration and does not violate any InterNIC or other registration services' policies, or any law or regulation. Client agrees to promptly reimburse to Host any fees paid by Host to InterNIC or other registration services with respect to the registration and maintenance of such domain name.

In the event of any dispute or cause of action arising out of or related to Client's domain name used in connection with the Web Site, upon Client's request Host will attempt to register with InterNIC an alternative domain name chosen by Client and attempt to make the Web Site available over the Internet under such alternative name for an additional fee to be charged to Client pursuant to the fee and payment schedule set forth in This Agreement hereto.

In the event that the Web Site requires storage and transfer on the Host Server which exceeds the amount of storage included in the Hosting Services, Client may, upon 30 days written notice to Host, request that Host (a) upgrade the level of Hosting Services, or (b) acquire additional incremental storage to be included in the Hosting Services, on a time and materials basis and in accordance with the fee and payment schedule in This Agreement hereto. Host shall review all such requests and determine, in consultation with Client, whether it can reasonably comply with such requests and, if so, Host shall propose a procedure and budget for complying with such request.

As part of the Hosting Services, Host shall provide Client with a system and the necessary software to allow Client to transmit revisions, updates, deletions, enhancements or modifications (the "Updates") to a staging server designated by Host (the "Staging Server"). Host shall update the Host Server with the Updates according to a schedule agreed upon by the Parties, in writing, provided that (I) Client is not in default of its payment obligations hereunder, (ii) such Updates are within the scope of the Hosting Services under this Agreement; and (iii) such Updates are in a form which may be placed on the Host Server and accessed over the Internet. If the Updates are not within the scope of the Hosting Services under this Agreement, such Updates shall not be made unless and until the Parties enter into a Services Addendum setting forth the terms and conditions of such Updates.

2. License and Proprietary Rights

As between Client and Host, Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Except as provided in this Section 2.1, nothing in this Agreement shall be construed to grant Host any ownership right in, or license to, the Client Content provided by Client to Host. Client hereby grants to Host a non-exclusive, worldwide, royalty-free license for the Initial Term and any Renewal Term (as those terms are hereinafter defined) to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Client Content as necessary to render the Services to Client under this Agreement.

All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Host or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by Host to provide the Services to Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively "Host Materials") shall remain the sole and exclusive property of Host or its suppliers. To the extent, if any, that ownership of the Host Materials does not automatically vest in Host by virtue of this Agreement or otherwise, Client hereby transfers and assigns to Host all rights, title and interest which Client may have in and to the Host Materials. Client acknowledges and agrees that Host is in the business of designing and hosting Web sites, and that Host shall have the right to provide to third parties services which are the same or similar to the Hosting Services, and to use or otherwise exploit any Host Materials in providing such services.

Each Party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other Party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data ("Confidential Information"). Confidential Information shall not include information that the receiving Party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party, (b) was known to the receiving Party as of the time of its disclosure, (c) is independently developed by the receiving Party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each Party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each Party and its employees shall survive the expiration or termination of this Agreement.

3. Client Content

Client assumes sole responsibility for (a) acquiring any authorization(s) necessary for hypertext links to third party web sites, (b) the accuracy of materials on the Web Site, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (c) ensuring that the Client Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Host reserves the right, in its sole discretion, to exclude or remove from the Web Site any hypertext links to third party web sites, any Client Content on the Web Site, or other content not supplied by Host which, in Host's sole reasonable discretion, may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes Host to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on Host to monitor or exert editorial control over the Web Site.

Client shall place and cause to be placed on the Web Site Client Content that does not contain any content or materials which are obscene, threatening, malicious, which infringe on or violate any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right, or which otherwise exposes Host to civil or criminal liability. Any such materials placed on the Web Site which do not satisfy the foregoing requirements shall be deemed to be a material breach of this Agreement. 

Chat rooms, bulletin boards and discussion forums shall not be in-eluded in the Web Site and may not be implemented by or on behalf of Client without prior written approval of Host.

4. Fees and Taxes

Client shall pay Host all fees for the Hosting Services in accordance with the applicable fee and payment schedule set forth in This Agreement hereto. Host expressly reserves the right to change its rates charged hereunder for the Services during any Renewal Term (as defined herein).

Unless otherwise agreed in writing, Client shall pay to Host all fees for Additional Services on a time and materials basis as invoiced by Host.

Client shall pay, or promptly reimburse Host for, any out-of-pocket expenses, including, without limitation, travel and travel-related expenses, incurred by Host in connection with the performance of the Services.

Client shall pay Host all fees specifically itemized on given invoice's by the posted due date. If Client fails to pay any fees within the invoice's due date according to this agreement, or within the given grace period of 10 days after due date of an invoice, where applicable, late charges of $5.00 per month per invoice or the maximum allowable under applicable law shall also become payable by the client to Host. In addition, failure of Client to fully pay any fees within 30 days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by Host, and will be sufficient cause for immediate termination of this Agreement by Host. Any such suspension does not relieve Client from paying past due fees plus interest is applicable and in the event of collection enforcement, Client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys' fees, court costs and collection agency fees.

Client shall pay or reimburse Host for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Host under this Agreement; excluding, however, income taxes on profits which may be levied against Host. 

5. Warranties

Host represents and warrants that (a) Host has the power and authority to enter into and perform its obligations under this Agreement, and (b) Host's Services under this Agreement shall be performed in a workmanlike manner.

Client represents and warrants that: (a) Client has the power and authority to enter into and perform its obligations under this Agreement; (b) Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the Web Site; and (c) Client has obtained any authorization(s) necessary for hypertext links from the Web Site to other third party Web sites. Should Client receive notice of a claim regarding the Web Site, Client shall promptly provide Host with written notice of such claim.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, HOST MAKES NO WARRANTIES HEREUNDER, AND HOST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

6. Indemnification

Client agrees to indemnify, defend, and hold harmless Host, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim that: (I) if true, would constitute a breach of any of Client's representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the Web Site 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.

Host agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action arises out of the gross negligence or willful misconduct of Host.