THIS CLIENT AGREEMENT (THE “AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH TECHVUDU, LLC™. D/B/A CLOUDVUDU™ , REMOTEVUDU™ , GRAPHICVUDU™ , WEBSITEVUDU™, PCVUDU ™ NETVUDU™ , TECHVUDU™ (“TECHVUDU”) WILL ASSIST YOU IN THE CREATION, OPERATION AND HOSTING OF YOUR WEBSITE(S). PLEASE READ THE TERMS CAREFULLY. BY SIGNING OR ACCEPTING ANY TECHVUDU AGREEMENT, ORDER FORM OR OTHERWISE THAT IS CONTINGENT UPON THE ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, YOU WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE “YOU” OR “YOUR” WILL REFER TO YOUR ENTITY. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, THEN TECHVUDU IS UNWILLING ENTER INTO THIS AGREEMENT AND TO ASSIST YOU IN THE CREATION, OPERATION AND HOSTING OF YOUR WEBSITE(S).
THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE.
Effective Date: January 1, 2011
- ACCEPTANCE OF AGREEMENT AND AMENDMENT PROCEDURES
This Agreement will become effective upon the execution hereof and the final acceptance by TechVudu™ of any Order form (defined below). Final acceptance by TechVudu™ may be conditional upon You completing specified requirements including, but not limited to, making initial payments to commence work, successfully passing a credit check and/or accepting the scope of Services (defined below) to be provided. TechVudu™ reserves the right to reject any order form, agreement or otherwise for any reason prior to its final acceptance by TechVudu™.
TechVudu™ reserves the right to modify this Agreement at any time, and without prior notice, by posting an amended Agreement at http://www.TechVudu.com/legal. You are encouraged to print any amended agreement and to retain it with Your records.
A listing of material changes to this Agreement and their effective dates is provided at http://www.TechVudu.com/legal in the section labeled “Notice of Material Change To Client Agreement”.
Your continued use of any services or offerings provided by TechVudu™ indicates Your acceptance of the amended Agreement. You should refer back to this Agreement through the above links periodically for amendments and their effective dates.
This Agreement consists of the following: (i) this Client Agreement, (ii) any Order executed by You and accepted by TechVudu™, (iii) any Addendum which is attached to this Client Agreement, and (iv) any amendments to this Client Agreement which are made in accordance with the immediately preceding paragraph.
- DESCRIPTION OF SERVICES
TechVudu™ provides website software, consulting services and hosting services (collectively, the “Services”) which include;
- developing and utilizing software and software documentation for the purpose of designing, deploying, operating and maintaining websites (specifically, the “Software”),
- providing web consulting services that include the development and design of websites, website features and website functionality, training, support and other services utilized in the development, deployment, operation, maintenance and support of websites (specifically, the “Website Services”) and
- providing web hosting services that include the hosting of websites by TechVudu™ (specifically, the “Hosting Services”).
Unless explicitly stated otherwise, any new features, options, resources or offerings that augments or enhances the current Services shall be subject to the terms of this Agreement
The exact type, features, options, scope, duration, price and/or terms of the Services being provided to You will be specified in an order form, order scope or the like provided by TechVudu™ and accepted by You and TechVudu™ (the “Order”). ALL SERVICES PROVIDED BY TechVudu™ REQUIRE A VALID ORDER AND, NOTWITHSTANDING THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE BOUND BY ALL SUCH TERMS AND CONDITIONS SPECIFIED IN THE ORDER.
In order to use the Services, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any fees associated with such access. You are responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for Your access to and use of the Services, and for all related fees. You are responsible for obtaining, maintaining and paying all related fees for a valid domain name and, when You are using the website for conducting transactions, You are responsible for obtaining, maintaining and paying all related fees for a TechVudu™ approved gateway and merchant account for handling such transactions.
Services Eligibility – Services are not available to minors under the age of 18 years of age.
- INTELLECTUAL PROPERTY AND OWNERSHIP
Intellectual Property – All computer programs and other technology utilized by TechVudu™ to provide the Services are owned by TechVudu™ or its licensors, and You do not acquire any ownership interest therein. You shall not (i) tamper with, copy, merge, decompile, or disassemble any such computer programs and other technology (ii) nor shall You disclose, share, or transmit any identification or password code provided by TechVudu™ with any third party without the express written consent of TechVudu™. Any rights granted to You to use such computer programs and other technology is solely for the purpose described herein and for no other purpose or use.
TechVudu™ shall be deemed the sole author and owner of all Common Gateway Interface, Hyper Text Markup Language code, Java script, Perl script, Visual Basic script, ASP script and any other code or programming acquired, created, developed or learned by TechVudu™ during the course of providing the Services, whether at the instance of TechVudu™ or as customization or other copyrightable authorship requested by You. You hereby assign to TechVudu™ any and all rights, title and ownership interests which You may have in any works of authorship developed in conjunction with TechVudu™ during the course of providing the Services and will not attempt to prohibit or enjoin TechVudu™ at any time from utilizing any skills, knowledge, technical expertise, product or feature enhancements or any other information acquired, learned or developed during the course of providing the Services.
Proprietary Marks – TechVudu™, and other TechVudu™ product and service names, and all of their related logos, are each proprietary trademarks of TechVudu™ (the “TechVudu™ Marks”). Without TechVudu™’s prior written permission, You agree not to display or use in any manner the TechVudu™ Marks, except as provided for elsewhere within this Agreement.
- DEFAMATION; COMMUNICATIONS DECENCY ACT NOTICE
TechVudu™ is a provider of “interactive computer services” under the Communications Decency Act, 47 U.S.C. Section 230, and as such, TechVudu’s liability for defamation and other claims arising out of any postings by third parties to any TechVudu™ hosted, operated or maintained website is limited as described therein. TechVudu™ is not responsible for content or any other information posted to such websites by third parties. TechVudu™ neither warrants the accuracy of such postings nor, nor assumes any legal obligation or liability in connection with such postings, including any responsibility or liability for investigating or verifying the accuracy of any content or any other information contained in such postings.
- CONTENT OF WEBSITE
You shall be considered the sole and exclusive author and owner of Your website domain name, Your uniform resource locator, if any, and any graphics, text or data provided to TechVudu™ or uploaded by You for use in the website (the “Content”), and TechVudu™ shall acquire no rights therein.
You acknowledge that TechVudu™ is not an editor or publisher of Your Content and that TechVudu™ has no responsibility for screening, policing, editing, or otherwise monitoring Your Content. Notwithstanding the forgoing, TechVudu™ reserves the right at TechVudu™’s sole discretion to refuse to use or to remove any of Your Content (i) for which You are not able to verify ownership or Your rights of use to the satisfaction of TechVudu™, or (ii) which, in the judgment of TechVudu™, is inappropriate or suspect under applicable laws.
You agree that TechVudu™ shall be entitled to the maximum protection allowed by law, including, without limitation, 17 U.S.C. § 512.
Charges – General – You shall pay to TechVudu™ all fees and other specified payments (the “Charges”) for Website Services and Hosting Services in accordance with this Agreement and Your Order. All payments for Charges shall be made in U.S. Dollars. In all cases, payments for Charges are due on the dates specified in Your Order. All Website Services and Hosting Services are provided by TechVudu™ on a non-refundable basis. You shall be liable for all amounts payable to TechVudu™ hereunder, and all such payment obligations shall survive the expiration or termination hereof. In addition to any other remedies that may be available to TechVudu™ under this Agreement (including without limitation, in connection with the termination of this Agreement) or applicable law, Charges that are not paid in full by the dates specified on Your Order will be subject to the following:
- Website Services Charges – TechVudu™ will immediately cease all WEBSITE Services and other related work on Your website if any Service Charges are not paid in full by the dates specified on Your Order. If Website Services Charges are paid in full within fifteen (15) days after the payment due date, TechVudu™ will re-commence Website Services and all future Website Services Charges shall be due per the original terms and dates of Your Order. Website Services Charges that are not paid in full within fifteen (15) days after the payment due date shall be subject to an additional late fee equal to the greater of $200.00 or five (20) percent of the past-due Website Services Charge. Website Services Charges that are not paid in full within thirty (30) days after the payment due-date shall be in default (“Payment Default”) and subject to the Payment Default terms stated in this Agreement.
- Hosting Services Charges – Hosting Services Charges that are not paid in full within fifteen (15) calendar days after the payment due date shall be subject to an additional late fee equal to the greater of $50.00 or ten (15) percent of the past-due Hosting Services Charge. Hosting Services Charges that are not paid in full within thirty (30) days after the payment due-date shall be in default (“Payment Default”) and subject to the Payment Default terms stated in this Agreement. All Hosting Services that are in Payment Default MAY be immediately terminated by TechVudu™ and Your website MAY be removed from TechVudu’s servers.
Payment Default – For Charges in Payment Default, TechVudu™ reserves the right to use self-help to the greatest extent permitted by law, including, but not limited to, electronic remedies to obtain such Charges and any related fees. You also shall pay to TechVudu™ all expenses incurred by TechVudu™ in exercising any of its rights under this Agreement or applicable law with respect to the collection of a Payment Default, including without limitation, reasonable attorneys’ fees and the fees of any collection agency retained by TechVudu™.
Accelerated Delivery Premiums – TechVudu™ may offer, as an option and for a fee, to expedite, rush or otherwise accelerate the delivery of certain of its Services in Your Order (the “Accelerated Delivery Premiums”). All Accelerated Delivery Premiums will be indicated on Your Order and will provide (i) an estimate as to the cumulative number of days until completion for the accelerated delivery of Services (“Accelerated Delivery Days”) and (ii) an estimate as to the cumulative number of days until completion for the normal delivery of Services (“Normal Delivery Days”). If TechVudu™ completes the Services within the Accelerated Delivery Days, You shall be charged and are responsible for payment in full of the Accelerated Delivery Premiums. If TechVudu™ does not complete the Services within the Accelerated Delivery Days but does complete the Services within the Normal Delivery Days, You shall be charged and are responsible for payment of a prorated amount of the Accelerated Delivery Premiums equal in percent to the number of days in advance of the Normal Delivery Days divided by the number of days difference between the Normal Delivery Days and the Accelerated Delivery Days. If TechVudu™ does not complete the Services within the Normal Delivery Days, You shall not be charged and are not responsible for any Accelerated Delivery Premiums.
Accelerated Delivery Days and Normal Delivery Days only include those days outlined in Your Order that are directly under the control of TechVudu™ and exclude, without exception, any days under Your control including, but not limited to, the creation of Content by You, Your approval of work completed and other activities based upon Your involvement. You acknowledge and agree that neither Accelerated Delivery Days nor Normal Delivery Days constitute a performance guarantee, or any other type of warranty or guarantee, and the failure of TechVudu™ to complete Services within either Accelerated Delivery Days or Normal Delivery days does not constitute a breach of the Agreement and that in such an event You will continue to be bound in full by the terms and conditions of the Agreement.
Pass Through Items and Other Expenses – TechVudu™ shall have the right at any time during any term of this Agreement to pass through and invoice to You any new or increased fees, assessments, taxes or other charges imposed on or required to be collected by TechVudu™ by any governmental agency or any new or increased charges by any carrier that affect TechVudu™’s costs in providing the Services to You. You also will be responsible for paying any sales, license and use taxes, fees, or assessments levied by any local, state or federal government or governmental agency with respect to the provision of Services under this Agreement. You will pay and be solely responsible for all taxes, fees and charges levied directly upon You.
Changes in Charges – Except as provided elsewhere in the Agreement, the prices and fees charged by TechVudu™ for its Services are only applicable for the Services or dates of Services specified in Your Order. TechVudu™ will have the right, upon notice required by applicable laws, to change the amount or basis for determining any fee or charge or institute any new fees or charges for any new, incremental or additional Services or Orders. Upon the Automatic Renewal of Hosting Services, as provided in Section 10, TechVudu™ will have the right, upon thirty (30) days notice and subject to applicable laws, to change the amount or basis for determining any fee or charge or institute any new fees or charges for Hosting Services.
Software – TechVudu™ grants You a personal, non-transferable, non-exclusive and revocable license to use TechVudu’s Software for the sole purpose of operating and maintaining Your website as provided by TechVudu’s Service and Hosting Service, provided that You do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software or any portion of the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Software. You agree not to access the Software by any means other than through the interface that is provided or authorized by TechVudu™ for use in accessing the Software. You may not use web pages or parts of web pages generated by means of the Software, other than Content that originates from and is proprietary to You, on any server other than the servers controlled by TechVudu™ without TechVudu™’s express written consent. TechVudu™ reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to You. If any revision or modification to the Software materially changes Your ability to conduct business or to use Your website, Your sole remedy is to cancel Your Services.
Third Party Software. With respect to any elective, additional software that may be made available by TechVudu™ in connection with the Software, if You elect to download or access such additional software, You acknowledge that You may have to agree to additional terms and conditions before You may use such software.
- WEBSITE SERVICES
Website Services – TechVudu™ shall provide to You the Website Services defined in Your Order in accordance with the terms and conditions hereof and the applicable Order. In the event of any inconsistency or conflict between this Agreement and any Order, the Agreement shall control.
Website Services Contact – You shall designate one individual as Your principal contact for communicating with TechVudu™ regarding the Website Services. You agree that any decisions made by the Contact with regard to the Website Services provided hereunder are binding upon You. You may change Your principal contact by written notice to TechVudu™.
Cooperation – You acknowledge that Website Services may be dependant on You providing certain data, information, or assistance (the “Cooperation”), and (ii) that such Cooperation may be essential to the performance of Website Services by TechVudu™. The parties agree that any delay or failure by TechVudu™ to provide Website Services hereunder which is caused by Your failure to provide timely Cooperation reasonably requested by TechVudu™ shall not be deemed to be a breach of TechVudu™’s performance obligations under this Agreement. Furthermore, the parties agree that if You fail to provide timely Cooperation within 180 days of written request for such Cooperation, TechVudu™ shall have the right to provide You written notice of such failure and, within thirty (30) days of notice of such failure, You shall either provide all requested Cooperation or, in the event You do not provide all requested Cooperation, You shall be deemed to have elected Termination by Convenience, as provided in Section 11, and subject to Termination by Convenience terms stated in this Agreement.
Progress Reports – TechVudu™ shall provide to You reports as You may reasonably request in writing from time to time regarding the progress of the work required by the Order, any anticipated problems (resolved or unresolved), and any indication of delay in estimates.
Changes – Any change requested by You in the scope of Website Services specified in an Order must be agreed to by TechVudu™ in writing. Such changes may require modification of fees charged and/or delivery estimates.
Order Completion – Within five (5) days following receipt of notice from TechVudu™ of completion of Your Order, You shall review and test the website and advise TechVudu™ of Your acceptance of the website or provide TechVudu™ in a written form one (1) all-encompassing and specific list of any modifications required to the website to meet the terms of Your Order. You shall be deemed to have accepted the website and it shall be deemed to be complete (the “Order Completion”) (i) upon receipt by TechVudu™ of written notification by You of acceptance, or (ii) the failure of You to provide TechVudu™ in a written form one (1) all encompassing and specific list of any modifications required to the website to meet the terms of Your Order within five (5) days receipt of notice of completion. Upon acceptance or the successful completion of the modifications requested and agreed to by TechVudu™, the website shall be deemed to be complete.
Website Services Delivery Guarantee – TechVudu™ may provide You with estimates as part of Your Order reflecting the number of cumulative days of work TechVudu™ expects it will require to deliver its Website Services (the “Website Services Delivery Estimate”). The Website Services Delivery Estimate is EXCLUSIVE of days requiring effort, work, response, or input by You OR ANY OTHER THIRD PARTIES. If TechVudu™ exceeds the Website Services Delivery Estimate by 30 days or more, TechVudu™ will provide you with Hosting Services at no charge for a period of time equal to the number of days past the Website Services Delivery Estimate until actual Order Completion. You acknowledge and agree that (i) the no-charge Hosting Services will be applied immediately upon Order Completion, (ii) the term of Your Hosting Services detailed in Your Order will begin after the no-charge Hosting Services and will continue for the term length detailed in Your Order and (iii) THE NO-CHARGE HOSTING SERVICES IS YOUR SOLE AND EXCLUSIVE REMEDY IF TechVudu™ DOES NOT DELIVER ITS WEBSITE SERVICES WITHIN 30 DAYS AFTER THE WEBSITE SERVICES DELIVERY ESTIMATE. Furthermore, you acknowledge and agree that the failure of TechVudu™ to complete Website Services within 30 days after the Website Services Delivery Estimate does not constitute a breach of the Agreement, and if TechVudu™ does not complete Website Services within the 30-day period, You will continue to be bound in full by the terms and conditions of the Agreement.
Third Party Web Browsing Software Interoperability – Subject to the conditions herein, TechVudu™ will develop the publicly accessible pages of Your website to be interoperable, as determined by TechVudu™ at the time of Order Completion, with the then current version of any third party web browsing software that (i) has been released in the 3 years prior to Order Completion and (ii), as determined by TechVudu™, has greater than a one percent market penetration in the United States. Interoperability will be determined solely by TechVudu™ using its equipment, hardware and software and shall not apply to tools or features in the Software used for the management, operation or maintenance of the website. You acknowledge and agree that (i) third party web browsing software changes frequently, (ii) that such changes may affect the future interoperability of Your website with such software, (iii) and that, as an option and for a fee, TechVudu™ may provide additional Services to provide for future interoperability of Your website with such software.
Search Engine Rankings – You acknowledge and agree that TechVudu™ does not offer, guarantee or otherwise provide for Your website’s inclusion in or ranking with any third party search engines. Furthermore, You acknowledge and agree that any inclusion in or ranking with any third party search engines previously obtained or achieved by any website not designed and hosted by TechVudu™ may materially change if such websites are subsequently hosted by TechVudu™.
Co-Branding – All websites developed by TechVudu’s Service shall display, at TechVudu’s option, a “powered by TechVudu™” line, logo or other graphic or phrase with a similar meaning. TechVudu™ may elect, at its sole discretion, to offer You the option to remove such display for an additional fee.
You hereby grant to TechVudu™ the right to publicly perform and display any website developed by TechVudu™ for the purposes of marketing and advertising TechVudu’s products and services.
- HOSTING SERVICES
Hosting Service – Subject to the terms and conditions of this Agreement, TechVudu™ shall attempt to provide the Hosting Service for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. You acknowledge and agree that from time to time the Hosting Service may be inaccessible or inoperable for any reason, including, without limitation: (i) repair, maintenance or improvement procedures or repairs that TechVudu™ may undertake at its own discretion; (ii) equipment malfunctions; or (iii) causes beyond the control of TechVudu™ or that are not reasonably foreseeable by TechVudu™ , including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures. You agree that TechVudu™ has no control of availability of the Hosting Service on a continuous or uninterrupted basis and that You shall not be entitled to any discount, refund or other credit for interruptions to the Hosting Service. You are responsible for all expense associated with maintaining its internal network, software, browsers and Internet connections sufficient to access the Hosting Service.
TechVudu’s Hosting Service is provided exclusively for websites developed with TechVudu’s Software and Service and shall be stored, provided and accessed on TechVudu’s equipment, hardware and/or Internet servers. You hereby grant to TechVudu™ all rights which may be necessary to provide the Hosting Service including, but not limited to, accessing and monitoring use of the website without notification, receiving and/or storing commands or data transmitted to and/or from the website by Internet users, transmitting web page data and storing, displaying and/or transmitting any other related or necessary data or information.
Protection of Information – You are solely responsible for preventing password-protected pages and information within the website from being accessed by unauthorized persons and from being automatically indexed and linked to search engine robots, spiders, or other similar means, and for any damage caused by such unauthorized access.
Identifications and Passwords – TechVudu™ shall provide You with a unique identification and password for accessing Software that will provide You the ability to view and modify Your generated identifications and passwords. You are solely responsible for the security and proper use of such identifications and passwords, and You agree to take all reasonable steps to ensure that such identifications and passwords are kept confidential, secure, used properly, and not disclosed to unauthorized persons. You shall immediately notify TechVudu™ in the event that You have any reason to believe that such identifications and passwords have become known to unauthorized persons.
- TECHNICAL SUPPORT
Payment in full of all Services fees entitles You to limited technical support (the “Technical Support”) in the form of electronic means made available by TechVudu™. TechVudu™ reserves the right to alter, at its sole discretion, the extent of any Technical Support provided for the Services, and the hours and means of access by which it is available. TechVudu™ may offer, as an option and for a fee and subject to additional terms and conditions, additional support options that may include phone support, business critical application support and other types and levels of support.
- SYNDICATED WEBSITES
Syndicated Websites (Snap Websites). TechVudu™ may provide You, as an option and for a fee, the ability to syndicate certain content and/or functionality of Your website in order to make available to third parties (the “Snap Websites”). All such Snap Websites are subject to the terms of this agreement. If You elect to offer Your Snap Websites directly to third parties, whether for payment or otherwise, You confirm and warrant that each third party to whom You offer the Snap Website shall acknowledge and agree in writing (i) to be subject to the terms of this Agreement, and (ii) to permit TechVudu™ to enforce the terms of this Agreement as a creditor third party beneficiary. You accept full liability for such Snap Websites.
- SYNDICATED CONTENT
Syndicated Content – You are solely responsible for obtaining and properly licensing and paying any and all associated fees for any content, data, information or other assets provided by a third party (the “Syndicated Content”) and displayed, offered or otherwise used in conjunction with Your website. You acknowledge and agree that TechVudu™ shall not be responsible for obtaining, providing or otherwise offering any such Syndicated Content and that the termination of any such Syndicated Content by a third party does not relieve You of any of the obligations of the Agreement.
- ELECTRONIC COMMERCE
Online Store – TechVudu™ may provide You, as an option and for a fee, certain features and functionality as a part of its Services which enable You (i) to operate an online store to engage in the sale of goods and or services or other types of commerce which may, in full or in part, be conducted electronically through Your website, and/or (ii) to collect information including personally identifiable information from Your website’s visitors (collectively, the operation of an “Online Store”). If You elect to operate an Online Store, You confirm and warrant that TechVudu™ is not Your selling agent, distributor, marketer or other affiliate, and that You are solely responsible for each and all of the following: the operation and maintenance of Your Online Store and products and all contents and materials appearing within Your Online Store or related to Your products (including, without limitation, the accuracy and appropriateness of advertising claims, content and materials appearing within Your online store or related to Your products); the calculation and application of product pricing, coupons, order totals, shipping and sales, use, or other tax; and the purchase transactions with users through the Online Store, including, without limitation, order receipt, product delivery, payment terms and payment collection. You confirm and warrant that the content and materials appearing within Your Online Store or related to Your products do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. In no event shall TechVudu™ be liable for any claims, damages or losses arising out of or in connection with such transactions.
Credit Card Transactions – You acknowledge and agree that You are solely responsible for processing credit card transactions through Your Online Store and between You and any TechVudu™ approved credit card processing company as You may contract with. You shall be responsible for completing any applications or paying any fees, charges or otherwise owed in conjunction with the processing of such credit card transactions and shall assume full liability for meeting any obligations, financial or otherwise, that arise out of engaging in such credit card transactions. You further acknowledge and agree that TechVudu™ shall not be responsible in any way for the collection and disbursement of funds due to You as a result of such credit card transactions.
Security of Visitor/Customer Information – By operating the Online Store, You acknowledge and agree to accept full responsibility and liability for the security of any customer credit card numbers and any other related visitor or customer information, financial or otherwise, including without limitation any and all personally identifiable information which You may access, collect, be in receipt of, or archive through the operation of Your Online Store and to treat all such information as confidential to the extent required by law. TechVudu™ will treat all such information as confidential. Regarding data security, TechVudu’s sole and exclusive obligation and liability will be to undertake commercially reasonable measures consistent with prevailing industry standards to safeguard all such data and information.
Financial Calculations – You acknowledge and agree that You are solely responsible for the accuracy of any financial calculations that may be performed in conjunction with Your website including, but not limited to, the calculation of pricing, compensation, commissions, payments due, payments owed or any other financial calculations and any and all obligations, financial or otherwise, that may arise out of such calculations. Furthermore, You shall verify the accuracy of any such financial calculations prior to making or accepting any payments based on such financial calculations and, in the event You determine an inaccuracy in such a calculation, You are responsible for providing written notification of such inaccuracy to TechVudu™ and subsequently verifying that any and all corrections made by TechVudu™ are correct and accurate.
Anti-Spam Policy – You acknowledge and agree to a zero-tolerance anti-spam policy. You acknowledge and agree that You will not upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation via email. This includes any email originating from TechVudu’s servers, or email originating from third party servers that contains any variation of a domain name or hyperlink to a domain name that is hosted on TechVudu’s servers. Violation of this policy is grounds for immediate termination of this Agreement and the permanent cancellation of any websites, domain names, email accounts, and other TechVudu™ Services without refunds or financial concessions of any kind. In addition, You shall be liable for any reasonable expenses, including the time of TechVudu™ employees, associated with removing TechVudu’s servers or Internet Protocol address from any “black lists” or other lists associated with the use of such solicitations.
Downloading of Data or Files – You acknowledge and agree that TechVudu™ cannot and does not guarantee or warrant that files available for downloading through TechVudu’s servers and facilities will be free of infection, viruses, worms, Trojan horses or other means or code that manifests contaminating or destructive properties. You shall be solely responsible for implementing sufficient procedures to satisfy Your particular requirements for virus detection and remediation regarding downloadable files, accuracy of data input and output, and for maintaining a means external to TechVudu™ for the reconstruction of any lost data. You also expressly recognize that the Internet contains unedited materials, some of which may be unlawful, indecent, or offensive to You, and access to such materials by You is done at Your sole risk.
- TERM AND TERMINATION
Term Of Agreement – The term of this Agreement shall commence immediately upon the acceptance by TechVudu™ of Your Order and shall continue for the duration of the terms specified in Your Order. After the expiration or termination of this Agreement, any existing Order then still in effect shall continue unaffected and in full force and effect unless otherwise terminated as provided herein or in such Order.
Automatic Renewal of Hosting Services – After the expiration of the original term as specified on Your Order, Hosting Services shall renew annually at then prevailing prices, as provided in Section 5, for such Hosting Services unless sooner terminated by either party pursuant to the terms and conditions hereof.
Termination – You agree that TechVudu™ may terminate any TechVudu™ Services without prior notice, upon the occurrence of any one of the following: (i) breaches or violations of this Agreement or other incorporated agreements or guidelines, (ii) requests by law enforcement or other government agencies, and (iii) a request by You pursuant to the terms herein. Termination of Services includes (i) immediate termination of all Services and Services-related work, (ii) removal of Your website from TechVudu’s servers, (iii) deletion of Your identification and password and all related information, files and content associated with or inside Your website, and (iv) barring further use of TechVudu’s Services. Further, You acknowledge and agree that TechVudu™ shall not be liable to You or any third-party for any termination of Your Services or access to Your website. TechVudu™ will archive all data stored in databases maintained by TechVudu™ for a period of thirty (30) days after termination. If You request a copy of such data and pay to TechVudu™ its then current fee for processing Your data during the thirty (30) day period, TechVudu™ will record such data on media and in a format mutually agreed upon and transmit such data to You. If no request is made for a copy of such data or if a mutual agreement is not reached within the thirty (30) day period, TechVudu™ may destroy all such data without liability of obligation.
Automatic Termination – Unless TechVudu™ promptly after discovery of the relevant facts notifies You to the contrary in writing, this Agreement and Orders will terminate immediately without notice upon the institution of insolvency, bankruptcy, or similar proceedings by or against TechVudu™, any assignment or attempted assignment by TechVudu™ for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for TechVudu™.
Termination For Cause, All Services – If either party fails to comply with any of the material terms and conditions of this Agreement or the Order, the other party may terminate this Agreement and/or any or all Orders upon thirty (30) days written notice to the defaulting party specifying any such breach, unless within the period of such notice, all breaches specified therein shall have been remedied.
Termination For Convenience, Website Services – Notwithstanding anything contained herein to the contrary, You may terminate this Agreement and/or any or all Website Services’ Orders for convenience upon sixty (60) days’ written notice to TechVudu™. If You terminate Website Services for Convenience, You are responsible for paying an early termination fee in an amount equal to seventy-five (75) percent of the total remaining payments outstanding at termination as specified in any and all such Website Services Orders and any other fees or amounts You may owe.
Termination For Convenience, Hosting Services – Notwithstanding anything contained herein to the contrary, either party may terminate this Agreement and/or any Hosting Services Order for convenience upon written notice to the other party. If You terminate Hosting Services that are provided on a month-by-month basis and are not subject to an Order specifying a term of longer duration, You are responsible for any amounts due at the time of cancellation and are not eligible for any refunds for unused Hosting Services. If You terminate Hosting Services that are subject to an Order specifying a term of longer than a one month duration, You are responsible for paying an early termination fee in an amount equal to fifty (50) percent of the total remaining payments outstanding at termination as specified in any and all such Hosting Services Orders and any other fees or amounts You may owe.
Rights and Obligations on Termination – Upon termination of this Agreement, TechVudu™ and You shall have no obligations to each other except as provided in this Agreement. Upon termination of this Agreement, You shall (i) pay all amounts due and owing to TechVudu™ without deduction of any amount and (ii) immediately cease using TechVudu’s Services, including any TechVudu™ Software. Any amounts due and owing to TechVudu™ not paid in full upon termination shall be Payments in Default and subject to the terms of this Agreement.
Waiver – You expressly waive any statutory or other legal protection in conflict with the provisions of this Section.
- MUTUAL EXCHANGE OF CONFIDENTIAL INFORMATION
The parties anticipate that each may disclose confidential information to the other. Accordingly, the parties desire to establish in this Section terms governing the use and protection of certain information one party (“Owner”) may disclose to the other party (“Recipient”). For purposes hereof, “Confidential Information” means the terms and conditions hereof, and other information of an Owner (i) which relates to the purpose and subject matter of the Services, including the business models and plans of Owner and Owner’s plans for the design of a website, including without limitation, Non-Public Personal Information (defined below), or (ii) which, although not related to the Services, is nevertheless disclosed hereunder, and which, in any case, is disclosed by an Owner or an affiliate to Recipient in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure. “Non-Public Personal Information” means any of the following information accessible through or archived in connection with any website operated by or for Owner: any identifier that permits physical or online contacting of a specific individual person, including without limitation, any one or more of (i) first and last name, (ii) home or physical address, (iii) email address, (iv) telephone number, or (v) social security number. Recipient may use Confidential Information of Owner only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees and contractors who are bound by signed, written agreements sufficient to enable Recipient to enforce all the provisions of this Section. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner; or (iv) is independently developed by Recipient without reference to Confidential Information.
- LIMITATION OF LIABILITY
The parties acknowledge that the limitations set forth herein are integral to the amount of fees levied in connection with this Agreement, and that, were TechVudu™ to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. TechVudu™ does not monitor or exercise control over the content of the information transmitted through its facilities. Use of the Services or any information that may be obtained there from is at Your own risk. TechVudu™ shall have no responsibility or liability for the accuracy or quality of information obtained through its Services. TechVudu™ shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to You resulting, directly or indirectly, from any (i) weather conditions, natural disasters or other acts of God, (ii) action of any governmental or military authority, (iii) failure caused by any supplier of electricity, or telecommunication or other Internet provider, or (iv) other force or occurrence beyond its control. The exclusive remedy against TechVudu™ for any damages whatsoever to You arising out of or related to this Agreement shall be the refund of the lesser of $1,000 or the total fees paid by You to TechVudu™ within the past 60 days with respect to the then current term of this Agreement.
TechVudu™ SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE SERVICES BY YOU OR ANY THIRD PARTIES EVEN IF TechVudu™ HAS BEEN ADVISED OF THE POSSIBILITY THEREOF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) ANY LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, MIS-DELIVERIES OR SERVICE INTERRUPTIONS, OR VIRUSES, “HACKING”, ACCESS OR INTRUSIONS CAUSED BY THIRD PARTIES. TechVudu™ PROVIDES THE SERVICES “AS IS” AND “WITH ALL FAULTS”, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES OF COMPLETENESS, ACCURACY, FREEEDOM FROM INTERRUPTION, OR OF VERIFICATION OF CONTENTS. TechVudu™ DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND TechVudu™ SHALL HAVE NO LIABILITY THEREFORE.
The limitations of liability provided herein shall inure to the benefit of TechVudu™ and all TechVudu™ Affiliates and to all of the respective officers, directors, attorneys, employees and agents of TechVudu™ and such other entities (“Limited Liability Parties”). The limitations of liability afforded TechVudu™ in this Agreement shall apply whether (i) the action in which recovery is sought is based in contract, tort (including without limitation, negligence, product liability, or strict liability), statute or otherwise or (ii) a Limited Liability Party is alleged to be liable jointly with one or more parties or otherwise. The forgoing limitations will not apply to the extent damage, loss, or injury is caused by the willful tortuous misconduct or gross negligence of TechVudu™.
The immediately preceding paragraphs are intended to be independent of each other and the failure of the essential purpose of one shall not affect the other.
- MUTUAL INDEMNITY
Each party (“Provider”) will at its expense defend and indemnify the other party (“Recipient”) against a claim that any information, design, specification, instruction, software, data or material furnished by the Provider (“Material”) and used by the Recipient hereunder infringes or violates a Proprietary Right of another, provided that: (i) the Recipient notifies the Provider in writing within thirty (30) days of the claim; (ii) the Provider has sole control of the defense and all related settlement negotiations; and (iii) the Recipient provides the Provider with the assistance, information, and authority reasonably necessary to perform the above; reasonable out-of-pocket expenses incurred by the Recipient in providing such assistance will be reimbursed by the Provider. The Provider shall have no liability for any claim of infringement resulting from: (i) the Recipient’s use of a superseded or altered release of some or all of the Material if infringement would have been avoided by the use of a subsequent unaltered release of the Material which the Provider provides to the Recipient; or (ii) any information, design, specification, instruction, software, data, or material not furnished by the Provider. In the event that some or all of the Material is held or is believed by the Provider to infringe, the Provider shall have the option, at its expense: (i) to modify the Material to be non-infringing; or (ii) to obtain for the Recipient a license to continue using the Material. If it is not commercially feasible to perform either of the above options, then the Provider may require from the Recipient return of the infringing Material and all rights thereto. THIS INDEMNITY SECTION STATES THE PARTIES’ ENTIRE LIABILITY AND EXCLUSIVE REMEDY FOR INFRINGEMENT.
- INDEMNITY BY YOU
You shall at Your expense defend, indemnify, and hold TechVudu™ harmless, and each TechVudu™ affiliate and the officers, directors, employees and agents of TechVudu™ and each TechVudu™ affiliate (each an “Indemnified Party”) against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or relate to this Agreement, including without limitation, (1) any third-party actions arising out of or relating to the Services or Your website, or (2) Your use of the Services and Your website, including without limitation all Losses arising out of Your responsibilities for (i) legal compliance (Section 5), (ii) Snap Websites and Syndicated Content (Section 11), (iii) electronic commerce, Online Store, credit card transactions, visitor/customer information, and financial calculations (Section 13), (iv) anti-spam policy and downloading or data or files (Section 14), (v) termination and any failure by You to obtain a copy of Your website data (Section 13), and (vi) confidential information (Section 16). You will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party in connection with investigating, defending or settling any Loss whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party. The rights and obligations of the parties regarding this Section are subject to the following: (i) the Indemnified Party promptly notifies You in writing of a claim promptly upon becoming aware of such Claim; (ii) You shall have exclusive control of the defense of any action to which the Claim relates, however, any settlement will be subject to the prior written consent of the Indemnified Party; and (iii) the Indemnified Party cooperates with You to facilitate such defense or settlement. Once given notice of such Claim, if You do not defend any such claim giving rise to indemnity obligations, the Indemnified Party may take any of the above actions and shall be fully indemnified by You.
Except for actions to protect propriety rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Greenville, South Carolina. The arbitrator shall apply the laws of the State of South Carolina to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.
Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested. Your notices to TechVudu™ shall be sent to:
104 Trade Street – Suite D
Greer, SC 29651
ATTN: Legal Notice
TechVudu’s may provide notice to the address, email or facsimile provided by You as part of this Agreement. Such notice will be deemed to be given when received.
- CONTINUING OBLIGATIONS
The following obligations shall survive the expiration or termination hereof: (i) any and all limitations of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of protecting the proprietary rights of either party or any remedy for breach thereof, (iii) the payment of taxes, duties, or any money to either party hereunder, and (iv) the return of materials to either party.
This Agreement and the documents or instruments referred to herein contain the entire agreement and understanding between the parties with respect to the subject matter hereof and supersede all prior oral or written agreements or understandings between the parties relating thereto. This Agreement may be modified only by a written agreement signed by the parties.
This Agreement shall be construed under the laws of the State of South Carolina, without regard to its principles of conflicts of law. The parties agree that any action arising under or in connection with this Agreement shall be brought in the state or federal courts in Greenville County, South Carolina, and the parties hereby waive any rights to assert jurisdiction or venue in any other court. Your rights and obligations under this Agreement are not assignable without the prior written consent of TechVudu™. TechVudu™ may assign its interest hereunder without Your consent. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. Nothing contained in this Agreement, express or implied, is intended to confer upon any person or entity, other than the parties hereto and their permitted assigns, any rights or remedies of any nature whatsoever by reason of this Agreement.
You agree that You shall comply with all export, re-export or import laws and regulations of any jurisdiction from which the website is transmitted or accessed. You further agree that You shall obtain written authority from all appropriate governmental bodies, if You intends at any time to re-export any items originating from such jurisdiction to any proscribed destination.
If any provision in this Agreement is held invalid, void, or unenforceable by a court of competent jurisdiction, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way. If and to the extent the provisions of this Agreement conflict with 17 U.S.C. § 512, 17 U.S.C. § 512 shall control.
Government Restricted Rights Legend. Any Software or Services which are used by or transmitted for or on behalf of the United States of America, its agencies and/or instrumentalities (U.S. Government), are provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable. TechVudu™, 104 Trade Street – Suite D, Greer, SC 29651.