These "Terms of Service" (including all Schedules, Exhibits and Order Forms) are applicable between DW Data, Inc. (d/b/a "DigitalWork"), a Delaware corporation ("Host") and the customer named on this order form (or such party's assignee) ("Customer"). The "Effective Date" is the signature date noted on the Order Form, or the date the website became available on the Internet.
1. Description of Services. Host provides Web site design and hosting services, search engine submission and optimization services, and such other communications services as Host may elect from time to time to provide, all in accordance with such Policies and Procedures as Host may adopt or amend from time to time (collectively, "Services").
2. Web Sites. In accordance with Host's Policies and Procedures, Customer shall provide all content to be included on the Customer Web site, including without limitation, text, graphics, video, images, audio and other forms of content ("Customer Content") in the format designated by Host from time to time. Content posted by users of the Customer Web site shall also be considered Customer Content. All Customer Content submitted to Host shall conform to Host's Policies and Procedures. Host shall not be obligated to return to Customer any materials or Customer Content. Upon termination, Host is not obligated to transfer the Customer Web site to any party. Host reserves the right to reject any Customer Content as described in the Policies and Procedures.
3.1 Policies and Procedures. Customer shall utilize the Services and perform its obligations in accordance with Host's Policies and Procedures as amended from time to time, as listed on Host's Web site at http://www.digitalwork.com or available by calling 1-877-496-7571 ("Policies and Procedures"). Customer agrees to abide by the Policies and Procedures.
3.2 Payment. In consideration for the Services, Customer shall pay to Host the charges and other fees and costs specified in the Order Form completed by Customer for use of the Services. "Order Form" means a paper or electronic form used by Customer to request the Services. If for any reason the billing information provided by Customer becomes invalid and Host cannot collect payment after attempting to contact the Customer, then Host reserves the right to terminate the Services. Accounts that are not collectable by Host after 45 days may be turned over to an outside collection agency for collection. If your account is turned over for collection, Customer agrees to pay Host a "Processing and Collection" fee not to exceed $75.00. In the event that payment for Services on the Order Form should result in any 3rd party expenses (such as overdraft charges or other banking fees), such expenses shall be the sole obligation of the Customer.
4.1 Host's Obligations and Limited Liabilities. Host shall perform its work hereunder in a workmanlike manner. Host shall use commercially reasonable efforts to make the Web site available 24 hours per day, 7 days per week, except for repairs and maintenance. Host is not responsible nor does Host have any liability for the Customer Content posted on any Customer Web sites. Host is under no obligation to keep possession of the Order Form, and reserves the right to destroy the Order Form at any time.
4.2 Customer's Obligations and Representations. Customer represents and warrants that: (a) Customer has not intentionally incorporated and shall not incorporate into the Customer Content, nor will it provide to Host in connection with the Services, any code designed to interrupt normal processing; (b) Customer shall not submit any materials to Host or place any content on the Customer Web sites that shall cause Customer, Host, or any of their affiliates, to be in violation of any present or future law, ordinance, order, rule or requirements of any governments, courts, administrative agencies or similar bodies (the "Regulations") in the United States and elsewhere; (c) Customer shall utilize the Services solely for lawful purposes and in accordance with all applicable Regulations; (d) Customer has obtained all rights and licenses for the manipulation and display of Customer Content on the Customer Web site; (e) Customer shall at all times comply with all applicable Regulations respecting defamatory, obscene, or pornographic materials or communications, or governing the infringement of copyright, trade secret or other proprietary rights, including intellectual property and publication rights, of any third party, or relating to the invasion of privacy of any third party; and (f) Customer's use of the Customer Web site and Services and Customer Content shall conform with Host's Policies and Procedures.
5.1 Term. These Terms of Service are effective as of the Effective Date and shall continue as described on the Order Form.
5.2 Annual or Monthly Customer.
5.2.1 Annual Customer. If Customer elects to pay an up front annual fee to cover the first year of Services as described on the Order Form, then these Terms of Service will continue for an initial period of one (1) year (Initial Term). These Terms of Service shall be automatically renewed for further one-year periods (Renewal Terms) unless either party notifies the other party in writing at least thirty (30) days prior to the expiration of the Initial Term or the Renewal Term. Fees for any Renewal Term will be automatically billed to the Customer at the beginning of the first month of the Renewal Term. If Customer wishes to terminate during the Initial Term, Customer must provide at least thirty (30) days prior written notice. Host shall not refund any fees upon cancellation.
5.2.2 Monthly Customer. If Customer elects a monthly billing period for Services as described on the Order Form, then these Terms of Service shall continue on a month-to-month basis. Either party may cancel at any time for any reason upon providing thirty (30) days prior written notice. Host shall not refund any fees upon cancellation.
5.3 Termination. Either party may terminate the Service if the other Party materially breaches any of its material obligations as set forth in these Terms of Service and fails to cure such breach within 30 days after written notice thereof, provided, however, that, if any undisputed payment under these Terms of Service is more than ten (10) days past due, the party to whom payment is due may in its discretion terminate the Service. The foregoing termination shall be effective upon the expiration of such thirty (30) day notice period. Notwithstanding the foregoing, Host may immediately terminate the Service if, in Host's sole discretion, Customer fails to fulfill any of Customer's obligations or representations.
6. Pricing. Host will bill Customer for the amount as listed on the Order Form. Host reserves the right to change or modify pricing at anytime in the future without prior notice to the Customer. Any changes in pricing for Customer on an annual billing cycle will take effect no sooner than the beginning of the second renewal period.
7.1 Indemnification. Customer shall defend, indemnify and hold harmless Host, its officers, directors, stockholders, employees, affiliates, agents, subcontractors and assigns from any claims, liabilities, losses, costs, or damages, including attorneys' fees, arising out of Customer's use of the Services; a material breach of warranty or representation by Customer to Host; or Customer's or Customer Web site users' creation, distribution, use, or delivery to Host of any content, including but not limited to, libel, slander, infringement of copyright, trademarks, service marks, trade secrets or patents, or breach in the privacy or security of transmissions relating to the Web sites.
7.2 The indemnification obligations stated in this Article 7.1 shall survive any termination of the Service or of these Terms of Service.
8. WARRANTY & DISCLAIMER. ALL WARRANTIES OF HOST NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND AVAILABILITY OF WEB SITES, ARE HEREBY EXCLUDED. HOST MAKES NO WARRANTY, GUARANTEE OR REPRESENTATION OF ANY KIND CONCERNING THE PERFORMANCE, SERVICEABILITY OR VALUE OF ANY FREE OR PROMOTIONAL GIFT, AND DISCLAIMS ANY IMPLIED WARRANTY.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL HOST BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST DATA, OR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF THE HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HOST SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE CUSTOMER WEB SITE, CUSTOMER CONTENT, OR CUSTOMER'S DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR OTHERWISE. IN ANY EVENT, THE LIABILITY OF HOST TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HOST BY CUSTOMER UNDER THESE TERMS OF SERVICE DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND ALL OTHER TORTS.
10. Proprietary Rights of Host. All materials, including but not limited to any computer software, data or information developed or provided by Host or its suppliers under these Terms of Service, HTML code, Web pages, and any know-how, methodologies, equipment, or processes used by Host to provide the Services to Customer, 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 these Terms of Service or otherwise, Customer hereby transfers and assigns to Host all rights, title and interest which Customer may have in and to the Host Materials. Customer allows Host to feature any design created for Customer in promotional material.
11.1 Governing Law, Jurisdiction, Disputes. These Terms of Service and Host's Policies and Procedures shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of Illinois without regard to conflicts of law provisions. All disputes arising out of or relating to these Terms of Service and the Policies and Procedures shall be resolved by binding arbitration by the American Arbitration Association ("AAA") in Chicago, Illinois in accordance with AAA's Commercial Arbitration Rules. CUSTOMER WAIVES ANY RIGHT TO A TRIAL BY JURY. Any claim against Host relating to these Terms of Service, Policies and Procedures or the Services must be filed within one year of the date on which such claim or cause of action arose, or it shall be forever barred.
11.2 Severability. In the event that any provision of these Terms of Service conflicts with the law under which these Terms of Service are to be construed or if any such provision is held invalid by a court or arbitration panel with jurisdiction over the parties to these Terms of Service, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of these Terms of Service shall remain in full force and effect.
12. Notice. Any written notice intended to comply with the provisions herein should be sent via regular mail or fax to:
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