This Agreement ("Agreement") is between Creative Web Ventures, Inc., a California corporation ("Creative Web Ventures") and the party specified in the online or e-mail order form annexed hereto and incorporated herein by reference ("Order"). Such party shall be referred to herein as the "Customer" and shall enter into this Agreement by signing below.
For good and valuable consideration, the parties agree as follows:
Subject to the terms and conditions of this Agreement, Creative Web Ventures will provide to Customer the Web hosting and/or related services described in the plan selected by Customer from Creative Web Ventures' then published list of services as offered from time to time ("Services"). The specific plan of Services to be provided initially to Customer shall be as selected in the Order and thereafter as established through correspondence between Customer and Creative Web Ventures.
The initial term of this Agreement shall be as stated in the Order ("Initial Term"). The Initial Term shall begin upon commencement of Service to Customer, provided, however, no Service shall commence unless and until Creative Web Ventures receives and accepts a completed Order from Customer, plus payment in full for Services to be rendered during the Initial Term and any setup charges (except for Dedicated Server Customers whose initial payment requirement shall be set forth in the Order). Creative Web Ventures reserves the right to reject any submitted Order for any or no reason prior to written acceptance thereof by Creative Web Ventures. After the Initial Term, unless otherwise agreed to by the parties, this Agreement shall automatically renew for successive terms of equal length as the Initial Term unless terminated or canceled by either party only as provided in Paragraph 9 below. The Initial Term plus all successive renewal periods during which Service is provided shall be collectively referred to as the "Term."
3. FEES AND PAYMENT
All fees for Services rendered or provided to Customer shall be in accordance with Creative Web Ventures' fee schedule then in effect, the terms of which are incorporated herein by reference. Creative Web Ventures may, with 30 days notice to Customer, amend the Services and/or the rates and fees it charges for the Services. Fees for renewal periods after the Initial Term shall be due and owing immediately upon the first day of such renewal period. Customer will receive an invoice for the charges for the basic Services rendered or provided by Creative Web Ventures for such renewal period, plus any additional Services rendered or provided by Creative Web Ventures to Customer for the preceding month of the Term, and any other charges or fees then due hereunder. Payment in full of such invoiced amount is due upon receipt of the invoice. Should payment in full of any invoice not be received by Creative Web Ventures within thirty (30) days after date of invoice, Creative Web Ventures may impose a debt service charge equal to one and one-half percent (1.5%) of the overdue balance (or such lesser amount as may be required by law) for each month or fraction thereof the overdue amount remains unpaid. In addition, in the event that any amount due Creative Web Ventures remains unpaid thirty (30) days after presentation of an invoice to Customer, Creative Web Ventures, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services. All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of Creative Web Ventures) shall be paid by Customer.
4. CONTENT AND CUSTOMER'S RESPONSIBILITY
Customer agrees that neither Creative Web Ventures nor its suppliers shall, under any circumstances, be held responsible or liable for situations where the data stored or communicated through the Service are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Creative Web Ventures at the time) which may exist in the Service. Creative Web Ventures stores and facilitates the transmission of private electronic communications pursuant to the Electronic Communications Privacy Act of 1986. Electronic communications on this system are private, and only under situations where explicitly required or allowed by law will such communications be accessed, intercepted, disclosed, or used without the consent of at least one of the parties to the communication. Although Creative Web Ventures will not systematically monitor the content which is submitted to, stored on or distributed via disseminated via the Service, Creative Web Ventures reserves the right, in its sole discretion, to edit or delete any information or other content, regardless of whether it violates the standards for content laid out in the Creative Web Ventures, Inc. Usage Policy found at http://www.attorneywebcreations.com/usagepolicy ("Usage Policy").
5. NO WARRANTY
Customer agrees to use all Creative Web Ventures' Services and facilities, and any information obtained through or from Creative Web Ventures, at Customer's own risk. Customer acknowledges and understands that neither Creative Web Ventures, nor any of its employees, representatives, agents or the like, warrant that the Services offered or provided hereunder will be uninterrupted or error free, nor do they make any warranty or representation as to the results that may be obtained from the use of the Service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Service, unless otherwise expressly stated in this Agreement. Creative Web Ventures specifically disclaims all warranties of any kind, including, without limitation, the warranties of title, merchantability, and fitness for a particular purpose, whether expressed or implied, for the Service it is offering or providing hereunder.
6. PROHIBITED USES
Customer warrants that all information submitted to, stored or distributed via the Service does not infringe copyright or any other intellectual property right. Customer grants Creative Web Ventures the right to reproduce, copy use and distribute any materials submitted to, stored on or distributed via the Service to the extent needed to operate the Service. Customer agrees that its use of the Service and the software used to provide the Service will be in a manner consistent with this Agreement. Customer shall not use, nor permit the use by any person of, the Service or any part thereof, including any hyperlinks, in violation of the Usage Policy.
7. LIMITED LIABILITY
Under no circumstances, including negligence, shall Creative Web Ventures, its officers, agents or anyone else involved in creating, producing or distributing the Service hereunder be liable to Customer for any indirect, incidental, special, or consequential, or punitive damages. Creative Web Ventures, its officers, agents or anyone else involved in creating, producing or distributing the Service hereunder shall not be liable to Customer for any loss or damages that result or have alleged to have resulted from the use of or inability to use the Service; or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Creative Web Ventures' records, programs or services. Furthermore, Creative Web Ventures shall have no responsibility whatsoever to Customer for the accuracy or quality of information obtained through or in connection with its Services provided hereunder. Notwithstanding anything to the contrary in this Agreement, Customer's exclusive remedies for all damages, losses, costs or causes of actions from any and all claims, whether in contract, quasi-contract, statutory, tort including negligence, or otherwise, shall not exceed the aggregate dollar amount which Customer paid during the twelve (12) months immediately preceding the claim or the term of this Agreement, whichever is less.
CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS CREATIVE WEB VENTURES AND ITS SUPPLIERS FROM AND AGAINST ANY AND ALL THIRD-PARTY CLAIMS AND RESULTING LIABILITIES, LOSSES, DAMAGES, COSTS AND EXPENSES, (INCLUDING REASONABLE ATTORNEYS FEES) OF WHATEVER NATURE OR KIND ARISING OUT OF OR IN CONNECTION WITH: (1) THE USE OF THE SERVICE BY THE CUSTOMER OR ANY USER OR (2) ANY ACTS OR OMISSIONS OF THE CUSTOMER OR AUTHORIZED USERS. THIS INDEMNIFICATION INCLUDES ANY CAUSE OF ACTION BROUGHT AGAINST Creative Web Ventures WHICH IS BASED IN WHOLE OR IN PART ON A CLAIM THAT CREATIVE WEB VENTURES IS NEGLIGENT IN RELATION TO PROVISION OF THE SERVICE TO THE CUSTOMER OR USER(S). CUSTOMER'S OBLIGATION TO INDEMNIFY Creative Web Ventures AND ITS SUPPLIERS WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT BY EITHER PARTY FOR ANY REASON. CUSTOMER SHALL PAY FOR THE DEFENSE OF ANY SUCH THIRD PARTY ACTION ARISING AS DESCRIBED HEREIN UNLESS Creative Web Ventures AND CUSTOMER MUTUALLY AGREE THAT CREATIVE WEB VENTURES WILL PAY FOR THE DEFENSE.
This Agreement may be terminated: (i) by either party, without cause, by giving the other party 30 days prior written notice; (ii) by Creative Web Ventures, at any time, upon 20 days' prior notice if in the sole judgment of Creative Web Ventures, Customer breaches any material provision of this Agreement and has not cured same by the end of the 20 days; (iii) by Creative Web Ventures in the event of nonpayment by Customer as provided in Paragraph 3 above; and (iv) by Creative Web Ventures, at any time, without notice, if, in Creative Web Ventures's sole judgment, Customer is in violation of any terms or conditions of the Usage Policy.
10. ADDITIONAL TERMS AND CONDITIONS
Customer hereby acknowledges that it has reviewed the Usage Policy and that the terms of the Usage Policy are incorporated herein by reference. Creative Web Ventures reserves the right to amend the Usage Policy from time to time and Customer shall be bound by any such amendments. Customer shall have the obligation to periodically visit Creative Web Ventures's Web site to review its Usage Policy and to make certain Customer is in full compliance therewith. In the event of any inconsistencies between this Agreement and the Usage Policy, the terms of the Usage Policy shall govern.
Each of Creative Web Ventures' hosting plans hereunder carries a 30 day unconditional money back guarantee. If Customer is not completely satisfied with Creative Web Ventures' services provided hereunder within the first 30 days of the Initial Term, Customer will be given a full refund of any amounts paid to Creative Web Ventures hereunder excluding setup fees (unless canceled prior to activation), domain registration fees and overages. No refund is available after the 30th day of the Initial Term.
All notices must be sent either in writing or by e-mail, except as otherwise expressly provided herein that a notice must be in writing. All notices to Creative Web Ventures shall be delivered to Creative Web Ventures, Inc., General Counsel, Law Offices of Richard H. Hallstrom, 790 E. Colorado Blvd., 9th Floor, Pasadena, CA 91101. All notices to the Customer shall be delivered to its mailing address or its e-mail address as provided on the Order. The parties may change their respective address by notice delivered to the other party. All notices delivered in writing must be sent either by overnight courier or certified mail, return receipt requested. Evidence of successful transmission of all notices delivered by e-mail must be retained by the delivering party.
This Agreement sets forth the entire agreement between Creative Web Ventures and Customer with respect to the subject matter hereof and supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any other prior writing between the parties. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless continue in full force and effect. Customer may not transfer or assign this Agreement without Creative Web Ventures's prior written consent. This Agreement shall be governed by the laws of the State of California and all claims concerning this Agreement shall be brought exclusively in the state or federal courts located in the County of Los Angeles. The parties hereby consent to submit to the jurisdiction of such courts and waive any personal jurisdiction or venue defenses concerning said forum. If not for personal use, Customer hereby represents and warrants to Creative Web Ventures that the he or she is duly authorized to execute and deliver this Agreement on behalf of the legal entity to whom the benefit of the service is being conferred, and that such entity will comply with and be bound by the terms and conditions of this Agreement.