AVIA! web development
Web Hosting Terms and Conditions
- Responsibilities of the Parties.
- Website Hosting.
After payment of the
applicable Hosting Fees (defined below), AVIA! web development
and hosting ("AVIA!") will provide Client with the selected
hosting and/or other web services as described from time to time
on AVIA!'s website at www.aviaweb.net (the "Work").Client
agrees to respond to AVIA!'s requests and inquiries in a timely
fashion and understands that its failure to do so may result in
additional fees being charged to Client and/or suspension of the
Work (including taking Client's Site off-line), in AVIA!'s sole
and reasonable discretion.
- Other Services.
AVIA! has development, maintenance and
other services available under separate agreement, as described
on the AVIA! website.
Client will pay
AVIA! the hosting fees posted from time to time at www.aviaweb.net/aviaweb/billing.html
("Hosting Fees"). For invoiced fees, all payments are
due thirty (30) days after the date of each invoice. Client will
provide AVIA! with a credit card number,as required for AVIA!, to
pay for Hosting Fees and third party services required as a part
of the Work such as Yahoo! expedited site review, domain registration,
web hosting, or RealNames registration. AVIA! may impose a late
charge equal to 1.5% per month or the maximum legal rate on overdue
amounts. In addition, Client shall reimburse AVIA! for all out of
pocket expenses incurred in connection with the Work, including
without limitation, long distance telephone, facsimile, photocopy,
printing, postage, courier and delivery, backup tapes, software
specific to Client needs, and travel ("Expenses"). Client
shall pay all Expenses within 30 days of the date of invoice. If
any Client accounts with AVIA! are overdue, under this Agreement
or otherwise, AVIA! may at its sole discretion, suspend performance
of the Work (including taking Client's Site down) and/or terminate
this Agreement or any other agreement with Client.
This Agreement shall commence when
AVIA! begins the Work.
Client is responsible for providing
all Content for the Site which shall be true, accurate, and complete.
Client represents and warrants that it owns or has obtained permission
to use all Content, which permissions or authentications shall be
Client's sole responsibility. Client shall at all times remain responsible
for (a) reviewing and approving the substance and Content of the
Site; and (b) complying with all laws with respect thereto, including
but not limited to copyright, trademark and libel laws. AVIA! may
rely on the accuracy and completeness of all information provided
by Client. "Content" means all text, pictures, sound,
graphics, logos, images, video and other data supplied by Client
Ownership; Work Product.
and agrees that ownership of all source code, software and material
developed and produced by AVIA! in connection with this Agreement
is the product of and shall remain with AVIA! and shall NOT be deemed
"works-for-hire". Without limiting the foregoing, AVIA!
specifically reserves and maintains the right to develop, modify
and sell derivative works and/or similar products relating to the
Work produced by AVIA! hereunder. These provisions shall not apply
to any Content supplied by Client or any Confidential Information
of Client. Upon payment in full to AVIA! of all amounts due, AVIA!
grants Client a royalty-free, non-exclusive, nontransferable license
to use the Work solely for the use intended herein and for no other
Inappropriate Material and Use.
Client agrees to use the Site in accordance with this Agreement,
AVIA!'s Acceptable Use Policy posted at www.aviaweb.net/aviaweb/acceptable.html
and only for lawful purposes in compliance with all applicable laws.
Client shall not post, upload, store, distribute or transmit any
inappropriate material on its Site or in connection with the Work.
Inappropriate material shall be determined by AVIA! in its sole
discretion and includes, but is not limited to, threats of physical
harm, child pornograpy and copyrighted, trademarked and other proprietary
material used without proper authorization. Client further may not
use the Site to damage, detrimentally interfere with, circumvent
or expropriate any system, data or personal information or in any
other inappropriate manner, as determined by AVIA!. This includes
but is not limited to the distribution of unsolicited bulk e-mail,
commonly known as spamming, the transmission of viruses, mailbombing,
and/or any tool or action that compromises the security of any other
site. Such use or transmission of unlawful material could subject
Client to criminal as well as civil liability in addition to the
actions further defined in this Agreement. Client acknowledges that
AVIA! may in its sole discretion, suspend Client web hosting, refuse
to include inappropriate material on the Site, suspend, modify or
terminate the Work, take the Site off-line, or remove the inappropriate
material, without liability, for any violation of this Agreement.
Client shall indemnify,
defend and hold harmless AVIA!, its owners, directors, officers,
agents and employees against all claims, demands, losses, expenses
and causes of action arising out of or in any way relating to Client's
violation of this Agreement, the design, operation, and/or maintenance
of the Client's Site by AVIA!, the Content, inappropriate material,
and/or in connection with the Client's business, including but not
limited to (i) infringement or misappropriation of any intellectual
property right; (ii) defamation, libel, slander, obscenity, pornography
or violation of the rights of privacy or publicity; (iii) spamming
or any other offensive, harrassing and illegal conduct; (iv) any
content placed on AVIA!'s servers by Client or Client's users; or
(v) any damage or destruction which is caused by or results from
acts or omissions by Client, Client's employees or Client's agents,
except to the extent of AVIA!'s gross negligence or willful misconduct.
Customer acknowledges that
the Work is provided "AS IS." Neither AVIA! nor any of
its employees or agents warrant that AVIA!'s web hosting service
will be uninterrrupted, error free or secure. ANY STATUTORY OR OTHER
WARRANTY, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. Under no circumstances
will AVIA! be liable to the Client or any other person for any loss
or damage caused by the Client's Site.
Limitation of Liability.
LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT FOR THE WORK
GIVING RISE TO THE CLAIM. IN NO EVENT SHALL AVIA! BE LIABLE FOR
INDIRECT, INCIDENTIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOSS OF INCOME, DATA OR USE OF INFORMATION, EVEN IF
AVIA! HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
During the term of
this Agreement, AVIA! and Client may exchange certain proprietary
and confidential information in connection with the Work ("Confidential
Information"). Any Confidential Information designated as such
in writing by the disclosing party prior to or at the time such
Confidential Information is disclosed to the other party shall be
maintained by the recipient in strict confidence, shall not be disclosed
to third parties unless required to do so by law, and shall not
be used for its own benefit. The obligations of the recipient hereunder
shall not apply to any Confidential Information which (a) was in
the public domain at the time it was disclosed, (b) enters the public
domain other than by breach of this Agreement by the recipient,
(c) is known to the recipient at the time of its disclosure, or
(d) is disclosed to the recipient by a third party who has the right
to do so. In the event of breach by a recipient of this section,
the provider shall be entitled to specific performance or injunctive
relief as a remedy for such breach in addition to its other remedies
at law. The parties' obligations under this section shall terminate
three (3) years after the date of disclosure. Client acknowledges
that AVIA! is engaged in the business of designing, developing,
installing and hosting websites. Client agrees that this Agreement
does not limit or restrict AVIA!'s ability to engage in such business
and does not limit AVIA!'s use or application of any technical information
or knowledge acquired independently in the course of such business.
Either party may terminate
this Agreement after thirty (30) days written notice to the other.
In the event of such termination, AVIA! shall be compensated in
full for any phase of the Work which has been commenced by AVIA!;
for any equipment that AVIA! has purchased on behalf of Client;
and for all other Work otherwise performed. Either party may terminate
this Agreement and any other agreement among the parties at any
time, after written notice and seven (7) days opportunity to cure,
for a material breach of this Agreement. AVIA! shall have the right
to terminate or suspend this Agreement and any other agreement among
the parties at any time if Client fails to make payments when due
under any agreement among the parties.
(a) AVIA! Shall not be in default
of its obligations to the extent that its performance is delayed
or prevented by causes beyond its reasonable control, including
but not limited to Acts of Nature, failure of its providers, delays
by Client and strikes or other labor disturbances. (b) This Agreement
shall not be assigned or transferred by either party without the
prior written consent of the other. (c) The validity, interpretation,
construction and performance of this Agreement shall be governed
and construed by the laws of the Commonwealth of Massachusetts.
Suit with respect to this Agreement may be brought only in the Commonwealth
of Massachusetts and Client submits to personal jurisdiction in
Massachusetts. (d) Any notices required or permitted to be given
hereunder shall be in writing and shall be deemed to be validly
delivered if sent by personal hand delivery, overnight mail service,
sent by facsimile or email with a confirmation, or mailed by certified
or registered mail, return receipt requested, to the last known
address of the applicable party. (e) This Agreement, including the
exhibits and proposal of AVIA! and the policies, procedures and
terms posted on AVIA!'s website, is the complete and exclusive statement
of the agreement between Client and AVIA! regarding the subject
matter hereof and supersedes all agreements and any other communications,
whether oral or written, between Client and AVIA!. Different or
additional terms contained in documents supplied by Client shall
not apply. This Agreement may be modified, changed or revised by
Client only in writing signed by AVIA!. This Agreement and the applicable
policies, procedures and terms contained on AVIA!'s website may
be amended from time to time by AVIA! To the extent any of the terms
of the exhibits, proposals, or the website conflict with this Agreement,
the provisions of this Agreement shall govern, unless they are subsequent
in time. (f) If any provision of this Agreement are determined by
a court of competent jurisdiction to be invalid, void or unenforceable,
the remaining provisions of this Agreement shall remain in full
force and effect. (g) Client shall be responsible for all costs
and expenses (including court costs and attorneys' fees) incurred
by AVIA! in enforcing this Agreement.