Software Atlanta Web Hosting Service Agreement

WHEREAS, Software Atlanta provides web site hosting, domain name registration, e-mail accounts, and other Internet services.

WHEREAS, Client desires Software Atlanta to provide web site hosting, domain name registration, e-mail accounts and other Internet services to Client.

WHEREAS, Client and Software Atlanta desire to clarify and define all rights, titles, and interests pursuant to this Agreement, the parties agree as follows:

1. DEFINITIONS.

1.a. "Agreement" means this Service Agreement between Software Atlanta and Client.

1.b. "Administrative Contact" is the person whom the Client designates as being the person who shall have the power to make ongoing administrative decisions under this Agreement which are binding upon Client. The Administrative Contact has access to change the administrative, billing, and technical contact information for the Client's web site, e-mail configuration, domain name registration, and passwords.

1.c. "Billing Contact" is the person whom the Client designates as being the person who shall have the power to make ongoing billing and payment decisions under this Agreement which are binding upon Client. The Billing Contact is responsible for paying for all Client ordered services including web site hosting, e-mail configuration, domain name registration, secure certificate registrations, consulting, technical support, educational services, and more.

1.d. "Domain Name" is the alphanumeric name associated with Client's web site, web pages or electronic mail registered with a domain name registrar.

1.e. "Domain Name Registrar" is an ICANN approved organization that is responsible for the registration of domain names. A fee must be paid by the Client to a Registrar (or a Registrar's agent) for domain name registration services.

1.f. "Electronic Mail", "Email" or "E-Mail" is a system for sending and receiving messages electronically over a computer network, as between personal computers on the Internet.

1.g. "Intellectual Property Rights" means: Rights in any patent, copyright, trademark, trade dress, and trade name; Related registrations and applications for registration; and Trade secrets, moral rights, and goodwill.

1.h. "Internet" means the global computer network comprised of interconnected networks using standard Protocols including TCP/IP.

1.i. "Registrant" is the legal entity (Corporation, Partnership, Sole Proprietorship, Joint Venture, Trust or Person) to whom a domain name is officially registered to.

1.j. "Technical Contact" is the person whom the Client designates as being the person who shall have the power to make ongoing technical decisions under this Agreement which are binding upon Client. The Technical Contact has access to change the Client's web site, e-mail configuration, and passwords.

1.k. "Web Host" is a company that provides space on its web hosting servers for Client's business needs. The web hosting servers are connected to the Internet so that the information on the servers can be made available to the general Internet community for viewing.

1.l. "Web Page" means each individual screen display contained in Client's Web Site.

1.m. "Web Site" means all Web Pages, programs and scripts associated with Client and its products or services, and which are stored on Web Host's Internet server computers.

1.n. The "World Wide Web", or "WWW", is a subset of the Internet, and is a common system for browsing Internet Web Sites.

2. SERVICES TO BE PROVIDED.

2.a. Hard Disk Space. Client shall be allotted storage space on Software Atlanta's servers which may be used to store Client's Web Pages, databases, and electronic communications, including e-mail.

2.b. Domain Name Services.

2.b.i. Registration. Software Atlanta does not guarantee the Client shall be assigned its desired domain name. Software Atlanta is not responsible for Registrars' policies about domain name assignment, for delays in registration, approval of domain names, or modifications, for clerical or other errors made by any domain name Registrar, any decision to place a domain name on hold, or any other Registrar policy.
 

2.b.ii. Software Atlanta does not claim proprietary interest in the domain names secured by it on behalf of its Clients.

2.b.iii. The registration and maintenance of domain names are subject to fees assessed by the domain name Registrar and Software Atlanta. Upon termination of this Agreement, Client is responsible for the continued payment of registrar fees.

2.b.iv. Any failure by the Client to pay Registrar fees may result in the temporary or permanent loss of rights to use/own the domain name. Registering a trademark or patent may assist in the maintenance of rights to use/own the domain name. Please consult your attorney for advice in this regard.

2.b.v. Client's Warranty of Ownership and Non-Infringement. Client expressly confirms and warrants that Client is the owner of, or is duly authorized by the owner to use any trademark or name requested or allocated as its domain name. Client further warrants that neither Client's nor Software Atlanta's use or registration of Client's domain names constitutes infringement of any other entity's Intellectual Property Rights.

2.b.vi. Client Indemnification of Software Atlanta. Software Atlanta shall not undertake to resolve any disputes or litigation on Client's behalf involving domain name registration, and Client agrees that it shall indemnify, hold Software Atlanta harmless and defend Software Atlanta against any disputes regarding domain name ownership, use, or registration.

2.b.vii. Jurisdictional Disputes. The parties expressly recognize that, where Software Atlanta is acting as Client's Web Host or domain name Registrar, Software Atlanta is not engaged in, and is not actively soliciting, interstate or international commerce. Where Software Atlanta is named party to any type of dispute or litigation involving any acts by Client that affect out-of-state persons or entities, Client agrees that it shall indemnify, hold Software Atlanta harmless, defend Software Atlanta and challenge the jurisdiction of out-of-state authorities over Software Atlanta. Client will pay all per diem costs associates with protecting Software Atlanta.

2.c. Statistics.

2.c.i. Server Logs. Client shall have the right to download and review the raw data contained in the web site's server logs.

2.c.iii. No Liability for Cached Hits. Client expressly recognizes that the actual number of hits to Client's Web Site may be lower than the number reported by web server logs, due to the caching of Client's Web Site on the Internet.

2.d. Web Site Storage and Internet Link. Software Atlanta shall store Client's Web Site on Software Atlanta's Internet servers. The parties expressly recognize that the Internet servers, equipment and telecommunications links are susceptible to crashes and down time. Software Atlanta warrants that it shall use its best efforts to maintain a consistent link with the Internet, but cannot and does not warrant that it shall maintain a continuous and uninterrupted link.

2.d.i. Bandwidth. Software Atlanta does not guarantee any specific response rate or download time. Software Atlanta will make best efforts to ensure that there is sufficient bandwidth available to meet its Clients' bandwidth needs. In order so that Software Atlanta can properly plan for its Clients' bandwidth needs, it is imperative that Client notifies Software Atlanta of any expected significant increase or decrease in traffic to its Web Site or Domain Name. If Client expects to launch a major advertising campaign, public relations campaign, or is expected to generate a significantly larger than average number of visitors for any other reason it is the Client's responsibility to notify Software Atlanta. If Client does not make efforts to notify Software Atlanta of bandwidth needs in advance, it may be necessary for Software Atlanta to set limits on the number of visitors the servers will process for the Client in order to protect the other Software Atlanta clients' interests.

2.d.ii. Backup. Software Atlanta is not responsible for maintaining working backup copies of any Client data (web site content , e-mail messages, etc.) for Client's use. The Software Atlanta backup copy is only to be used in the event of maintenance, crashes, downtime, and service interruptions. All Clients are strongly advised to make at least one working backup copy of their files - with one copy preferably remaining off-site, or in a different location than the first copy.

2.d.iii. Maintenance. Software Atlanta may, at its own discretion, temporarily suspend all service for the purpose of repair, maintenance or improvement of any of Software Atlanta's systems. However, Software Atlanta shall provide prior notice where it is reasonably practical under the circumstances, and Software Atlanta shall restore service as soon as it is reasonably practical. Client shall not be entitled to any setoff, discount, refund or other credit.

2.d.iv. Security. The parties expressly recognize that it is impossible to maintain flawless security, but Software Atlanta and Client shall take reasonable steps to prevent security breaches. Client is responsible for protecting its private passwords and files. Client is solely responsible for any damage caused by unauthorized access of his/her account.

2.d.v. Viruses and Worms. If Client or Software Atlanta becomes aware of a virus or worm that has infected the Web Host's server files, then the party that discovered the virus or worm shall attempt to notify the other party of the occurrence as soon as is reasonable. Software Atlanta shall take reasonable precautions to prevent, stop, find and eliminate the spread of all viruses and worms on its servers. Software Atlanta may, at its discretion, remove or delete infected Client files from the server, with or without advance notice to Client, in order to prevent additional damage to the Web Host's servers. The Client shall not be entitled to any setoff, discount, refund or other credit. Software Atlanta will attempt to contact Client as soon as possible if this occurs.

2.e. Caching Permitted by Software Atlanta. Client expressly grants Software Atlanta to license to cache the entirety of Client's web site in RAM, Client expressly agrees that such caching is also deemed "fair use" under the United States Copyright Act, and Client expressly agrees that such caching is not an infringement of any of Client's Intellectual Property Rights.

2.f. Export Control. Client agrees that its web site shall comply with all export, re-export or import laws and regulations of any jurisdiction from which Client's web site is transmitted or accessed.

2.g. Software Atlanta's Monitoring and Termination Rights. The parties expressly recognize that Software Atlanta cannot and does not screen content provided by any Internet users of the Service, however, the parties agree that Software Atlanta has the right, but not the obligation, to remove from its server or block access over the Internet to any communications and materials that Software Atlanta believes, in its sole discretion, violate any of the policies of Software Atlanta, or any laws of any jurisdiction served by Software Atlanta. The parties also agree that Software Atlanta may, in its sole discretion, terminate Client's account for any violation of Software Atlanta's operating policies.

2.h. Technical Support. Software Atlanta has made every effort possible to provide all the answers to your web hosting, e-mail, domain name registration, secure certificate, shopping cart, and account administration questions directly online. Providing support electronically via e-mail and our website allows Software Atlanta to keep its costs low for all Clients. Please make every effort to use the electronic support services that are available online before contacting our offices via telephone.

2.h.i. Software Atlanta offers free technical assistance to all Clients via e-mail and our website. Software Atlanta does not offer free technical support services by telephone as part of this Agreement.

2.h.ii. All requests for free e-mail technical support should be submitted via e-mail to support@softwareatlanta.com. Most requests are responded to within three hours during the business day, however requests for support may take as long as 24 hours. It is strongly advised that you review and reference the freely available support documentation available at the Software Atlanta website, located at http://www.softwareatlanta.com or http://www.webhostatlanta.com

2.h.iii. Self-help installation documentation regarding server addressing, directory locations, usernames and passwords is provided to the Technical Contact via e-mail immediately after set-up of the Client's account. This information is also available online via our support website.

2.h.iv. Some free technical support may be provided via telephone on a "best efforts" basis during normal business hours, Monday through Friday, 9:00am to 5:00pm EST at the discretion of Software Atlanta. Clients who ask questions that are answered on our support website will be politely referred to get their answers from our website and will be asked to check the website before calling in the future.

2.h.v. If Client insists on receiving technical support via telephone, then the Client will be asked to purchase a separate telephone support service contract before continuing the support call. Paid support calls are billed either on a per incident basis or on a per minute basis. The cost of the call depends on the level of skill required to answer the question. You will be notified in advance what the cost of the call will be. If the question is regarding a Software Atlanta supported application or service AND the answer to your question is not yet available via our Software Atlanta support website, we will add your question and solution to our website and you will not be charged for the support call.

2.i. Web site Design Services. Software Atlanta does not offer any web site design or consulting services as part of this Agreement. Web Design services are offered on a separate contract basis. Please contact us at info@softwareatlanta.com for more information.

3. FEES AND POLICIES.

3.a. Fees. Client shall pay for domain name registration fees, all installation and start-up fees, monthly, quarterly, and yearly web hosting fees, and any and all other fees for additional services ordered by Client.

3.b. Policies. Client agrees that it shall abide by Software Atlanta operating policies, which may be amended from time to time at Software Atlanta's sole discretion. Policy changes will be posted as soon as possible on Software Atlanta's web site located at http://www.softwareatlanta.com . It is the Client's responsibility to regularly review the web site for any policy changes that may occur.

3.c. Refunds. There are no refunds.

3.d. Additional Charges. Client is solely responsible for all taxes, fees, surcharges, fines, and any other charges that may be payable as a result of Client's doing business in relation to this Agreement.

4. WARRANTIES. SOFTWARE ATLANTA CONFIRMS AND WARRANTS THAT:

4.a. Software Atlanta has the right to enter into this Agreement and to grant the rights granted in it.

4.b. Software Atlanta shall, in good faith, comply with the terms of this Agreement.

5. DISCLAIMERS.

5.a. Liability Limitations. Except for the warranties recited above, Software Atlanta DISCLAIMS ALL OTHER WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; AND 7) TITLE.

5.b. Software Atlanta Not Liable for Delays or Defaults. Software Atlanta shall not be liable for delays or defaults in furnishing goods or services hereunder, including, but not limited to:

5.b.i. Acts of God or of a public enemy;

5.b.ii. Acts of the United States or any state or political subdivision thereof;

5.b.iii. Fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes;

5.b.iv Embargoes, epidemics or quarantines restrictions;

5.b.v. Shortage of goods, labor strikes, slow-downs, difference with workmen or labor stoppages of any kind;

5.b.vi. Delays of supplier or delays of transportation for any reason;

5.b.vii. Causes beyond the control of Software Atlanta in furnishing items or services including, but not limited to, breakdown or failure of machinery or equipment, or delay in Client reporting problems or furnishing information or materials.

5.c. Third Party Transaction at Client's Peril. Software Atlanta does not make any express or implied warranties, representations or endorsements TO CLIENT OR ANY THIRD PARTY whatsoever with regard to any information, products or services provided through Software Atlanta AND OBTAINED OR CONTRACTED OVER the Internet, including, without limitation, warranties of : 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT AND 7) TITLE. Software Atlanta shall not be liable to CLIENT OR ANY THIRD PARTY for any cost or damage arising either directly or indirectly from any transaction involving third parties' information, products or services.

5.d. Downloading of Data or Files at Client's Peril. The parties expressly recognize that Software Atlanta cannot and does not guarantee or warrant that files available for downloading through Software Atlanta will be free of infection, viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. Client agrees that it shall be solely responsible for implementing sufficient procedures to satisfy Client's particular requirements for accuracy of data input and output, and for maintaining a means external to Software Atlanta for the reconstruction of any lost data. The parties also expressly recognize that the Internet contains unedited materials, some of which are unlawful, indecent, or offensive to Client, and access to such materials by Client is done at Client's sole risk.

5.e. Loss and Damage. Client hereby assumes and shall bear the entire risk of loss or damage to Client's equipment from any and every cause whatsoever. There will be no refunds or extensions of service dates provided for any reason including, but not limited to the following; the damage or loss of Client's equipment, Client's delays or inability to design its Web Pages, Client's inability to properly upload its Web Site to Software Atlanta's servers as instructed, failure to report service problems to Software Atlanta immediately, or for any other reason.

6. TERMINATION.

6.a. Termination by Software Atlanta.

6.a.i. No cause. Software Atlanta reserves the right to, and Client agrees that Software Atlanta may, terminate any and all services to Client for no cause and without any reason upon thirty (30) days notice.
 

6.a.ii. Cause. Software Atlanta reserves the right to, and Client agrees that Software Atlanta may, cancel this Agreement and terminate any and all services to Client immediately and without prior notice, in the event that Client fails to fulfill any material obligation contained in this Agreement. SOFTWARE ATLANTA RESERVES THE RIGHT TO USE SELF-HELP TO THE GREATEST EXTENT PERMITTED UNDER THE LAW, INCLUDING, BUT NOT LIMITED TO, ELECTRONIC REMEDIES.

6.b. Post-Termination Rights.

6.b.i. Fees Owed to Software Atlanta. After termination by any party for any reason, Software Atlanta shall retain the right to recover all accrued charges due and owing by Client to Software Atlanta. In addition to any fees owed, Client agrees to pay any and all reasonable attorney's fees, interest, late fees and collection costs in addition to the fees owed.

6.b.ii. Continued Indemnification. The indemnification under Paragraphs 2.b.iii., 2.b.iv., above, shall survive any termination of this Agreement.

7. CONFIDENTIAL INFORMATION. The parties recognize that each shall come into possession of information that comprises information ("Confidential Information") which is exclusively owned by the conveying party and is not considered to be public knowledge. Both parties expressly recognize that Confidential Information is being conveyed to them under conditions of Confidentiality, and agree that they shall not disclose Confidential Information to any third party during the term of this Agreement, and for a period of five (5) years following the termination or expiration of this Agreement. The parties may, however, disclose Confidential Information only to other persons who need to know Confidential Information in order to assure the parties compliance with the other terms and conditions of this Agreement. Anything that is expected to be kept confidential by the receiving party must be announced and clearly identified as being confidential by the party providing the Confidential Information.

8. REMEDIES. The failure of either party to seek relief for the other party's breach of any duty under this Agreement shall not waive any right of the non-breaching party's to seek relief for any subsequent breach.

9. GOVERNING LAW AND JURISDICTION. The construction, validity and performance of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia, and the parties expressly waive their choice of law rules. The parties agree that venue and jurisdiction for any litigation arising out of, related to, or regarding the validity of, this Agreement shall lie in the County of Gwinnett, State of Georgia.

10. NOTICE. All notices must be in writing, and must be delivered or sent by registered or certified mail, return receipt requested, courier or by Federal Express or other overnight courier service, postage prepaid. Any such notice shall be deemed given upon delivery. Notices transmitted orally shall be deemed insufficient notice.

11. ENTIRE AGREEMENT. This Agreement and Attachments supersede any and all other agreements, either oral or in writing, between parties with respect to the matters stated herein, and this Agreement contains all of the covenants and agreements, either oral or in writing, between parties with respect to the matters stated herein, and this Agreement contains all of the covenants and agreements between the parties with respect thereto. This Agreement may be amended or modified only in writing, and shall be effective only after affixation of both party's signatures.

12. SERVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable for any reason whatsoever, the remaining provisions shall remain valid and unimpaired and shall continue in full force and effect.

13. CAPTIONS. Captions contained in this Agreement are for reference purposes only, and are not intended by either party to describe, interpret, define, broaden or limit the scope, extent or intent of this Agreement or any of its provisions.

14. KNOWING CONSENT AND AUTHORITY TO CONSENT. The parties knowingly and expressly consent to the foregoing terms and conditions. Each party is authorized to enter into this Agreement on behalf of its respective party.

15. RENEWAL OF CONTRACT. This Agreement shall continue in full force and renew from month to month. Either party may cancel this Agreement by giving the other party notice of Termination at least 30 days prior to the expected termination date. All past due balances must be paid and all costs of termination or transfer must be paid before any domain name or web site can be released by Software Atlanta.

 

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