from the intial termsafterRevised: April 26, 2019
WEBSITE CREATION AND HOSTING AGREEMENT – BRANDSITES
Hi there! Please continue reading these important Terms. They apply when you buy a subscription or use any of our services. Speaking of which, thank you for your interest and allowing us to be part of your business journey! We appreciate you!
Who are we? We are Success Engine, LLC, an Arizona Limited Liability Company (“Success Engine”).
Who are you? You are a customer, or you represent a customer, of our BrandSite Service (as defined below). So, you be “You” (or “Your”).
Here is what you need to know. Success Engine possesses technical expertise in the field of computer programming and, in particular, the creation and development of website technology; and Whereas, You, desiring to engage Success Engine, accept the engagement to design a website (“BrandSite”) and host the BrandSite in accordance with the terms and conditions set for in this Agreement. Now Therefore, in consideration of the mutual covenants and agreements set forth herein, You and Success Engine agree as follows:
Success Engine is responsible for transferring Your DNS record so that Your domain points to the BrandSite. You are responsible to provide the details to Success Engine to proceed with this process. You understand that if You are replacing Your current site with the BrandSite, and You wish to keep Your current site, You need to continue Your current hosting or need to back up Your current site. You should contact Your current host for these or site restoration services. For the purpose of updating the specific name servers, You grant Success Engine access to the designated domain name to which the BrandSite will direct.
PAYMENT AND BILLING
The fees for the BrandSite Service (“Fees”) are set forth in the Order Form and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and these Terms. You agree to provide BrandSite with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or You otherwise provide Success Engine with credit card information, You authorize Success Engine to bill such credit card (a) at the time that You order the BrandSite Service or other Professional Services set forth in the Order Form, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal. You understand and agree that this is a minimum one year term agreement. If You choose to continue the service after the initial term, you agree to pay the monthly or yearly installments as set forth in the order form.
PAYMENT AND BILLING – YEARLY TERMS
If You choose to continue the service after the initial term, you agree to pay the yearly installment one year from the effective date of this agreement and every year thereafter. All subsequent payments will be automatically billed to Your account. If You choose to terminate this Agreement, You must send an email to [email protected] stating Your request at least 3 business days before the billing cycle. You understand and agree that this is a year by year agreement so there will be no refunds for a partial year of service. If Your payment is declined, You have 7 days to update Your billing information. If payment has not been updated after 7 days, Your BrandSite will be deactivated until You have updated Your payment information. If Your payment is delinquent for 3 weeks or more, Success Engine has the right to delete Your site files from the server.
PAYMENT AND BILLING – MONTHLY TERMS
If You choose to continue the service after the initial term, you agree to pay the monthly installment starting one month from the effective date of this agreement and every month thereafter. All subsequent payments will be automatically billed to Your account. If, after the first twelve months, as described above, You choose to terminate this Agreement, You must send an email to [email protected] stating Your request at least 3 business days before the billing cycle. You understand and agree there will be no refunds for a partial months of service. If Your payment is declined, You have 7 days to update Your billing information. If payment has not been updated after 7 days, Your BrandSite will be deactivated until You have updated Your payment information. If Your payment is delinquent for 3 weeks or more, Success Engine has the right to delete Your site files from the server.
While You retain ownership of any raw photos, video, textual content, recordings, etc. provided to Success Engine by You or Your agent(s), You grant Success Engine, without compensation, the right, permission and authority to use Your name, any raw content or arrangement of said content in any form for any legitimate purpose, including but not limited to efforts to promote, advertise, and market the BrandSite service.
All plugins must be cleared and installed by Success Engine. Any plugins that Success Engine believes could cause a security breach, may be denied.
YOUR ACCESS TO THE BRANDSITE
You have editing level access to the BrandSite which includes access to add and edit pages, posts, images,
video and text content. Once the BrandSite has been published live to the internet, You are responsible for any desired modifications.
Success Engine agrees to host Your BrandSite. Success Engine retains full control and management of hosting services.
Success Engine does not provide email services or support. Any email records on the current DNS will be pointed to the current email system.
RIGHT OF REFUSAL
Success Engine abides by a child-friendly content policy. Success Engine retains the right to deny this service if content or images are considered explicit or obscene at their sole discretion.
Success Engine provides its services “as is” and without warranty of any kind. There is no promise or representation that you will make a certain amount of money, or any money, or not lose money, as a result of using our products and services. Any earnings, revenue, leads or other success stories advertised in correspondence with BrandSites, does not represent any results you may or may not experience as a result of using our products and services.
You are solely responsible for any legal disclaimers, policies or other legal procedures and documents You choose to include on Your BrandSite. You do not hold Success Engine responsible for any claims in conjunction with Your business or BrandSite.
We provide an option to buyout the BrandSite after the initial one year term for $3997. The yearly or monthly installments made from the initial one year term, up to $1750 , are automatically applied to the customer account as a credit towards the buyout. The buyout option may be exercised by request at any point after the initial one year term.
DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY
Disclaimer of All Other Warranties. SUCCESS ENGINE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE BRANDSITE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE BANDSITE WILL BE UNINTERRUPTED OR ERROR-FREE. SUCCESS ENGINE PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE MAXIMUM REMEDY AVAILABLE TO EITHER PARTY IS ANY AMOUNT PAID BY YOU HEREUNDER. SUCCESS ENGINE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
Success Engine Indemnity. In performing services under this Agreement, Success Engine agrees not to design, develop, or provide to You any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), privacy, or other rights of any person or entity. If Success Engine becomes aware of any such possible infringement in the course of performing any work hereunder, Success Engine shall immediately notify You in writing. Success Engine agrees to indemnify, defend, and hold You, Your officers, directors, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of or relating to (a) the Agreement, or (b) the performance of the Agreement, other than Your responsibilities and Your Content.
Your Indemnity. You shall indemnify and hold Success Engine harmless (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Success Engine as a result of any claim, judgment, or adjudication against Success Engine related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by You to Success Engine (the “Customer Content”), or (b) a claim that Success Engine’s use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Success Engine must: (i) give You prompt written notice of a claim; and (ii) allow You to control, and fully cooperate with You in, the defense and all related negotiations.
You may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Success Engine. Success Engine reserves the right to assign subcontractors as needed to this project to ensure completion.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
You and Success Engine agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within twenty (20) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Maricopa County, Arizona and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Arizona sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Arizona or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
© Copyright 2019 BrandSites, a Success Engine Company.