5. CUSTOMER RESPONSIBILITIES
In addition to the obligations of Customer as otherwise specified in
this Agreement, Customer shall be solely responsible for the
following:
a. Selection of products and services, including the Services, to
achieve Customer's intended results;
b. The accuracy and content of any information provided by Customer
to Site Leader;
c. Any information, programs and other information that Customer
receives as a result of the use of the Services, including, without
limitation, the entire responsibility for any losses of data,
programs, breaches of security, viruses, and disabling or harmful
devices that Customer may download or otherwise experience as a result
of Customer's use of the Services; and
d. Customer agrees to use the Services in a manner consistent with
any and all applicable laws and regulations.
e. Customer is responsible for directly updating, or notifying
Site Leader, of any changes to credit card information (including, but not
limited to e-mail address, card number, expiration date, billing address,
telephone number, fax number and card status).
f. In an effort to maintain uninterrupted Internet service to you, we make every attempt to automatically renew yourr account. If after 3 (three) attempts, the credit card information on file, declines the current charge, a processing fee of $25.00 will be assessed.
6. OWNERSHIP
All materials, documentation, computer programs, inventions
(whether or not patentable), pictures, audio, video, artistic works,
and all works of authorship, including all worldwide rights therein
under patent, copyright, trade secret, or other property right,
created or developed by Site Leader while providing Services
(collectively, Work Product) is owned by Site Leader. Work Product
shall not include the Confidential Information of Customer. If
ownership of all right, title, and interest of the intellectual
property rights in the Work Product shall not otherwise vest
exclusively in Site Leader, Customer hereby assigns to Site Leader,
and upon the future creation thereof automatically assigns to Site
Leader, without further consideration, the ownership of all Work
Product.
7. LIMITED WARRANTY
Site Leader warrants that for a period of 30 days from the date of
first installation of Customer's completed HomePage on the server
described above, the coding of such HomePage shall be reasonably
HTML-compliant. Notwithstanding the foregoing, the sole and exclusive
remedy for a breach of the warranties contained in this Section 7
shall be that Site Leader shall replace the nonconforming coding to
make such HomePage reasonably HTML-compliant. Customer acknowledges
that HTML is an industry standard that contains some ambiguous
provisions and that does not completely address all issues associated
with the coding of Home Pages accessible via the World Wide Web.
Customer also acknowledges that HTML is a standard that will be
amended from time to time and that not all "browsers" used
by third parties to access the World Wide Web implement HTML in the
same way. Variations in HTML coding associated with ambiguities or
revisions to the HTML standard or variations among World Wide Web
browsers shall not be the basis for a claim of breach of Site Leader's
warranties under this Agreement. The warranties described in this
section 7 are subject to the limitations of liability described below:
Except as provided in this section 7, Site Leader does not make any
express or implied warranties with respect to the Services or any
products provided under this Agreement, including but not restricted
to, the implied warranties of merchantability and fitness for a
particular purpose. Some states do not allow the exclusion of implied
warranties, so the above exclusion may not apply to Customer. Customer
may also have other rights that may vary from state to state.
8. LIMITATION OF LIABILITY
In no event will Site Leader be liable
to Customer for any indirect, incidental, or consequential damages arising out of the
Services or any products provided under this Agreement, even if
Site Leader has been advised of the possibility of such damages.
Some states do not allow the limitation or exclusion of liability for
incidental or consequential damages, so the above limitation or exclusion
may not apply to Customer. You waive all claims to
lost profits. Site Leader's liability to Customer for actual damages
for any cause whatsoever, regardless of the form of the action,
will be strictly limited to a maximum of the payment made for the
prior 1 (one) month.
Customer will take all reasonable and necessary measures to
preclude Site Leader from being made party to any lawsuit or claim
regarding Services provided to any Customer or endorser. Customer
hereby agrees to indemnify and hold harmless Site Leader from any and
all claims of whatever nature brought by any of Customer's clients
or users of Customer's HomePage against Site Leader in excess of the
remedy set forth above.
9. LIMITATIONS OF SERVICE
Unfortunately, computers need routine maintenance and sometimes break
down; also, Site Leader cannot control the timing or volume of
attempts to access Site Leader's server. As a result, Site Leader
does not guarantee that Customer or any third parties will be able to
access the Customer's HomePage at any particular time. Site Leader
Services are provided on an "as-is, as-available" basis.
Site Leader may discontinue service or may require the fulfillment
of conditions Site Leader chooses to impose as a prerequisite for
continued service. Such discontinuation or requirement may not be
unreasonable, however, and Site Leader agrees to provide Customer with
reasonable notice via E-mail or fax of any such intent to discontinue
or impose conditions. Such discontinuation of service shall include
the deletion of Customer data, including but not limited to Customer
files, source codes, programs, graphics, E-mail and documents.
10. CONFIDENTIAL INFORMATION
(a) Each party hereto shall
(i) use the same care and discretion, but in no event less than
reasonable care and discretion, to prevent disclosure, publication, or
dissemination of the other party's Confidential Information (defined
below) as it employs with similar information of its own; and
(ii) not use, reproduce, distribute, disclose, or otherwise
disseminate the other party's Confidential Information except in
connection with the performance of its obligations under this
Agreement.
(b) As used herein the term "Confidential Information"
means any and all data and information relating to the business of the
disclosing party which:
(i) the receiving party becomes aware as a consequence of, or
through, this Agreement;
(ii) has value to the disclosing party and is not generally known
by its competitors;
(iii) is treated by the disclosing party as confidential; and
(iv) has been reduced to tangible form and marked clearly
and conspicuously with a legend identifying its confidential or
proprietary nature; provided, however, that Confidential Information
does not include any data or information which is already known to the
receiving party, or which
a. has become generally known to the public through wrongful act
of the receiving party;
b. has been rightfully received by the receiving party from a third
party without restriction on disclosure and without, to the knowledge
of the receiving party, a breach of an obligation of confidentiality
running directly or indirectly to the other party hereto;
c. has been disclosed pursuant to a requirement of a governmental
agency or of law without similar restrictions or other protection
against public disclosure, or is required to be disclosed by operation
of law;
d. is independently developed by the receiving party without use,
directly or indirectly, of the Confidential Information received from
the other party hereto; or
e. is furnished to a third party by the disclosing party hereunder
without restrictions on the third party's right to disclose the
information.
Confidential Information may include, but is not limited to,
information relating to the products, processes, or financial affairs
of the disclosing party.
11. RELATIONSHIP OF THE PARTIES
The relationship between Site Leader and the Customer is that of
vendor and vendee. Site Leader and Customer shall not be construed as
being joint ventures, franchiser/franchisee, or employer/employee.
This Agreement is a commercial agreement between businesses, not a
consumer agreement. Customer has no authority, apparent or otherwise,
to contract for or on behalf of Site Leader, or in any other way
legally bind Site Leader in any fashion, nor shall Customer be
authorized to make any representations about Site Leader or its
services other than to set forth Site Leader's responsibilities as
outlined in this Agreement.
12. DISPUTES
The parties shall attempt to resolve all disputes
arising out of this Agreement in a spirit of cooperation without formal
proceedings. Any dispute which cannot be so resolved (other than the
collection of money due on unpaid invoices) shall be subject to
arbitration upon written demand of either party. Arbitration shall take
place in location. The arbitration shall take place before an arbitration panel chosen
as follows: The parties shall each choose an arbitrator, and the two
arbitrators shall choose a third arbitrator and determine the third
arbitrator's compensation. Each party shall have one veto over the choice
of the third arbitrator. The three arbitrators shall schedule an informal
proceeding, hear the arguments, and decide the matter by secret majority
vote. Unless the arbitrators decide otherwise, each party shall pay the
costs of its own arbitrator, and shall pay half of the other costs of the
arbitration proceeding. Each party shall have the right to have the
proceedings transcribed. The arbitrators shall not have the authority to
award punitive damages or any other form of relief not contemplated in the
contract. The majority of arbitrators shall render a written opinion
setting forth the basis on which they arrived at the decision regarding
each issue submitted to arbitration; the dissenting arbitrator, if any,
shall not issue a dissenting opinion. Regarding each issue submitted to
arbitration, the decision shall be final and binding only to the extent it
is accompanied by a written explanation of the basis upon which it was
arrived at. Judgment upon the award, if any, rendered by the arbitrators
may be entered in any court having jurisdiction thereof. Should any legal
action permissible under the Agreement be instituted to enforce the terms
and conditions of this Agreement, in particular the right to collect money
due on unpaid invoices, the prevailing party shall be entitled to recover reasonable
attorney's fees and expenses incurred at both the trial and
appellate levels. This Agreement shall be governed in all respects without regard to conflict of
laws provisions, and Customer and Site Leader agree that the
sole venue and jurisdiction for legal actions arising from this Agreement
shall be the appropriate state or federal cour
13. MISCELLANEOUS
Should any part of this Agreement, for any reason, be declared
invalid by a court of competent jurisdiction, such determination shall
not affect the validity of any remaining portion, and such remaining
portion shall remain in full force and effect. This Agreement is
governed by and construed in accordance with the laws without regard to its rules governing conflicts of law. This
Agreement shall be binding upon and inure to the benefit of each party
and their respective heirs, successors and assigns.
14. NOTICES
All notices may be sent by E-mail, fax, or express mail to the
E-mail address, fax number, or address most recently provided and will
be effective upon transmission. Evidence of successful transmission
shall be retained.
15. ENTIRE AGREEMENT, MODIFICATIONS
This Agreement sets forth the entire Agreement and
understanding between the parties and merges all prior discussion between
them. No representations, statements, or inducements, oral or written, not
contained herein shall bind either party. Site Leader may make changes to
this Agreement. Notice shall be accomplished by posting the change(s)
on the Site Leader website located at http://www.siteleader.com/customeragreement.php .
Utilization of Site Leader Services by Customer and/or its Customers
following the effective date of such change shall constitute acceptance by
Customer of such change(s). Otherwise, this Agreement may not be modified
except by the written consent of both parties.
EXHIBIT "A"
