This agreement ("Agreement") is between Ken Freeman (dba "Awebstore 'e Solutions", "Site-Keeper", "Awebstore Host"), a Texas sole-proprietorship,
herein by reference ("Vendor") located at 468 Highland Lake Road, Marshall, Texas, 75672, and the client herein described as the ("Customer")
specified in the subsequent
Order Form annexed herein by reference ("Order"). The agreement is made effective as of the date of the receipt of this completed agreement and
in force for up to 12 calendar months.
Overview
This agreement in conjunction with the "Vendor" Acceptable Use Policy annexed herein by reference (AUP) and Service Level Agreement (SLA) and
Non-Disclosure Agreement (NDA) are intended to cover any
and all services provided by "Vendor" which will be received by the Customer. This service agreement and annexed AUP together, contain the entire
understanding between "Vendor" and Customer with respect to the services ("Services") described in this agreement and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral or written, between
"Vendor" and Customer. Customer acknowledges and agrees that its entire right relating to "Vendor" Services are as set forth
in this agreement and hereby waives all other rights that it may have by implication of law or otherwise.
Indicate by the appropriate check mark that you have read and agree to these individual agreements.
1. Services
Subject to the terms and conditions of this agreement, "Vendor" agrees to provide the web services
specified in the Service Order Form and the attached Appendix A. Subject to Customer's right to terminate this agreement
in accordance with Section 4.0 of this agreement, "Vendor" may expand or contract the scope of "Vendor"'s services by
issuing an amended order form to the Customer in advance of such change. In addition, "Vendor" may from time to time perform
certain additional services on an hourly fee basis (the "Supplemental Services"), such as software installations,
customizations, and troubleshooting. Supplemental services will be performed only on Customer's advance approval
and will be invoiced at "Vendor's" published rates or other rates approved by Customer.
1. Web Design Services - all creative design and programming services provided to the Customer by the "Vendor". 2. Web Site Upkeep Services - all site maintenance and ongoing-changes provided to the Customer by the "Vendor". 3. Web Hosting Services - all hosting services provided to the Customer by the "Vendor". 4. Third Party Software - all third party software acquired for or provided to Customer by the "Vendor".
2. Term
The initial term of this Agreement is stated in this Master Services Agreement ("Initial Term"). The Initial Term shall not commence
until "Vendor" accepts and confirms the completed order form from the Customer and until first payment as set out
in the Order is made in full by the Customer for Services to be provided during the Initial Term. If upon expiration of the
Initial Term no Renewal Term has been established by agreement of the parties the Agreement shall automatically renew for
successive 12-month terms until "Vendor" or the Customer provides the other with (30) thirty days advance written
notice of termination.
3. Fees and Payment
The Customer agrees to pay "Vendor", without limitation, for services provided. Customer is fully responsible to ensure
payment of any and all amounts due, are paid on time independently of receiving any invoices or billing notifications from
"Vendor". Customer is responsible for keeping their contact and billing information up-to-date and accurate, including
but not limited to a properly functioning and reachable email address and telephone number. Monthly recurring fees are due
in advance by the 1st day of each calendar month. Invoices for Supplemental Services are due on receipt. All fees billed or assessed
by the "Vendor" are issued as non-refundable fees . Services provided are custom creative and/or technical services. Services are sold on an "as is" basis.
There are no refunds for services rendered by the "Vendor" or any of its affiliates, contractors, individual laborers, or technicians.
Invoices for recurring fees will be provided as a courtesy to Customer via email. Copies of same invoices may be sent by postal mail on request).
"Vendor" assumes no responsibility for invoices lost or not received. Dollar amounts and costs indicated for all
"Vendor" services are in US currency, unless otherwise stated. All fees are non-refundable. All invoices are to be paid within 10 days of receipt of the invoice.
Late payments greater than 10 days late are subject to a $25 late fee penalty. Payments later than 30 days are subject to termination of your hosting account.
Terminated accounts are subject to a $50 reconnection fee to restore hosting account. Data stored on the web server is held for 60 days. After 60 days,
any data or files stored on the server will be removed including backup files. "Vendor" accepts no responsibility for the files or data lost
after an account has been terminated.
Payment of any invoice or agreement or service ticket notice provided by the "Vendor" subjects the Customer to the terms and conditions as
set forth in this Master Service Agreement in concert with the Acceptable Use Policy and Services Order Form.
3.1 Overdue Accounts - Overdue accounts may, at the discretion of "Vendor", be issued a late payment reminder and/or 72 hour
disconnection warning notice. Regardless of receiving a late payment reminder or disconnection notice all overdue accounts will be
suspended/disconnected from the Internet for a period of 72 hours. Disconnected accounts are cancelled automatically after
72 hours unless: payment is received in full or alternative, suitable arrangements are made with "Vendor".
A minimum $50 reconnection fee will be charged on all accounts reconnected after being suspended/disconnected.
NOTE: If an account is cancelled, there is NO possibility that it can be restored and/or its data recovered.
3.2 Other Charges - Customers will pay all sales and value-added taxes, duties or levies imposed by any authority, government,
or government agency in connection with the "Vendor" web hosting and related services as provided under this agreement.
Customers are responsible for collecting such taxes, duties or levies from end users as imposed by authority,
government, government agency or commission. "Vendor" charges Texas residents .0825% Texas Sales Tax unless Customer provides and
Exemption Certificate.
"Vendor" reserves the right to charge the Customer standard hourly rates $100/hour US ($50.00 minimum per instance) to cover the resolution
of excessive or unusual problems or complaints.
4. Cancellation Policy
All dedicated server contracts, unless otherwise negotiated, are for a minimum 12-month term.
The cancellation of any contract by the Customer must occur in writing to the address above or using our official cancellation form.
The form must be submitted at least (30) thirty days prior to the requested cancellation date. There are no partial refunds
or credits for early cancellations. All payments to "Vendor" are final and non-refundable.
5. Acceptable Use Policy
Customers shall at all times comply with and help ensure that they and their clients comply with the terms and conditions
of the current version of the Acceptable Use Policy (AUP) posted on this website. Customer agrees that "Vendor" may amend the terms of
the AUP from time to time by posting a new or different version of the Acceptable Use Policy at this website. The Customer shall include
the terms and conditions set out in the Acceptable Use Policy in an Acceptable Use Policy with its own clients.
Violation of the terms set forth in "Vendor"'s AUP will result in an immediate and indefinite suspension of Customer's
services solely at the discretion of "Vendor".
6. Temporary Service Suspension (the 1% of 99% uptime guarantee)
The Customer agrees that it may be necessary for "Vendor" to temporarily suspend services for technical reasons or to
maintain the "Vendor" network, the Equipment or any other facilities, including the data center in which the servers are housed,
the timing of which will be as determined by
"Vendor". Such suspension of the Services will not be an interruption of the "Vendor" Services for the purpose of
calculating SLA refunds in Item 6 above. According to the Hosting agreement 99% guaranteed uptime, 1% of maintenance downtime
represents a cumulative time of 87.6 hours out of an annual 8,760 hours or 100% of a 12 month, 24 / 7 rate of uptime availability.
The SLA guarantee begins after the 1% of Temporary Service Suspension is completed.
7. Emergency Service Suspension
"Vendor" may interrupt the Services at any time for any duration of time, without penalty or liability for any claim
by the Customer, where necessary to prevent improper or unlawful use of "Vendor" Services or network. Such suspension
of Services will not be an interruption for the purpose of calculating the Customer's entitlement to credit per Item 6 above.
8. Data Backups
If you select the managed backup option, "Vendor" offers offsite data backup services for your critical data files. We make
every effort to ensure the reliability of this process. However, because of technical issues regarding backups on live
servers and the possibility of data corruption on backup and restore, "Vendor" cannot guarantee any data can be fully restored.
The Customer will hold "Vendor" harmless, without penalty or liability for any claim resulting from a failed backup and/or restore procedure.
To insure that each client has a valid back up of their site, a Master CD of their web site as it appeared on the
server originally will be burned upon activation of the hosting account. This is stored at the "Vendor" office in a fire-protected safe.
Customer may request optional burns of their web site for only $25 per additional burn.
9. Compromised/Hacked Server
A compromised or "hacked" server is a serious threat to our network. "Vendor", at its sole discretion, will take any and all measures
to prevent a compromised server from doing additional damage to its own system and files or to the rest of the network.
Customer holds the "Vendor" harmless without penalty or liability for any claim resulting from a compromised or hacked server.
Determination that a server has been compromised:
By the Client - If you believe your system may have been hacked, immediately report the situation to "Vendor" technical support.
The proper protocol to use to report suspected compromise or hacking is found at Help Desk
"Vendor" will examine your system and may implement additional monitoring of your system. Any additional external monitoring of your server
will be billed at the rate of $49.95 per month. Customer will be notified by the "Vendor" 24 hours before external monitoring will begin.
By "Vendor" - If a "Vendor" System Administrator believes a server on our network is compromised,
"Vendor" will: 1) escalate immediately to the Security Administrator for investigation, 2) contact the client, and 3)
provide evidence of the server being "hacked." If necessary, "Vendor" will replace a compromised server with a
new server and restore the user data from backup onto the new server
(for managed services customers only). If Customer has signed up for our MyBACKUP services,
the first two hours of investigation is included free. After two hours, the normal Supplemental
Services hourly rates will apply in this instance.
10. Unauthorized Use Of Service
Customer is generally responsible for the security of the servers provided pursuant to this Agreement, and "Vendor" agrees
only to perform the specific security services described in the Service Order Form and Appendix A of the Agreement.
Customer shall be responsible for any unauthorized use of the Services by any person, and shall pay all fees incurred
for its account by any person using the Services.
11. Termination of Agreement
If Customer breaches any of its obligations under this agreement or the Acceptable Use Policy (AUP) then
"Vendor" may terminate this agreement at any time and without prior notice.
12. Discretionary Suspension or Cancellation of Services
Customer agrees that "Vendor" may suspend services to Customer without notice and without liability if:
(a) Customer refused to cooperate with any reasonable "Vendor" investigations of any suspected violation of the AUP; (b)
there is a denial of service attack on Customer's servers or other event for which Value Reseller reasonably believes that
the suspension of Services is necessary to protect its network or its other customers; or (c) as requested by law enforcement or government agency.
13. Limitation of Liability
Customer acknowledges and agrees neither "Vendor" nor any of its members, shareholders, directors, officers, employees
or representatives will be liable for any special, indirect, consequential, punitive or exemplary damages, or damages
(including but not limited to damages for loss of profits or savings, loss of data, or loss of use) in connection with this agreement.
If, despite the foregoing limitations, "Vendor" or any of its shareholders, directors, officers,
employees or representatives should become liable to Customer or any other person in connection with this agreement
for ANY REASON, then the maximum aggregate liability of "Vendor", its members, shareholders, directors, officers,
employees and representatives for all such things and to all such parties will be limited to the lesser
of the actual amount of loss or damage suffered by the claimant or the amount payable by Customer to "Vendor"
for one month of service under this agreement.
14. Indemnification
14.1. Customer will indemnify and hold harmless Ken Freeman dba Awebstore e' Solutions, Site-Keeper, and/or "Vendor" and its members, shareholders, directors, officers, employees,
agents, contractors, and representatives from and against all damages, losses, costs and expenses (including but not limited to any and all actual legal fees and costs, travel costs, loss of business, loss of profit or any other form of loss),
fines and liabilities incurred by or awarded, asserted or claimed against "Vendor" or any of its members, shareholders,
directors, officers, employees and representatives in connection with Customer's negligence,
activities or omissions, or breaches of its obligations under this agreement, including claims brought by a person using
or relying upon any advice given or publication produced and distributed by Customer.
14.2. Reciprocal. Each party agrees to indemnify and hold harmless the other party, the other party's affiliates,
and each of their respective officers, directors, agents, and employees from and against any and all claims,
demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest,
expenses and disbursements of any kind and nature whatsoever (including reasonable attorney's fees) brought
by a third party under any theory of legal liability arising out of or related to the indemnifying party's
actual or alleged infringement or misappropriation of a third party's copyright, trade secret, patent, trademark, or other proprietary right.
15. Disclaimer Of Warranties
"Vendor" DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY SECURE.
CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER'S PRIVACY,
CONFIDENTIAL INFORMATION, AND PROPERTY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, "Vendor" DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THE
AGREEMENT INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
CUSTOMER IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN. ALL GOODS AND SERVICES ARE PROVIDED ON
AN "AS IS" BASIS, EXCEPT AS EXPRESSLY STATED IN THE SERVICE LEVEL AGREEMENT OR OTHER PORTION OF THE AGREEMENT.
16. Governing Law
This agreement shall be interpreted in accordance with and be governed in all respects by the laws of the state of Texas and the
laws of the United States applicable therein. The courts of Texas, County of Harrison shall have non-exclusive jurisdiction to
entertain any action or proceeding brought by the parties in connection with this agreement or any alleged breach of this agreement.
17. Customer Acknowledgement
Customer acknowledges that it accepts all risk of any unauthorized or illegal use of the "Vendor" network or any
inter-connected network by third parties. "Vendor" provides no warranties, makes no representations, and accepts no
liability for the unauthorized or illegal access or interference with the Customer's server/network.
18. Electronic Commerce
The Customer is solely responsible for all aspects of their online store, e-business, or reseller hosting services.
This includes, but is not limited to:
The accuracy of statements and materials related to your products and/or services.
The accurate calculation and application of shipping and sales tax.
Processing Customer orders, inquiries and complaints.
Maintaining the confidentiality of Customer's client credit card numbers and private information.
19. "Vendor" Administrative Account and Software
For the purposes of Datacenter, Network, Server maintenance, inventory and related activities, "Vendor" staff and management
retain the right to administrative access to any and all dedicated and shared servers on their network. To facilitate this, all
"Vendor" servers may include a "Vendor" administrative account and/or daemon designed for these purposes.
20.1. Solicitation of employees. Customer agrees that it shall not solicit any "Vendor" employees for employment with customer
or any other person during the term of this Agreement and for twelve (12) months following termination of this Agreement.
20.2 Ownership. Each party acknowledges and agrees that the other party retains exclusive ownership and rights sin its trade secrets,
inventions, copyrights, and other intellectual property, and that "Vendor" shall own any intellectual property that it may develop
in the course of performing the Services. Customer does not acquire any ownership interest or rights to possess AwebstoreHost's
servers or hardware, and has no right of physical access to the hardware. Upon termination of the Agreement,
Customer agrees to promptly release any Internet protocol numbers, addresses or address blocks assigned to Customer
in connection with the Service (but any URL or top level domain or domain name) and agrees that "Vendor" may
take steps to change or remove any such IP addresses.
20.3 Modifications. Except for the following, the Agreement may be amended only by a formal written agreement signed
by both parties: (i) amendments of the AUP as described above. (ii) a Renewal Term may be agreed by means of
"Vendor's" renewal process, and (iii) changes to the "Server Specifications," "Software and Services," or fees section of an existing Service Order Form may be made by an exchange of correspondence (including electronic mail) that includes both parties express consent to the change. The terms on Customer's purchase order or other business forms are not binding on "Vendor" unless they are expressly incorporated into a formal written agreement signed by both parties.
20.4. Non-Waiver. A party's failure or delay in enforcing any provision of the Agreement will not be deemed
a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver
of any of its rights under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous
or future occurrence, whether similar in nature or not.
20.5. Survival. The following provisions will survive expiration or termination of the agreement: fees,
indemnity obligations, confidentiality obligations, provisions limiting liability and disclaiming warranties,
provisions regarding ownership of intellectual property, these miscellaneous provisions that by their nature are
intended to survive termination of the Agreement.
20.6. Force Majeure. "Vendor" shall not be in default of any obligation under the Agreement
if the failure to perform the obligation is due to any event beyond "Vendor's" control, including, without limitation,
significant failure of a portion of the power grid, significant failure of the Internet, Internet carrier outages, equipment failure, natural disaster, war, riot,
insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude
or type for which precautions are not generally taken in the industry.
20.7. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
Neither insurers nor the customers of resellers are third party beneficiaries to this Agreement.
20.8. Severability. In the event any term of this Agreement is held unenforceable by a court having jurisdiction,
the remaining portion of the Agreement will remain in full force and effect, provided that the
Agreement without the unenforceable provision(s) is consistent with the material economic
incentives of the parties leading to the Agreement.
20.9. Relationship between the parties. The parties are independent contractors and not
partners or joint venturers. Neither party is the agent of the other and neither party may
represent to any person that it has the power to bind the other on any agreement. The Agreement is non-exclusive.
"Vendor" may provide service any person, including a competitor of Customer.
20.10. Assignment. Customer may not transfer the Agreement without "Vendor's" prior written consent.
"Vendor's" approval of assignment is contingent on the assignee meeting "Vendor's" credit approval criteria.
"Vendor" may assign the agreement in whole or in part.
20.11. Non-Disclosure. Customer and "Vendor" mutually agree not to disclose the terms or details of this agreement during the term
of the agreement and for up to one calendar year after the termination of this agreement. The specific terms of the Non-Disclosure Agreement (NDA)
is found on the NDA portion of this legal form.
20.12. Agreement. The Service Order Form, Master Services Agreement, Master AUP, and any other "Vendor" addendum to this
Master Services Agreement accepted by Customer are herby incorporated in this Master Services Agreement by reference and together collectively
constitute the Agreement. The Agreement is the complete and exclusive agreement between the parties regarding its subject matter and
superseded and replaces any prior understanding or communication, written or oral.
Review this Master Services Agreement for correctness. Print a copy for your record. Submitting this form to the "Vendor" establishes the date of effectiveness of this agreement.
