THIS WEB HOSTING SERVICE AGREEMENT (hereinafter referred to as “Agreement”) is entered into and is effective as of the signed contract “Effective Date”, by and between Unique Technologies®, (hereinafter referred as “UNIQUE”), and the “CLIENT”.
NOW, THEREFORE, in consideration of the above-stated premises, the mutual promises of the undertakings herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
A. “Copyrights” shall mean all original works of authorship fixed in a tangible medium of expression, owned or licensed by UNIQUE, and related to the design, creation, construction, and development of web-site for Internet access and use.
B. “Trademarks” shall mean all trademarks, trade dress, product, and packaging configurations and other unique elements associated with or embodied in the web-site design and services and any good will associated therewith, owned by UNIQUE.
C. “Licensed Products” shall mean the Copyrights, computer systems, information, techniques, or practices proprietary to and owned by UNIQUE which are disclosed and embodied in the web-site design and services.
D. “Licensed Territory” shall mean the United States and its territories.
II. DESCRIPTION OF SERVICES
UNIQUE shall provide web-site design and set up services (the Service) for CLIENT. CLIENT understands and agrees that the Service is provided “AS-IS” and UNIQUE assumes no responsibility for the timeliness, deletion, mis-delivery, or failure to store any user communications or personalization settings. CLIENT is responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service provider or airtime charges). CLIENT is responsible for such fees, including those fees associated with the display or delivery of advertisements. In addition, CLIENT must provide and is responsible for all equipment necessary to access the Service. UNIQUE hereby grants to CLIENT under the Licensed Products, subject to the payment of fees and subject to compliance with the terms and conditions of this Agreement. the following:
A personal, nontransferable, indivisible, and non-exclusive license under this Agreement to use the Licensed Products within the Licensed Territory.
III. SUB-LICENSE RESTRICTIONS
No right to sub-license is granted hereunder.
IV. OBLIGATIONS OF LICENSEE
A. COPYRIGHTS: In keeping with any space limitations, CLIENT shall maintain on its web-site or other computer systems a conspicuous mark identifying the Copyrights and identifying UNIQUE as the owner of the Copyrights.
B. UNIQUE NAME & TRADEMARKS: In keeping with any space limitations, CLIENT agrees that the name and trademarks and/or service marks of UNIQUE, in a size, location, and stylized form approved by UNIQUE, shall be made to appear on all Licensed Products identifying UNIQUE as the owner of the Licensed Products and their name, trademarks and/or service marks.
CLIENT acknowledges that it obtains, pursuant to this Agreement, only the rights set forth in Section II hereof and subject to the terms and conditions set forth herein, and that no title or ownership interest in or to the Licensed Products are transferred to CLIENT.
CLIENT acknowledges that the Licensed Products are confidential and contain trade secrets developed or acquired by UNIQUE through the expenditure of a great deal of time and money. CLIENT agrees to treat the Licensed Products as confidential; not to disclose or permit access to the Licensed Products to any third party without UNIQUE’s prior written permission; and to insure that any employees of CLIENT having access to the Licensed Products are advised of its confidential and proprietary nature, and that they are prohibited from utilizing, or revealing the confidential information or from taking any action otherwise prohibited to CLIENT under this Agreement.
VII. SERVICE PACKAGES
Detailed Descriptions of the various Service Packages available are set forth in Exhibit “A” which can be found here and incorporated by reference. UNIQUE shall provide to CLIENT the following Service Package:
A. Basic Package
B. Premium Package
C. Best Value Package
A. Service Fees: CLIENT shall pay to UNIQUE the following fee:
(1) Quarterly Basic Package: $50.00 charged quarterly.
(2) Yearly Basic Package: $150.00 charged yearly.
(3) Yearly Premium Package: $300.00 charged yearly.
(4) Yearly Best Value Package: $600.00 charged yearly.
B. Payment Due: Service Fees are due and payable on the payment due date of your renewal invoice.
C. Interest on Overdue Fees: CLIENT shall pay interest to UNIQUE upon any and all amounts owed to UNIQUE that are at any time overdue. The interest paid to UNIQUE shall be at the rate of one (1.0%) percent per month or the maximum interest allowed by applicable usury laws, whichever is less.
IX. DISCLAIMER OF WARRANTY
Except as otherwise provided below, UNIQUE makes no representations or warranties, either express or implied, as to the adequacy or sufficiency of the Licensed Products, their freedom from defects of any kind, including freedom from any claim of patent or trade secret infringement that may result from CLIENT’s use thereof. ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES AGAINST INFRINGEMENT ARE HEREBY DISCLAIMED AND LICENSOR SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF THE LICENSED INFORMATION.
X. DURATION, TERMINATION AND EXTENSION
A. Expiration of Agreement: The term of this Agreement shall begin on the date shown in the second line of the first paragraph of this Agreement and shall terminate at 12:00 Midnight on a date one year thereafter unless sooner canceled or terminated as provided in Section X.B below; or unless extended by written amendment or modification signed by the parties as provided in Section XIII.F below.
B. Default, Bankruptcy, etc.: This Agreement and license granted hereunder shall fully cease and terminate, and all rights hereby granted to CLIENT shall revest in UNIQUE for any of the following reasons:
(1) If CLIENT fails to make any fee payment or any royalty payment within forty-five days (45) after the date due.
(2) At the option of either party in the event that the other party shall fail to comply with any of its obligations to be performed hereunder (other than CLIENT’s payment obligations) by giving sixty (60) days’ advance notice in writing of such termination to such other party; provided, however that if the party in default shall within the 60-day period remedy the failure or default upon which such notice is based then such notice shall not become effective and this Agreement shall continue in full force and effect.
(3) In the event that:
(a) CLIENT shall suffer or permit this Agreement and license granted hereunder to pass to any other person by agreement, operation of law, or otherwise;
(b) any receiver or trustee shall be appointed for the assets of the CLIENT under any provisions of the insolvency or bankruptcy laws of the CLIENT’s country or state.
C. Termination Without Prejudice: Any termination of the license hereby granted shall be without prejudice as to any obligation of either party to the other accrued prior to or at such termination. Applicable payments shall be payable under Section VII.
D. Extension of Term: Any extension of the term of this Agreement shall only be valid and effective upon a written amendment or modification signed by the parties.
CLIENT hereby indemnifies UNIQUE for all losses, including costs, expenses, and reasonable attorneys fees. and agrees to hold UNIQUE harmless from any claim or suit arising out of any unauthorized use of any patent, process, method or device by CLIENT in connection with Licensed Products covered by this Agreement and from any claim or suit arising out of CLIENT’s use of Licensed Products except as authorized in this Agreement.
CLIENT shall undertake and conduct the defense of any suit so brought provided that UNIQUE shall give prompt written notice to CLIENT of any such claim or suit.
XII. PROSECUTION AND ENFORCEMENT
UNIQUE shall have the right and discretion to prosecute claims and suits against infringement or imitation by others of the Licensed Products within the Licensed Territory. CLIENT shall assist UNIQUE, to the extent necessary, in the prosecution of any claim or suit against such infringement or imitations. UNIQUE shall notify CLIENT, in writing, of any infringements or imitations by others of the LICENSED PRODUCTS.
XIII. MISCELLANEOUS PROVISIONS
A. No Right of Survivorship and Non-Transferability: CLIENT’s Account is non-transferable and rights to your Unique Technologies I.D., or contents within your account terminate upon your death. Upon receipt of a copy of your death certificate, your account may be terminated and all contents therein permanently deleted.
B. Waiver: No waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective, except pursuant to a written instrument signed by the party or parties waiving compliance, and any such written waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
C. Governing Law/Venue: This Agreement shall be construed and enforced in accordance with the laws of the State of California, regardless of where this Agreement is executed or performed or the residency of the parties hereto. To the extent possible, any litigation concerning this Agreement shall be brought in a state or federal court of competent jurisdiction located in Orange County, California, and the prevailing party in the action as determined by the court, will be entitled to recover from the other party its court costs and reasonable attorneys fees.
D. Binding Effect: This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and, notwithstanding Section XIII.A., their respective permitted successors and assigns.
E. Survival of Obligations: Confidentiality under Section VI, payment obligations under Section VIII for services performed, and indemnity obligations under Section XI for acts occurring prior to termination of this Agreement shall survive expiration or termination of this Agreement for any reason. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.
F. Complete Agreement: This Agreement constitutes the entire understanding and agreement between UNIQUE and CLIENT with respect to the transactions contemplated herein and supersedes any and all prior oral or written communications with respect to the subject matter herein.
G. Amendments or Modifications: No amendment or modification of this Agreement shall be valid and enforceable unless in writing signed by the parties.
H. Notices: All notices, payments, or statements under this Agreement shall be in writing and shall be sent by first-class, certified-mail, return receipt requested, postage prepaid, to the party concerned at the address stated herein, or to any substituted address given by notice hereunder. Any such notice, payment, or statement shall be considered sent or made on the day deposited in the mails.
I. Approval: The parties acknowledge having carefully read this Agreement and having consulted or having the opportunity to consult counsel, have indicated their agreement to all of the above terms by signing this Agreement.
J. Counterparts: This Agreement may be signed in Counterpart by the parties hereto; and UNIQUE and CLIENT each acknowledge receiving a copy of this Agreement with original signatures of the parties thereon.