MONTHLY SOFTWARE AND HOSTING AGREEMENT

Transcription

1 AIN No: BO2476 MONTHLY SOFTWARE AND HOSTING AGREEMENT The following agreement ( Agreement ) contains the complete terms and conditions that will apply between you ( Customer ) and TopDawg Pet Supply, Inc. ( TopDawg ), a Florida corporation having a business office and address at 2 S. University Dr. #265, Plantation, Florida 33324, if all of the following conditions are met: (1) you read and agree to the terms and conditions of the Agreement and indicate your acceptance of the terms and conditions of the Agreement by clicking I Agree at the Order Page; (2) you fully and correctly submit all information requested of you in the following Order Form; and (3) you submit proper payment pursuant to Section 3, of this Agreement. This Agreement shall become effective on the date (the Effective Date ) that payment is received and accepted by TopDawg. TOPDAWG IS WILLING TO PROVIDE SOFTWARE AND HOSTING SERVICES TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS HEREIN, TOPDAWG IS UNWILLING TO PROVIDE SOFTWARE AND HOSTING SERVICES TO YOU. WHEREAS, TopDawg has developed, owns and markets proprietary, Internet-based, e- commerce solutions and offers web site hosting services on the Internet; and WHEREAS Customer wishes to make use of the e-commerce solutions and retain the web site hosting services of TopDawg; NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, TopDawg and Customer agree as follows: 1. DEFINITIONS A. Customer s Content means any and all material developed, purchased, or otherwise acquired by Customer that is published, made available or otherwise used in conjunction with Customer s Web Site. Customer s Content includes, but is not limited to, end user data collected by Customer, and information regarding merchandise or services sold by Customer through its Web Site. B. Hosting Services means the services described in Section 2.A of this Agreement.

2 C. Software means the TopDawg ecommerce software, current release version, including any updates provided by TopDawg, and TopDawg s proprietary technology and source code. D. TopDawg s Content means any and all material developed by TopDawg and made available for use by Customer, including any designing of Customer s Web Site, and templates prepared by TopDawg for use by Customer. E. Web Site means Customer s Internet presence, identified by the domain name provided by Customer. 2. SOFTWARE, HOSTING SERVICES, AND DELIVERY A. Hosting Services. TopDawg shall provide storage for the Software, and content of Customer s Web Site and make it available for end-users to access; B. Service Level Warranty. TopDawg guarantees that the network will be available 99.99% of the time in a given month. This service level warranty shall not apply to performance issues: (1) to the extent caused by factors outside of TopDawg s reasonable control; (2) that resulted from any actions or inactions of Customer or any third parties not affiliated with TopDawg; (3) that resulted from Customer s equipment and/or third party equipment; (4) that resulted from software related issues; or (5) that are scheduled by TopDawg for purposes of maintaining or updating the Web Site or the Software. Upon experiencing network downtime above and beyond the 99% availability, TopDawg will refund a customer 5% of the monthly fee for each 30 minutes of downtime (up to and not to exceed 50% of customer s monthly fee). Network downtime exists when a particular customer is unable to transmit and receive data. C. Delivery. An approximate delivery date for any website purchased is business days from the time of initial purchase. If TopDawg fails to deliver the product or supplies necessary to begin substantial operation of the business within 45 days of the delivery date stated in Customer s contract, Customer may notify TopDawg in writing and cancel the contract. 3. FEES A. Fees. In consideration of the services provided, Customer will pay to TopDawg all fees due according to the prices and terms listed on the plan chosen on Section 21 of this agreement. All sales are final and TopDawg offers no partial or full refunds of any kind on any purchase. B. Change in Fees. TopDawg may change its fee schedules on sixty (60) days notice by postal mail, electronic mail, or by posting the same on TopDawg s own Web Site. Upon such notice, Customer shall have thirty (30) calendar days prior to the effective date of the fee schedule to notify TopDawg by certified postal mail should it not agree to such rate increase and that Customer wishes to terminate this Agreement. C. Payment. TopDawg will automatically charge Customer once a month for their scheduled fees. If a payment is declined or rejected by TopDawg s bank or credit card

3 processing terminal, or incurs additional costs for TopDawg (e.g., bank fees) for any reason, then Customer shall pay a service fee of $40 and reimburse all such fees and costs incurred by TopDawg, and Customer shall be immediately deemed to be in default of this Agreement. Accounts not paid in full by the tenth day after TopDawg submits its scheduled recurring monthly fee may have their service interrupted or terminated, but any interruption does not relieve Customer from the obligation to pay all fees due to TopDawg, including the monthly account charge. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is less, until fully paid. If Customer defaults, Customer agrees to pay TopDawg its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights. D. Taxes. All fees charged by TopDawg for the Hosting Services are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Hosting Services, all of which Customer will be responsible for and will pay in full, except for taxes based on TopDawg s net income. If TopDawg is required to pay directly any such taxes, Customer will, upon receipt of TopDawg s invoice, promptly reimburse TopDawg for any such taxes paid by TopDawg. 4. SUBLICENSE Customer may not sublicense or resell any of TopDawg s Software or Hosting Services to any third parties without the prior written permission of TopDawg. As an example, Customer may not provide Web Hosting services to any third party without TopDawg s prior written permission. Any attempts to do so would be considered a material breach and grounds for termination of this Agreement. 5. USE OF CUSTOMER S NAME AND TRADEMARKS Customer hereby grants TopDawg a non-exclusive right and license to use Customer s name and such of Customer s trade names, trademarks, and service marks (collectively, Customer s Marks ) as are listed on Customer s Content or otherwise provided to TopDawg in connection with this Agreement (a) on TopDawg s own Web Sites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing TopDawg s Services, and, (c) in applications reasonably necessary and ancillary to the foregoing. Customer may use TopDawg s trade name, trademarks, and service marks (collectively, TopDawg s Marks ) in advertising and publicity in conjunction with the offering of Customer s Content via TopDawg, provided that Customer shall submit copy to TopDawg for its prior written approval, and provided further that under no circumstances shall such use imply that TopDawg endorses, sponsors, certifies, approves or is responsible for Customer s Content. Notwithstanding the foregoing, Customer need not obtain TopDawg s prior written approval where use of TopDawg s Marks is limited to inclusion in a list of systems via which Customer s Content is available. 6. TERM AND TERMINATION A. Term. The term of this Services Agreement shall begin on the Effective Date, and shall continue on a month to month basis, unless either Party gives the non-terminating Party Thirty (30) days notice of its election to terminate this Agreement.

4 B. Termination For Breach. Each Party shall have the right to terminate this Agreement upon Fifteen (15) days prior written notice if the other Party is in material breach of any term of this Agreement, including without limitation the payment of monies, and the breaching Party fails to remedy such breach within the fifteen day notice period. C. Canceling Accounts. To cancel your account, your request must be received in writing by certified mail. Please send your written request to TopDawg Pet Supply, Inc. 2 S. University Dr. #265, Plantation, Florida To ensure that you are not billed for another month of service, you must cancel your account before your billing cycle due date. All accounts requesting cancellation are terminated upon receipt of submission. Cancellation requests submitted before the completion of a billing cycle will not receive a prorated refund. All fees scheduled within 30 days after your certified letter of cancellation has been received are not refundable. 7. SECURITY Customer acknowledges that the Internet is not a secure or completely reliable system, and that the purpose of the Hosting Services is to allow end users easy access to Customer s Content. TopDawg will take those precautions TopDawg deems reasonable in its sole discretion to secure Customer s Web Site from attack, but TopDawg makes no warranty that there will be no outages or interruptions of service, or that Customer s Content will be secure against attack of any form by end users or other third parties. 8. CUSTOMER S CONTENT A. Ownership of Content. Customer acknowledges and agrees that (a) unless expressly stated elsewhere, TopDawg has no proprietary, financial, or other interest in Customer s Content; (b) TopDawg does not, by virtue of offering or hosting Customer s Content, edit, distribute, market, sublicense, publish, or otherwise provide Customer s Content to end users; and (c) Customer is solely responsible for the information, data, graphics, text, quality, performance, and all other aspects of its Content. Customer warrants that it owns or has the right to use and offer the Content in connection with Customer s Marks in the manner in which such Content is offered and will be offered by Customer during the term of this Agreement. B. Protection of Content. Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its Content. Although TopDawg provides data backup services, Customer is advised that TopDawg in no way is responsible for any damages resulting from the loss of Customer s Content, regardless of the reason for such loss. Customer is solely responsible for backing-up/archiving Customer s Content. 9. TOPDAWG S CONTENT Upon payment of any fees charged for the development of TopDawg s Content, TopDawg hereby provides Customer with a non-exclusive, royalty-free, irrevocable, nonsupported license to use TopDawg s Content as part of Customer s Web Site. Customer agrees to maintain a text hyperlink to " at the footer/bottom of the website. The link must be standard html, contain no javascript, and be approved by the Licensor.

5 10. PCI GUIDELINES TopDawg provides a framework to its customers which is CISP certified under optimal security settings. However, if a TopDawg customer chooses to view credit card information, that customer is choosing an inherently less secure set of security settings as well as assuming higher risk that TopDawg does not endorse or recommend. Therefore, if a TopDawg customer chooses to view credit card information, that customer assumes all liability for their actions and the inherent risk associated with viewing credit card information. TopDawg will not be responsible for any such risk or liability regardless of the security settings. Further, if a merchant chooses to view credit card information, they are certifying that they understand and are following all PCI guidelines for viewing credit card information. At its discretion, TopDawg reserves the right to change the security settings of any merchant at any time with or without warning. 11. PROHIBITED PRACTICES TopDawg shall have no duty or obligation to monitor Customer's Content or any other Content provided or distributed by others, and TopDawg shall not edit or otherwise exercise any control over Customer's Content. Nevertheless, TopDawg may, in its sole discretion at any time, without notice to Customer, and without liability to Customer, remove from public view, disconnect, or terminate the hosting of any of Customer's Content or other Content that TopDawg deems in its sole discretion to be offensive or illegal, for any one or more of the following reasons: (i) the content is adjudicated to be in violation of the laws of the state where the server resides; illegal or sexually explicit Content or activities, or any Content that allegedly violates the law, rules or regulations of any country or subdivision thereof; (ii) the content constitutes harassment of Users, including, but not limited to, by means of Customer's billing practices; or (iii) claims made by third parties against TopDawg that Customer or any of its end users has engaged in one or more of the above practices. 12. POINT OF CONTACT Customer shall designate a single Point of Contact in the accompanying Order Form. Customer's Point of Contact shall have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer agrees that TopDawg may rely on representations made by Customer's Point of Contact. Customer may change its Point of Contact at any time by giving written notice to TopDawg in accordance with the notice provisions of this Agreement. TopDawg is under no obligation to accept instructions from anyone other than the Point of Contact. 13. CUSTOMER'S INDEMNIFICATION Customer shall indemnify and hold harmless TopDawg from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and

6 expenses, including reasonable attorneys fees, arising from or relating to Customer's provision, or an end user's use, of Customer's Content, or any act, error, or omission of Customer in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, defective or expired pet supplies resulting in the death of an animal or human, or other intellectual property or other right; or violation of any applicable law. 14. WARRANTIES Each party warrants and represents to the other party that it has the complete right to enter into and perform its responsibilities under this Agreement. 15. DISCLAIMER OF WARRANTIES THE FOREGOING WARRANTIES ARE MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE AND HOSTING SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND TOPDAWG NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR TOPDAWG ANY OTHER LIABILITY IN CONNECTION WITH ANY SOFTWARE OR HOSTING SERVICES PROVIDED UNDER THIS AGREEMENT. 16. LIMITATION OF LIABILITY TOPDAWG ASSUMES NO RESPONSIBILITY WITH RESPECT TO CUSTOMER'S OR END USER'S USE OF THE SOFTWARE OR HOSTING SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF TOPDAWG IS AWARE OF THE POSSIBILITY THEREOF. TOPDAWG SHALL IN NO EVENT BE LIABLE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY IT FROM CUSTOMER FOR THE SERVICES DURING ANY 12- MONTH PERIOD. 17. NO ASSIGNMENT BY CUSTOMER Customer may not assign this Agreement without the prior written consent of TopDawg, which TopDawg may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written permission shall be deemed null and void. TopDawg may assign this Agreement, which shall be effective upon written notice provided to Customer. 18. NOTICES OF TRADEMARK AND COPYRIGHT INFRINGEMENT

7 To cover the increasing cost of processing DMCA, trademark, and copyright infringement claims, TopDawg reserves the right to charge a $250 processing fee for each instance of notification received from a legitimate copyright holder. TopDawg reserves the right to close any store that, upon notification, fails to comply with a legitimate infringement claim within the specified time. 19. NOTICES All notices or communications shall be directed to TOPDAWG by United States mail, postage prepaid, return receipt requested, or comparable letter and package delivery service (i.e. FedEx), at the following address: TopDawg Pet Supply, Inc. 2 S. University Dr. #265 Plantation, FL Notices or communications shall be directed to Customer by United States mail, postage prepaid, return receipt requested, or comparable letter and package delivery service (i.e. FedEx), and addressed to the address of Customer. If Customer is other than an individual, Customer shall designate in writing to TOPDAWG the name and address of its agent to receive notice. Notice to the agent shall be conclusively presumed to be full and adequate notice to Customer. 20. MISCELLANEOUS (i) The laws of the State of Florida shall govern the validity and construction of this Agreement and any dispute arising out of or relating to this Agreement, without regard to the principles of conflict of laws; (ii) THE PARTIES SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF FLORIDA, AND AGREE TO VENUE IN BROWARD COUNTY, FLORIDA; (iii) a ruling by any court that one or more of the provisions contained in this Agreement is invalid, illegal or unenforceable in any respect shall not affect any other provision of this Agreement. Thereafter, this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had been amended to the extent necessary to be enforceable within the jurisdiction of the court making the ruling and to preserve the transactions originally contemplated by this Agreement to the greatest extent possible; (iv) the section and subsection headings have been included for convenience only, are not part of this Agreement and shall not be taken as an interpretation of any provision of this Agreement.; (v) this Agreement may be amended, waived, changed, modified or discharged only by an agreement in writing signed by all of the parties; (vi) this Agreement represents the entire understanding of the parties with respect to the subject matter hereof, and there are no representations, promises, warranties, covenants or understandings with respect thereto other than those contained in this Agreement. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any purchase order issued by Customer with respect to the Hosting Services provided under this Agreement shall not be applicable and that any acceptance of such purchase order by TopDawg shall be for acknowledgment purposes only; (vii) failure to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of that term, covenant or

8 condition or of any other term, covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time; (viii) the remedies set forth in this Agreement are cumulative and are in addition to any other remedies allowed by law. Resort to one form of remedy shall not constitute a waiver of alternate remedies; (ix) wherever used in this Agreement, the singular shall include the plural, and the plural shall include the singular. The use of any gender, tense or conjugation shall include all genders, tenses and conjugations; (x) the Parties are independent contractors and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership; and (xi) this Agreement is only between TopDawg and Customer, and does not make any third-party a beneficiary of this Agreement, whether known or contemplated by either party. Further, this Agreement does not make Customer a third-party beneficiary of any agreement that TopDawg may have with third parties, nor does this Agreement make TopDawg a third-party beneficiary of any agreement that Customer may have with third parties.

9 21. TOTAL INVESTMENT This page verifies that CUSTOMER agrees to purchase an ecommerce website from TopDawg at the: (Gold, Platinum, or VIP) level. Terms of Payment: (Initial the package you are purchasing) GOLD: CUSTOMER agrees to pay a one time Setup fee of $1500 and $99 per month there after for ongoing website maintenance. PLATINUM: CUSTOMER agrees to pay a one time Setup fee of $2900 and $99 per month there after for ongoing website maintenance. VIP: CUSTOMER agrees to pay a one time Setup fee of $4900 and $99 per month there after for ongoing website maintenance. The undersigned has executed this Agreement on the Day of 20. CUSTOMER: TOP DAWG PET SUPPLY, INC. SIGN:. SIGN:. PRINT:. PRINT:. DATE:. DATE:. Domain Name: