Terms and Conditions Agreement between the National Funeral Directors Association ( NFDA ) and the Firm ( Firm ), which by selecting the various options listed at the end of this Agreement, is selecting Website Construction Services, and Website Hosting Services from NFDA. For the purposes of this Agreement, the following definitions shall apply: "Account" means the Account open with NFDA by the Firm for Website Construction Services and Website Hosting Services. "Content" means all content over which Firm has control on its website. "Registrar" means the domain name registrar used by NFDA to carry out its obligations under this Agreement. "Services" means the Website Construction Services and the Website Hosting Services as described under this Agreement. "Term" means the term of the Agreement as it applies to the Website Hosting Services set forth in Section 2.03 of the Agreement. "Website Construction Fee" means the applicable fee for the Website Constructions Services provided by NFDA. "Website Construction Services" means those services set forth in Article I of the Agreement. "Website Hosting Fees" means the then current fees for the Website Hosting Services provided by NFDA. "Website Hosting Services" means those services provided by NFDA in accordance with Article II of the Agreement. I. Website Construction Services 1.01 - Web Construction Services. If the Firm purchases the Website Construction Services, NFDA shall provide initial set-up of the Firm s website. The Firm may choose from one of several design templates then offered by NFDA. The Website Construction Services include building the website and registering a domain name. 1.02 NFDA Registration of Domain Name. As part of the Website Construction Services, NFDA will register one domain name that the Firm selects if the domain name is available for registration and does not violate any of the policies of NFDA's Registrar or any law or 1 / 6
regulation. If any dispute or cause of action arises out of or is related to the domain name used by the Firm, then, upon the Firm's request, NFDA will attempt to register an alternative domain name chosen by the Firm. The Firm agrees to be bound by the terms of the domain name policy of NFDA's Registrar. For the purpose of administrative ease and to reduce the risk of domain name scams being directed at the Firm, NFDA will register the domain name under the name of "National Funeral Directors Association." However, the Firm retains ownership of the registered domain name. NFDA will release and transfer the registration of the domain name to the Firm upon the written request of the Firm. 1.03 Firm Registration of Domain Name. If the Firm has an existing domain name or wishes to register its own domain name, the Firm shall provide NFDA with the registered domain name. If the Firm has an existing domain name, the Firm will be responsible for paying any applicable transfer fees to the current registrar of the domain name. If the Firm decides to use another registration service for the domain name, then the Firm will be billed by that registrar separately. It is the Firm s responsibility to maintain its domain record and to make sure the domain registration fees are paid up to avoid service disruptions. NFDA will notify the Firm in advance of any required updates (such as DNS or IP address changes) that the Firm will need to make to its domain settings and the date on which these changes should be made. NFDA will not be responsible for making the changes or updates to the Firm s domain settings. NFDA is unable to provide technical support on how to implement these changes through the website of the registrar being used by the Firm. If the Firm is unable to make the required changes through the registrar s website, the Firm will need to contact the technical support department of its registrar. NFDA will not be responsible nor liable for any failure of a website if the Firm does not implement the changes in a timely fashion. 1.04 - Website Construction Fee. The Firm will pay for the Website Construction Services in advance by paying NFDA the then current Website Construction Fee. When registering for the Website Construction Services, the Firm must choose to pay for the Website Construction Services either by credit card or debit card, or check. If the Firm chooses to pay by credit card or debit card, the Firm authorizes NFDA to charge the credit card or debit card to pay for any charges that may apply to the Firm s Account, pursuant to Section 2.04. If the Firm elects to pay NFDA by check, the Website Construction Services will not begin until NFDA has received payment of the Website Construction Fee. II. Website Hosting Services 2.01 - Website Services. NFDA shall host the Firm s website on its high-speed dedicated server during the Term of this Agreement. The Firm will pay the Website Hosting Fee set forth below to NFDA in exchange for the Website Hosting Services. 2.02 - Website Maintenance. As part of the Website Hosting Services, the Firm will be able to add, remove and modify the Firm s on-line obituary listings at any time using a web browser. In addition, the Firm may request one change per month to the Content of its website at no charge. The monthly free change to the Content of the Firm s website may not be carried over 2 / 6
from month-to-month. If it is not used during the month, it expires at the end of the month. Any additional changes to the website will be charged at the then current prices for additional changes. 2.03 - Term. The Website Hosting Services will be provided for an initial term of one (1) year ( Initial Term ). Following the Initial Term, the Website Hosting Services will automatically renew for ninety (90) day renewal term(s) unless terminated pursuant to Section 2.04 (the Renewal Term(s) ). The notice of termination must be sent to the NFDA Webmaster via e-mail or by written notice pursuant to Section 3.08 below. NFDA may also terminate the Website Hosting Agreement upon five (5) days notice to Firm in the event of non-payment for any Website Hosting Services. 2.04 Termination. In order to terminate the Website Hosting Services after the Initial Term, either party must give the other party written notice of termination at least ninety (90) days prior to the end of Initial Term. In order to terminate the Website Hosting Services following any Renewal Term, either party must provide the other party with written notice of termination at least thirty (30) days prior to the end of the Renewal Term. The notice of termination must be sent to the NFDA Webmaster via e-mail or by written notice pursuant to Section 3.08 below. NFDA may also terminate the Website Hosting Agreement upon five (5) days written notice to Firm in the event of non-payment for any Website Hosting Services. 2.05 - Website Hosting Fee. During the Initial Term, the Firm agrees to pay the Website Hosting Fee in advance on a quarterly basis according to the then current price for the Website Hosting Services. During any Renewal Term the Firm agrees to pay for the Renewal Term in advance. The Website Hosting Fee is non-refundable. Quarterly billing of the Website Hosting Fee shall commence upon launch of the completed website or six (6) months after the original order date, whichever occurs first. 2.06 Optional E-mail Service. During the Initial Term or any Renewal Term, the Firm may order optional e-mail service as part of its Website Hosting Services. In order to qualify for the optional e-mail service, the Firm must have its domain name registered by NFDA. The e-mail service provides up to ten (10) e-mail addresses with a combined storage for all mailboxes of 20 MB. There is no fee for initial setup of the e-mail mailboxes. Additional mailboxes may be added for a one-time fee. The quarterly fee for hosting the e-mail service will be included as part of the quarterly Website Hosting Fee. III. Additional Terms Applicable to All Services 3.01 - License Granted to NFDA. The Firm grants NFDA a non-exclusive, worldwide and royalty-free license for the Term hereof to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, or otherwise use the Content of the Firm s website as necessary for the 3 / 6
purpose of rendering and operating the Services to the Firm under this Agreement. The Firm expressly grants to NFDA a license to cache materials distributed or made available for distribution via the Services, including Content supplied by third parties, and agree that this caching is not an infringement upon the Firm s intellectual property right or any third party s intellectual property rights. 3.02 - Warranties and Representations. The Firm warrants, represents and covenants to NFDA that: (a) the Firm possesses the legal right and ability to enter into this Agreement; (b) the Firm will use these Services only for lawful purposes in accordance with this Agreement and all applicable policies and guidelines; (c) the Firm has verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including Content, descriptive claims, warranties, guaranties, nature of business and address where business is conducted; and (d) the Firm s Content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance. 3.03 - Rights of NFDA. NFDA may restrict or remove from its servers any Content that violates this Agreement or any related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party s rights or that potentially violates any laws. If NFDA becomes aware that the Firm has possibly violated this Agreement, any related policies or guidelines, third party rights or laws, NFDA may immediately take corrective action, including restricting or prohibiting any and all uses of Content on NFDA s systems and disabling or removing any of the Firm s Content distributed or made available for distribution via the Services. These rights of action, however, do not obligate NFDA to monitor or exert editorial control over the information available for distribution via the Services. If NFDA takes corrective action because of any possible violation, NFDA will not refund to the Firm any fees paid by the Firm in advance of the corrective action. 3.04 - Disclaimer of Warranties. NFDA exercises no control over, and accepts no responsibility for, the Content of the information passing through NFDA s host computers, network hubs or the Internet. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED AS IS AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NFDA DOES NOT MAKE AND DISCLAIMS, AND FIRM WAIVES ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. 3.05 - Limitations of Liability. IN NO EVENT WILL NFDA HAVE ANY LIABIITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS, OR DEVISES. NFDA WILL HAVE NO LIABILITY WITH RESPECT TO NFDA S OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTIAL, OR PUNITIVE 4 / 6
DAMAGES EVEN IF NFDA HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THE LIABIILTY OF NFDA TO THE FIRM FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT FIRM ACTUALLY PAID TO NFDA UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. 3.06 - NFDA Materials and Intellectual Property. All materials, including any computer software (in object code and source code form), data and information that NFDA or its suppliers or agents develop or provide under this Agreement, and any know-how, methodologies, equipment, or processes NFDA uses to provide the services to the Firm, including all copyrights, trademarks, patents, trade secrets and any other proprietary right therein will remain NFDA s or its supplier s sole and exclusive property. NFDA will also maintain and control ownership of all Internet Protocol ( IP ) numbers and addresses that NFDA may assign to the Firm. NFDA may, in its sole discretion, change or remove any and all IP numbers and addresses. 3.07 - Entire Agreement. This Agreement, in conjunction with all policies and guidelines incorporated by reference, constitutes the entire agreement between the Firm and NFDA with respect to the subject matter of this Agreement, and there are no representations, understandings or agreements that are not fully expressed in this Agreement and the related policies and guidelines. 3.08 - Modifications of Agreement. The Firm agrees during the Term of this Agreement, NFDA may revise the terms and conditions of this Agreement and change the Services provided under this Agreement. Any such revision or change will be binding and effective immediately on the posting of the revised Agreement or any change to services on NFDA's website and upon notification to the Firm by email or regular mail as per the notice provision of this Agreement in Section 3.09 below. If after any such revision or change has been made by NFDA, the Firm decides that they do not wish to be bound by such change, the Firm may terminate this Agreement pursuant to Section 2.03 above. 3.09 - Notice. Unless specified otherwise in this Agreement, any notice, direction, or other communication required or referenced under this Agreement shall be in writing, and shall be effective upon delivery by email or delivery by regular mail. Notice by email to NFDA must be sent to webmaster@nfda.org. Notice to the Firm shall be sent to the email address provided by the Firm in the Account Information as it may be updated. Notice by regular mail to NFDA shall be sent to: Webmaster National Funeral Directors Association 13625 Bishop's Drive Brookfield, Wisconsin 53005-5607 5 / 6
Notice by regular mail to the Firm shall be sent to the mailing address provided in the Firm's Account Information. Any email communication shall be deemed to have been validly and effectively given on the date of such communication, if such date is a business day and such delivery was made prior to 4:00 p.m. Central Time, and otherwise, on the next business day. Any communications sent via regular mail shall be presumed to have validly and effectively delivered five (5) business days after the date of mailing. IV. ACCEPTANCE 4.01 - Acceptance of Website Construction Services. By selecting I ACCEPT on the order form, the Firm is entering into Sections I, II and III of the Agreement regarding Website Construction Services and Website Hosting Services. Please read the terms carefully before selecting I ACCEPT. By selecting I ACCEPT on the order form, the Firm acknowledges that it has read this Agreement, understands it and agrees to be bound by it. If the Firm does not agree to all these terms, NFDA is unwilling to enter into this Agreement, and the Firm should select I DO NOT ACCEPT or click the CANCEL button on the order form to discontinue this process. 6 / 6