MAWD
TERMS OF SERVICE AGREEMENT
This Terms of Service Agreement (“Agreement”) is entered into on the date of signing by and between Martial Arts Website Design, a division of Blue Phoenix Creative, a Massachusetts company (known hereinafter as “Company”), and you, on behalf of yourself and your company (the “Customer”) and both Company and Customer shall hereinafter be collectively known as “the Parties” or “Both Parties” and either of the Parties may be referred to independently as “Party” or “Either Party” or “Other Party”.
WHEREAS, Company is engaged in the business of providing online website and or marketing services for martial arts schools and dojos online using a template based website, known hereinafter as “Website” and collectively known hereinafter as “Services”, or “the Services”; and WHEREAS, Customer is engaging Company to purchase the Services, including, but not limited to: licensing the Website and the design of Website, the look-and-feel, website layout, website content, and any proprietary software, functionality, or materials, including (but not limited to) any future content management system, marketing materials, and/or marketing software; and WHEREAS, Customer recognizes and agrees that this Agreement does not grant ownership of Website, not are provisions made herein for the sale of Website and that all websites designed, created, or setup in accordance with the terms of this Agreement shall remain the sole property, intellectually and/or tangibly of Company. THEREFORE, in consideration of the preceding premises, Both Parties hereby agree as follows:
1 Services
2 Access
3 Term
4 Payment
5 Warranties; Disclaimer of Warranties
6 Limitation of Liability
7 Subscriber Indemnification
8 Ownership of Work Product
9 Confidentiality
10 Termination
11 Effect of Termination
12 General
12.1 Notices
12.2 Force Majeure
12.3 Arbitration
12.4 Assignment
12.5 Entire Agreement
12.6 Amendment
12.7 Severability
12.8 No Waiver
12.9 Separate Counsel
12.10 Further Action
12.11 Governing Law
12.12 Attorney’s Fees
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1. Services
Company has the right to determine what constitutes as a service and what is constituted as the Services. Company hereby grants Customer a non-exclusive, non-transferable, limited-right and limited-license to access the Services during the term of this Agreement. This license is solely for the use of Customer and its members and users, to the extent applicable.
Customer is not licensed herein and Customer agrees it has no right to sublicense, or resell, or distribute any access to or use of the Services in any form. Customer unconditionally agrees it will not grant any third-party the right to access any administrative portion of the Services. Additionally, Customer will not attempt to copy or appropriate any part of the Website and/or its entirety.
2. Access
Customer's access to the various services available via Company's Services or on Company's system depends on the level of access you select. We reserve the right to modify, suspend, or terminate access to Services on our system at any time and for any reason, without any notice or any refund. Company retains the right to require you to change your login information or password. Company also reserves the right to delete all data files associated with your account or your website and/or other information you have on our system; this is especially applicable to, but not limited to, account non-payment or delinquency.
3. Term
This Agreement will remain in full effect for at least an entire year (365 days), after which the agreement will remain in effect until either Party terminates the Agreement upon thirty (30) days’ prior written notice to the other Party.
4. Payment
Customer agrees to pay Company all fees associated with Customer’s account. Payments are to be paid in advance and therefore the first payment will be due on the first day the Customer registers with Company and must payment must be made prior to Company setting up and licensing Website to Customer. The Customer agrees to pay all fees associate with the Customer’s account each month until the Agreement is terminated. This payment schedule begins with the first payment and continues exactly one month to the day of the Agreement being signed. Payment shall be made to the Company as an electronic subscription via Paypal or via ETF/bank-transfer and this method will be determined by Company. Company will charge the credit card or bank account on file until the Agreement is terminated.
In the event of non-payment, if the Customer fails to pay for the fee for Services when due, Company reserves the right and option to determine such failure as a breach of this Agreement. In such an event, Company may terminate Agreement and any provision of Services and/or seek legal remediation. Customer may adjust their fee schedule once per year by adjusting the Services subscription package, for which Customer signed up.
5. Warranties & Disclaimer of Warranties
Company warrants that Services will be executed in a professional and workmanlike manner. Company also warrants that Services will perform in accordance with any documentation provided to Customer by Company. In the event that Company breaches any of these warranties, it will be Customer’s sole remedy for Customer to bring to Company's attention any incidence of non-conformance. In such an event, Company will then use reasonable efforts to correct the error. WITH EXCEPTION OF THESE WARRANTIES, THE CUSTOMER DOES ACKNOWLEDGE THAT THE SERVICES AND THE WEBSITE ARE PROVIDED “AS IS”. COMPANY HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED OR BOTH, INCLUDING ANY IMPLIED WARRANTY AND CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. WITHOUT LIMITATION, COMPANY DOES NOT WARRANT THAT THE SERVICES OR WEBSITE WILL MEET ANY OR ALL OF THE CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. COMPANY ALSO SPECIFICALLY MAKES NO WARRANTIES REGARDING ANY THIRD PARTY COMPONENTS OF ANY KIND WHATSOEVER. BOTH PARTIES AGREE THAT IT IS CUSTOMER’S SOLE RESPONSIBILITY TO ASCERTAIN WHETHER THE SERVICES ARE SUITABLE FOR THE CUSTOMER’S REQUIREMENTS.
6. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR THEIR OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, SUCCESSORS, SUPPLIERS, STRATEGIC PARTNERS, AND/OR ASSIGNS BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS, LOST DATA, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (REGARDLESS OF WHETHER OR NOT THAT PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.
COMPANY’S TOTAL LIABILITY TO THE CUSTOMER AND THE EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR DAMAGES, COSTS, AND EXPENSES, REGARDLESS OF CAUSE, SHALL NOT EXCEED HALF OF THE TOTAL AMOUNT PAYABLE AND PAID TO COMPANY IN THE MOST RECENT FULL CALENDAR YEAR BY THE CUSTOMER UNDER THIS AGREEMENT.
7. SUBSCRIBER INDEMNIFICATION
Customer will defend Company and Blue Phoenix Creative and its officers, directors, managers, employees, agents, successors, suppliers, strategic partners, and assigns from any actual or threatened third party claim arising out of or based upon (a) Customer’s breach of any of its obligations under this Agreement, (b) Customer’s use of any third-party service, or (c) any of the exclusions stated in this document, and indemnify Company from all damages, costs, and attorneys’ fees finally awarded in any such claim or all amounts that Customer agrees to pay to any third party to settle any such claim. Customer’s obligation under this section is contingent on: (a) Company giving Customer prompt written notice of the claim; (b) Company granting Customer full and complete control over the defense and settlement of the claim, provided that Customer may not settle or defend any claim unless Customer unconditionally releases Company of all liability and such settlement does not affect Company’s business or Services; and (c) Company providing assistance in connection with the defense and settlement of the claim as Customer may reasonably request. Company will not defend or settle any claim eligible for indemnification under this section without Customer’s prior written consent.
8. Ownership of Work Product
Any works, ideas, services, specific code, creative assets, discoveries, inventions, patents, products, or other information (collectively known as “Work Product”), whether copyrightable or not-copyrightable, developed in whole or in part by Company, in connection with the Services or with delivery of the Services, will be the exclusive property of Company. Upon Company request, Customer will execute all documents necessary to confirm or perfect the exclusive ownership of Work Product by Company. Customer hereby acknowledges that Company is the sole owner of Website, and that Customer is purchasing a service to use a template-based website that is to be returned to Company after the Agreement is terminated. Customer also agrees that any web copy, graphics, or other materials copied from the Company or the template website by the Customer onto a new website will result in a minimum charge of $1000 per month per website or reactivation of this agreement. Notwithstanding the foregoing, nothing herein shall preclude the Company from asserting any rights to which it is entitled to assert under common law or in equity.
9. Confidentiality
The Parties acknowledge that the existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance this Agreement are regarded as confidential information, known herein as “Confidential Information”. Confidential Information may also mean, but is not limited to, any financial information, trade secrets & information, know-how, service offerings, processes, products, software, systems, methods, techniques, inventions, works, business and/or marketing strategies, customer names & information, ongoing or past projects, quotes, proposals, and invoices. Should Customer become confused about what is and what is not considered “Confidential Information”, then Customer's sole remedy is to ask Company in writing if a certain aspect is considered Confidential Information.
Customer will keep the confidentiality of any and all Confidential Information pertaining to Company. Under no circumstances shall Customer disclose any Confidential Information to any third party, without first obtaining written consent from Company. Such written consent must directly name the third party with whom Customer may share Confidential Information AND such written consent must detail what aspects of the Confidential Information are permitted to be disclosed by Customer. This provision does not expire and will survive this agreement and remain in effect after the termination of this Agreement.
10. Termination
This Agreement may be terminated by either Party (a) for a cause, by specifying a material breach of the non-terminating Party's obligations under this contract giving the other Party thirty (30) days written notice prior to the effective termination date; this is notwithstanding if the breach has been remedied within the thirty (30) day period.
Also, a non-defaulting Party shall have the right to (b) cancel this agreement in part, in whole, or immediately, upon the occurrence of the following events:
1. discontinue use of Services, including the use of Website,
2. pay any outstanding debt owed by Customer to Company, as determined herein,
3. return any Work Product to Company and provide a notarized written statement stating that Company has kept no copies of the Work Product.
The non-defaulting Party shall have the right, at its election, to cancel this Agreement, without prejudice to any other rights or remedies.
11. Effect of Termination
In the event of the termination of this agreement, Customer shall:
discontinue use of Services, including the use of Website,
pay any outstanding debt owed by Customer to Company, as determined herein,
return any Work Product to Company and provide a notarized written statement stating that Company has kept no copies of the Work Product.
Upon request, all Confidential Information shall be returned to the requesting Party and certify in writing that no additional copies have been kept.
Sections 6, 8, 9, 11, and 12 (including all sub-sections) shall all survive any termination of this Agreement.
12. General
12.1. Notices
Any notices required or permitted within this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the notified Party, or (b) five (5) days after having been sent by registered or certified mail, return receipt requested, and postage fully prepaid, and provided that the correspondence is addressed to (i) Company: address specified on Company's website OR (ii) Customer: address specified on application or on Website.
12.2. Force Majeure
Each Party shall be excused from liability for the failure or delay in performance of any obligation under this Agreement by reason of any event beyond such Party’s reasonable control, including but not limited to, Acts of God, fire, flood, explosion, earthquake, or other natural forces, war, civil unrest, any strike or labor disturbance. Such excuse from liability shall be effective only to the extent and duration of the event(s) causing the failure or delay in performance and provided that the Party has not caused such event(s) to occur. Notice of a Party’s failure or delay in performance due to force majeure must be given to the other Party within five (5) calendar days after its occurrence. All delivery dates under this Agreement that have been affected by force majeure shall be tolled for the duration of such force majeure. In no event shall any Party be required to prevent or settle any labor disturbance or dispute. In the event of a force majeure that persists for thirty (30) days or more, then either Party may terminate this Agreement upon written notice to the other Party.
12.3. Arbitration
To the extent permitted by applicable law, any controversy or dispute arising out of or relating to this Agreement, or any alleged breach hereof, shall be settled by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. Both Parties shall select a mutually acceptable arbitrator who is knowledgeable about issues relating to the subject matter within this Agreement. In such an event that the Parties are unable to agree on the selection of an arbitrator, then Company and Customer shall each designate one arbitrator and the two arbitrators selected shall select the third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location in within Massachusetts at a venue to be determined at by Company and at Company's sole discretion. All documents, materials, and/or information in the possession of either Party, that are in any way relevant to the dispute, shall be made available to the other Party and the arbitrator(s) for review and copying no later than thirty (30) days after the notice of arbitration is served. The arbitration panel so selected shall convene a hearing no earlier than forty five (45) days after the notice of arbitration is served and no later than 120 days following the selection of the panel. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitration award shall be final and binding upon the parties, and judgment may be entered in conformity with the decision in a Massachusetts court.
12.4. Assignment
Neither Company nor Customer may assign either this Agreement, whether in whole or in part, or any of its rights, interests, or obligations hereunder without the prior written approval of the other Party, except that Company may assign this agreement to any affiliate that Company deems or to a successor of Company's business, whether by purchase of Company's assets or otherwise. Also, Customer does not have the right to sell or re-sell the Services to any other Party, unless authorized in writing by Company.
12.5. Entire Agreement
This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the parties.
12.6. Amendment
This Agreement may be modified or amended, provided the amendment is made in writing and signed by both Parties.
12.7. Severability
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
12.8. No Waiver
The failure of a Party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such Party’s rights or deprive such Party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
12.9. Separate Counsel
Each Party hereby expressly acknowledges that it has been advised to seek its own separate legal counsel for advice with respect to this Agreement, and that no counsel to any Party hereto has acted or is acting as counsel to any other Party hereto in connection with this Agreement.
12.10. Further Action
The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement.
12.11. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts.
12.12. Attorney’s Fees
If any collection action or proceeding relating to any amount owed by Customer hereunder, Company shall be entitled to recover reasonable attorneys’ fees, costs, expenses, and disbursements in connection with such debt collection action or proceeding. This clause shall also be applicable to appeals.
