THIS CLIENT AGREEMENT (THE “AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH WEBSITE PIPELINE, INC. ("WEBSITE PIPELINE") WILL ASSIST YOU IN THE CREATION, OPERATION AND HOSTING OF YOUR WEBSITE(S). PLEASE READ THE TERMS CAREFULLY. BY SIGNING OR ACCEPTING ANY WEBSITE PIPELINE AGREEMENT, ORDER FORM OR OTHERWISE THAT IS CONTINGENT UPON THE ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, YOU WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE "YOU" OR "YOUR" WILL REFER TO YOUR ENTITY. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, THEN WEBSITE PIPELINE IS UNWILLING TO ENTER INTO THIS AGREEMENT AND TO ASSIST YOU IN THE CREATION, OPERATION AND HOSTING OF YOUR WEBSITE(S).
THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION CLAUSE IN SECTION 22 AND A CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 23 THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. ACCEPTANCE OF AGREEMENT AND AMENDMENT PROCEDURES
This Agreement will become effective upon the execution hereof and the final acceptance by Website Pipeline of any Order form (defined below). Final acceptance by Website Pipeline may be conditional upon You completing specified requirements including, but not limited to, making initial payments to commence work, successfully passing a credit check and/or accepting the scope of Services (defined below) to be provided. Website Pipeline reserves the right to reject any order form, agreement or otherwise for any reason prior to its final acceptance by Website Pipeline.
This Agreement consists of the following: (i) this Client Agreement, (ii) any Order executed by You and accepted by Website Pipeline, and (iii) any Addendum which is attached to this Client Agreement.
Website Pipeline will routinely modify the terms of this Agreement, for example, to reflect changes to the law or changes to our Software or Services. You should review the terms of this Agreement regularly. We will post notice of modifications to this Agreement on this page (https://www.cimcloud.com/ca). By continuing to use or access the Software or Services after the revisions are in effect, you agree to be bound by the revised terms of this Agreement.
2. DESCRIPTION OF SERVICES
Website Pipeline provides website software, consulting services and hosting services (collectively, the “Services”) which include;
a) developing and utilizing software and software documentation for the purpose of designing, deploying, operating and maintaining websites (specifically, the “Software”),
b) providing web consulting services that include the development and design of websites, website features and website functionality, training, support and other services utilized in the development, deployment, operation, maintenance and support of websites (specifically, the “Website Services”) and
c) providing web hosting services that include the hosting of website(s) for You by Website Pipeline (specifically, the “Hosting Services”).
Unless explicitly stated otherwise, any new features, options, resources or offerings that augments or enhances the current Services shall be subject to the terms of this Agreement.
The exact type, features, options, scope, duration, price and/or terms of the Services being provided to You will be specified in an order form, order scope or the like provided by Website Pipeline and accepted by You and Website Pipeline (the “Order”). ALL SERVICES PROVIDED BY WEBSITE PIPELINE REQUIRE A VALID ORDER AND, NOTWITHSTANDING THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE BOUND BY ALL SUCH MUTUALLY AGREED TERMS AND CONDITIONS SPECIFIED IN THE ORDER.
In order to use the Services, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any fees associated with such access at Your facilities. You are responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for Your access to and use of the Services through Your facilities, and for all related fees. For the avoidance of doubt, the foregoing shall not impose upon You any obligation with respect to fees or maintenance of any such equipment or hardware used by Website Pipeline to provide the Services other than the fees associated with access of the Services. You are responsible for obtaining, maintaining and paying all related fees for a valid domain name and, when You are using the website for conducting transactions, You are responsible for obtaining, maintaining and paying all related fees for a Website Pipeline approved gateway and merchant account for handling such transactions including but not limited to any SSL certificates.
3. INTELLECTUAL PROPERTY AND OWNERSHIP
Intellectual Property. All computer programs and other technology utilized by Website Pipeline to provide the Services are owned by Website Pipeline or its licensors, and You do not acquire any ownership interest therein. You shall not (i) tamper with, copy, merge, decompile, or disassemble any such computer programs and other technology (ii) nor shall You disclose, share, or transmit any identification or password code provided by Website Pipeline with any third party without the express written consent of Website Pipeline. Any rights granted to You to use such computer programs and other technology is solely for the purpose described herein and for no other purpose or use.
Website Pipeline shall be deemed the sole author and owner of all Common Gateway Interface, Hyper Text Markup Language code, Java script, Perl script, Visual Basic script, ASP script and any other code or programming acquired, created, developed or learned by Website Pipeline during the course of providing the Services, whether at the instance of Website Pipeline or as customization or other copyrightable authorship requested by You. You hereby assign to Website Pipeline any and all rights, title and ownership interests which You may have in any works of authorship developed by Website Pipeline in conjunction with Website Pipeline during the course of providing the Services and will not attempt to prohibit or enjoin Website Pipeline at any time from utilizing any skills, knowledge, technical expertise, product or feature enhancements or any other information acquired, learned or developed during the course of providing the Services.
You shall be deemed the sole author and owner of all code developed solely by You which interacts with any website developed by Website Pipeline hereunder.
Proprietary Marks. Website Pipeline, and other Website Pipeline product and service names, and all of their related logos, are each proprietary trademarks of Website Pipeline (the "Website Pipeline Marks"). Without Website Pipeline's prior written permission, You agree not to display or use in any manner the Website Pipeline Marks, except as expressly provided for elsewhere within this Agreement. Your product and service names, and all of their related logos, are each proprietary trademarks of You (the "Your Marks").
4. DEFAMATION; COMMUNICATIONS DECENCY ACT NOTICE
Website Pipeline is a provider of “interactive computer services” under the Communications Decency Act, 47 U.S.C. Section 230, and as such, Website Pipeline’s liability for defamation and other claims arising out of any postings by third parties to any Website Pipeline hosted, operated or maintained website is limited as described therein. Website Pipeline is not responsible for content or any other information posted to such websites by third parties. Website Pipeline neither warrants the accuracy of such postings nor, nor assumes any legal obligation or liability in connection with such postings, including any responsibility or liability for investigating or verifying the accuracy of any content or any other information contained in such postings.
5. CONTENT OF WEBSITE
You shall be considered the sole and exclusive author and owner of Your website domain name, Your uniform resource locator, if any, and any graphics, text or data provided to Website Pipeline or uploaded by You for use in the website (the “Content”), and Website Pipeline shall acquire no rights therein.
You acknowledge that Website Pipeline is not an editor or publisher of Your Content and that Website Pipeline has no responsibility for screening, policing, editing, or otherwise monitoring Your Content.
Charges - General. You shall pay to Website Pipeline all fees and other specified payments (the “Charges”) for Website Services and Hosting Services in accordance with this Agreement and Your Order. All payments for Charges shall be made in U.S. Dollars. In all cases, payments for Charges are due on the dates specified in Your Order. Subject to the terms and conditions set forth in this Agreement You shall be liable for all amounts payable to Website Pipeline hereunder and all such payment obligations shall survive the expiration or termination hereof. In addition to any other remedies that may be available to Website Pipeline under this Agreement (including without limitation, in connection with the termination of this Agreement) or applicable law, Charges that are not paid in full by the dates specified on Your Order will be subject to the following:
a) Website Services Charges. Website Pipeline will immediately cease all Website Services and other related work on Your website if any Service Charges are not paid in full by the dates specified on Your Order. If Website Services Charges are paid in full within fifteen (15) days after the payment due date, Website Pipeline will re-commence Website Services and all future Website Services Charges shall be due per the original terms and dates of Your Order. Website Services Charges that are not paid in full within fifteen (15) days after the payment due date shall be subject to an additional late fee equal to the greater of $200.00 or five (5) percent of the past-due Website Services Charge. Website Services Charges that are not paid in full within thirty (30) days after the payment due-date shall be in default (“Payment Default”) and subject to the Payment Default terms stated in this Agreement.
b) Hosting Services Charges. Hosting Services Charges that are not paid in full within fifteen (15) days after the payment due date shall be subject to an additional late fee equal to the greater of $15.00 or ten (10) percent of the past-due Hosting Services Charge. Hosting Services Charges that are not paid in full within thirty (30) days after the payment due-date shall be in default (“Payment Default”) and subject to the Payment Default terms stated in this Agreement. All Hosting Services that are in Payment Default MAY be immediately terminated by Website Pipeline and Your website MAY be removed from Website Pipeline’s servers.
Payment Default. Website Pipeline shall deliver notice to You for any Charges that are in Payment Default. For Charges in Payment Default, You also shall pay to Website Pipeline all expenses incurred by Website Pipeline in exercising any of its rights under this Agreement or applicable law with respect to the collection of a Payment Default, including without limitation, reasonable attorneys' fees and the fees of any collection agency retained by Website Pipeline.
Accelerated Delivery Premiums. Website Pipeline may offer, as an option and for a fee, to expedite, rush or otherwise accelerate the delivery of certain of its Services in Your Order (the “Accelerated Delivery Premiums”). All Accelerated Delivery Premiums will be indicated on Your Order and will provide (i) an estimate as to the cumulative number of days until completion for the accelerated delivery of Services (“Accelerated Delivery Days”) and (ii) an estimate as to the cumulative number of days until completion for the normal delivery of Services (“Normal Delivery Days”). If Website Pipeline completes the Services within the Accelerated Delivery Days, You shall be charged and are responsible for payment in full of the Accelerated Delivery Premiums. If Website Pipeline does not complete the Services within the Accelerated Delivery Days but does complete the Services within the Normal Delivery Days, You shall be charged and are responsible for payment of a prorated amount of the Accelerated Delivery Premiums equal in percent to the number of days in advance of the Normal Delivery Days divided by the number of days difference between the Normal Delivery Days and the Accelerated Delivery Days. If Website Pipeline does not complete the Services within the Normal Delivery Days, You shall not be charged and are not responsible for any Accelerated Delivery Premiums.
Accelerated Delivery Days and Normal Delivery Days only include those days outlined in Your Order that are directly under the control of Website Pipeline and exclude, without exception, any days under Your control including, but not limited to, the creation of Content by You, Your approval of work completed, and other activities based upon Your involvement. You acknowledge and agree that neither Accelerated Delivery Days nor Normal Delivery Days constitute a performance guarantee, or any other type of warranty or guarantee, and the failure of Website Pipeline to complete Services within either Accelerated Delivery Days or Normal Delivery days does not constitute a breach of the Agreement and that in such an event You will continue to be bound in full by the terms and conditions of the Agreement.
Pass Through Items and Other Expenses. Website Pipeline shall have the right at any time during any term of this Agreement to pass through and invoice to You any new or increased fees, assessments, taxes or other charges imposed on or required to be collected by Website Pipeline by any governmental agency. You also will be responsible for paying any sales, license and use taxes, fees, or assessments levied by any local, state or federal government or governmental agency with respect to the provision of Services under this Agreement. You will pay and be solely responsible for all taxes, fees and charges levied directly upon You for taxes, fees and charges related to the Services.
Changes in Charges. Except as provided elsewhere in the Agreement, the prices and fees charged by Website Pipeline for its Services are only applicable for the Services or dates of Services specified in Your Order. Website Pipeline will have the right, upon notice required by applicable laws, to change the amount or basis for determining any fee or charge or institute any new fees or charges for any new, incremental or additional Services or Orders. Upon the Automatic Renewal of Hosting Services, as provided in Section 9, Website Pipeline will have the right, upon thirty (30) days notice and subject to applicable laws, to change the amount or basis for determining any fee or charge or institute any new fees or charges for Hosting Services.
Software. Website Pipeline grants You a personal, non-transferable, non-exclusive and revocable license to use Website Pipeline’s Software for the sole purpose of operating and maintaining Your website as provided by Website Pipeline’s Service and Hosting Service, provided that You do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software or any portion of the Software. Except as authorized by Website Pipeline, You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Software. You agree not to access the Software by any means other than through the interface that is provided or authorized by Website Pipeline for use in accessing the Software. You may not use web pages or parts of web pages generated by means of the Software, other than Content that originates from and is proprietary to You, on any server other than the servers controlled by Website Pipeline without Website Pipeline's express written consent. Website Pipeline reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice. Although Website Pipeline attempts to maintain compatibility of the functionality of its Software between versions, Website Pipeline does not guarantee or otherwise warrant such compatibility. If Website Pipeline chooses to install a new software version on your website, it will be at Website Pipeline’s expense, and Website Pipeline will either (i) insure that the software version does not materially change your ability to conduct business, or (ii) provide you a minimum of one hundred twenty (120) days notice of the material change. In the event of a material change, Your sole remedy is to cancel Your Services.
Third Party Software. With respect to any elective, additional software that may be made available by Website Pipeline in connection with the Software, if You elect to download or access such additional software, You acknowledge that You may have to agree to additional terms and conditions before You may use such software.
8. WEBSITE SERVICES
Website Services. Website Pipeline shall provide to You the Website Services defined in Your Order in accordance with the terms and conditions hereof and the applicable Order. In the event of any inconsistency or conflict between this Agreement and any Order, the Agreement shall control.
Website Pipeline may offer additional Website Services at the then current prices from time to time during the term of this Agreement. Upon request by You, the parties shall negotiate in good faith the terms and conditions of such work, including without limitation, the specifications, timeframe for delivery, backwards and future compatibility guarantees, and costs of such additional work.
Website Services Contact. You shall designate one individual as Your principal contact for communicating with Website Pipeline regarding the Website Services. You agree that any decisions made by the Contact with regard to the Website Services provided hereunder are binding upon You. You may change Your principal contact by written notice to Website Pipeline.
Cooperation. You acknowledge that Website Services may be dependent on You providing certain reasonable and necessary data, information, or assistance (the "Cooperation"), and (ii) that such Cooperation may be essential to the performance of Website Services by Website Pipeline. The parties agree that any delay or failure by Website Pipeline to provide Website Services hereunder which is caused by Your failure to provide timely Cooperation reasonably requested by Website Pipeline shall not be deemed to be a breach of Website Pipeline's performance obligations under this Agreement to the extent only that such failure to provide Cooperation directly and materially causes such delay or failure to provide Website Services hereunder and such delay or failure shall no longer be excused after the Cooperation is provided. Furthermore, the parties agree that if You fail to provide timely Cooperation within one-hundred and eighty (180) days of written request for such Cooperation, Website Pipeline shall have the right to provide You written notice of such failure and, within thirty (30) days of notice of such failure, You shall either provide all requested Cooperation or, in the event You do not provide all requested Cooperation, You shall be deemed to have elected Termination by Convenience, as provided in Section 17, and subject to Termination by Convenience terms stated in this Agreement, provided that no fees shall be owed to Website Pipeline for the right of Termination for Convenience as provided in this Section 17.
Progress Reports. Website Pipeline shall provide to You reports as You may reasonably request in writing from time to time regarding the progress of the work required by the Order, any anticipated problems (resolved or unresolved), and any indication of delay in estimates.
Changes. Any change requested by You in the scope of Website Services specified in an Order must be agreed to by Website Pipeline in writing. Such changes may require modification of fees charged and/or delivery estimates as mutually agreed by the parties.
Order Completion. Within five (5) days following receipt of notice from Website Pipeline of completion of Your Order, You shall review and test the website and advise Website Pipeline of Your acceptance of the website or provide Website Pipeline in a written form one (1) all-encompassing and specific list of any modifications required to the website to meet the terms of Your Order. You shall be deemed to have accepted the website and it shall be deemed to be complete (the “Order Completion”) (i) upon receipt by Website Pipeline of written notification by You of acceptance, or (ii) the failure of You to provide Website Pipeline in a written form one (1) all-encompassing and specific list of any modifications required to the website to meet the terms of Your Order within five (5) days receipt of notice of completion. Upon acceptance or the successful completion of the modifications requested and agreed to by Website Pipeline, the website shall be deemed to be complete.
Website Services Delivery Estimate. Website Pipeline may provide You with estimates as part of Your Order reflecting the number of cumulative hours of work Website Pipeline expects it will require to deliver its Website Services (the “Website Services Delivery Estimate”). The Website Services Delivery Estimate is EXCLUSIVE of days requiring effort, work, response, or input by You OR ANY OTHER THIRD PARTIES.
You acknowledge and agree that the Website Services Delivery Estimate is SOLELY INTENDED AS AN ESTIMATE of the hours of work expected to be required by Website Pipeline to complete the Order and the actual work required by Website Pipeline may vary from the Website Services Delivery Estimate for reasons including, but not limited to, (i) changes in the scope of the work, expected deliverables or expected functionality by You, (ii) changes in assumptions made by You or by Website Pipeline that were used to prepare the Website Services Delivery Estimate, (iii) changes in the expected delivery timeline, (iv) Your Cooperation in the completion of the work or (iv) the introduction of any new information, requirements or deliverables that impact the effort of actual work required by Website Pipeline to complete the Order.
FURTHERMORE, YOU ACKNOWLEDGE AND AGREE THAT (I) THE WEBSITE SERVICES DELIVERY ESTIMATE DOES NOT CONSTITUTE A BINDING AGREEMENT, FIXED COMMITMENT OR OTHER GUARANTEE BY WEBSITE PIPELINE THAT THE ACTUAL HOURS OF WORK REQUIRED WILL BE EQUAL TO THE WEBSITE SERVICES DELIVERY ESTIMATE, (II) THAT WEBSITE PIPELINE WILL CHARGE YOU FOR THE ACTUAL HOURS OF WORK PERFORMED AS PART OF YOUR ORDER, (III) THAT YOU ARE RESPONSIBLE FOR PAYING FOR ALL WORK PERFORMED BY WEBSITE PIPELINE AND (IV) THAT IF THE ACTUAL HOURS OF WORK REQUIRED EXCEEDS THE WEBSITE DELIVERY SERVICES ESTIMATE, IT DOES NOT CONSTITUTE A BREACH OF THE AGREEMENT.
Third Party Web Browsing Software Interoperability. Subject to the conditions herein, Website Pipeline will develop the publicly accessible pages of Your website to be interoperable, as determined by Website Pipeline at the time of Order Completion, with the then current version of any third party web browsing software that (i) has been released in the 5 years prior to Order Completion and (ii), as determined by Website Pipeline, has greater than a one percent market penetration in the United States. Interoperability will be determined solely by Website Pipeline using its equipment, hardware and software and shall not apply to tools or features in the Software used for the management, operation or maintenance of the website. You acknowledge and agree that (i) third party web browsing software changes frequently, (ii) that such changes may affect the future interoperability of Your website with such software, (iii) and that, as an option and for a fee, Website Pipeline may provide additional Services to provide for future interoperability of Your website with such software.
Search Engine Rankings. You acknowledge and agree that Website Pipeline does not offer, guarantee or otherwise provide for Your website’s inclusion in or ranking with any third-party search engines. Furthermore, You acknowledge and agree that any inclusion in or ranking with any third-party search engines previously obtained or achieved by any website not designed and hosted by Website Pipeline may materially change if such websites are subsequently hosted by Website Pipeline.
Co-Branding. All websites developed by Website Pipeline’s Service shall display, at Website Pipeline’s option, a small “powered by Website Pipeline™” line, logo or other graphic or phrase with a similar meaning. Website Pipeline may elect, at its sole discretion, to offer You the option to remove such display for an additional fee.
You hereby grant to Website Pipeline the right to publicly perform and display any website developed by Website Pipeline for the purposes of marketing and advertising Website Pipeline’s products and services.
9. HOSTING SERVICES
Hosting Service. Subject to the terms and conditions of this Agreement, Website Pipeline shall provide the Hosting Service for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. in accordance with the service levels specified below (“Service Availability Guarantee”). You are responsible for all expense associated with maintaining Your internal network, software, browsers and Internet connections sufficient to access the Hosting Service.
Website Pipeline’s Hosting Service is provided exclusively for websites developed with Website Pipeline’s Software and Service and shall be stored, provided and accessed on Website Pipeline’s equipment, hardware and/or Internet servers. Subject to the Website Pipeline’s confidentiality obligations contained in this Agreement, You hereby grant to Website Pipeline all rights which may be necessary solely in order to provide the Hosting Service including, but not limited to, accessing and monitoring use of the website without notification, receiving and/or storing commands or data transmitted to and/or from the website by Internet users, transmitting web page data and storing, displaying and/or transmitting any other related or necessary data or information.
Service Availability Guarantee. As set forth in the chart below, Website Pipeline offers a service uptime guarantee for the Hosting Services of 99% for SL-500 to SL-1000 (previously Service Level A or Service Level 1.0), SL-1500 to SL-2000 (previously Service Level B or Service Level 1.5), 99.5% for SL-3000 to SL-5000 (previously Service Level C or Service Level 2.0, 99.7% for SL-6000 to SL-11000 (previously Service Level D to Service Level 2.5) and 99.9% for SL-12000 (previously Service Level E or Service Level 3.0) ("Service Uptime") of available time. If Website Pipeline fails to maintain this level of service availability in a calendar month, You may contact Website Pipeline in writing and request a credit to your monthly hosting fee from Website Pipeline for that month. The amount of the credit will be determined using the Service Availability Credit Schedule. The credit does not apply to service interruptions caused by (i) periodic scheduled maintenance or repairs that Website Pipeline may undertake from time to time; (ii) standard scheduled maintenance occurring on Wednesdays and Sundays between 1:00 AM EST and 4:00 AM EST; (iii) errors caused by You from custom scripting or coding; (iv) outages that do not affect the appearance or operation of the front end web site but merely affect access to the web site control panel or email delivery; (v) causes that are beyond the control of Website Pipeline (including without limitation Force Majeure events as defined in Section 19 hereof). The Total Service Uptime shall be determined by using a third-party website monitoring service that is contracted by You and approved by Website Pipeline. The written request for a credit must be received by Website Pipeline by the 5th day of the following month and must include proof from the third-party monitoring service that the guaranteed Service Uptime was not met.
|SL-500 to SL-1000 - Service Availability Credit Schedule|
|Service Uptime for Any Month:||Credit to Hosting Service Charges for That Specific Month:|
|98% to 98.9%||10 %|
|97% to 98.9%||25 %|
|95% to 97%||50 %|
|SL-1500 to SL-2000 - Service Availability Credit Schedule|
|Service Uptime for Any Month:||Credit to Hosting Service Charges for That Specific Month:|
|98.5% to 99.2%||10 %|
|97.75% to 98.95%||25 %|
|96.5% to 97.75%||50 %|
|SL-3000 to SL-5000 - Service Availability Credit Schedule|
|Service Uptime for Any Month:||Credit to Hosting Service Charges for That Specific Month:|
|99% to 99.49%||10 %|
|98.5% to 98.99%||25 %|
|98% to 98.49%||50 %|
|SL-6000 to SL-11000 - Service Availability Credit Schedule|
|Service Uptime for Any Month:||Credit to Hosting Service Charges for That Specific Month:|
|99.4% to 99.69%||10 %|
|99.0% to 99.39%||25 %|
|98.5% to 98.99%||50 %|
|SL-12000 - Service Availability Credit Schedule|
|Service Uptime for Any Month:||Credit to Hosting Service Charges for That Specific Month:|
|99.8% to 99.89%||10 %|
|99.5% to 99.79%||25 %|
|99% to 99.49%||50 %|
Service Levels and Service Level Upgrades. Website Pipeline offers various Service Levels that are measured based upon the usage of your website. The Service Levels, the usage metrics upon which they are measured and the included usage allocations can be found on the Service Level page (https://www.cimcloud.com/sla). If for any monthly period the usage of your website exceeds your current Service Level, Website Pipeline may require a Service Level upgrade to a Service Level that provides usage allocations to meet your website’s actual usage. You are responsible for any and all new Charges related to the Service Level upgrade including Website Service Charges and any increase in the Monthly Hosting Fee and Website Service Charges.
Independent Archival and Backup Copies of Your Data. You are responsible for undertaking measures to maintain independent archival and backup copies of all of Your data and information used in Your website and for any and all fees associated with such independent archival and backup copies.
Backup Services by Website Pipeline. Website Pipeline will perform routine backup services for your convenience and at no additional charge. These backup services are not guaranteed. You agree that Website Pipeline’s failure to perform or properly recover lost data from backups does not entitle you to an offset or credit of any kind.
Backup Recovery Services. You may request Backup Recovery Services from Website Pipeline at any time. If the data loss that prompted the backup recovery request was caused by You, you will be obligated to pay Website Pipeline then current Services hourly rate for the recovery efforts. If the data loss was caused by an action taken by Website Pipeline, Website Pipeline will provide the backup recovery services at no cost to You.
Backup Services Guarantee. Website Pipeline provides the following Backup Services Guarantee for customers who subscribe to SL-6000 to SL-12000. Weekly full backups and daily incremental backups will be performed for Your database and website application. Data protection practices shall include off site rotation of the data to a secure location at least three miles from the hosting facility at least twice per month. Data will be handled by authorized personnel of Website Pipeline. The Backup Services Guarantee guarantees that, in the event of data loss, you will not lose more than 1 hour worth of data in the database, and not more than 12 hours worth of physical file data, provided that you report that data loss to Website Pipeline within two (2) weeks of the date of loss and request that Website Pipeline provide Backup Recovery Services. If Website Pipeline’s Backup Recovery Services do not meet the guarantee, your sole and exclusive remedy will be a credit for a total of one month of Hosting Services.
Protection of Information. Subject to Section 14, You are solely responsible for preventing password-protected pages and information within the website from being accessed by unauthorized persons and from being automatically indexed and linked to search engine robots, spiders, or other similar means, and for any damage caused by such unauthorized access.
Identifications and Passwords. Website Pipeline shall provide You with a unique identification and password for accessing Software that will provide You the ability to view and modify Your generated identifications and passwords. Subject to Section 14, You are responsible for the security and proper use of such identifications and passwords, and You agree to take all reasonable steps to ensure that such identifications and passwords are kept confidential, secure, used properly, and not disclosed to unauthorized persons. You shall immediately notify Website Pipeline in the event that You have any reason to believe that such identifications and passwords have become known to unauthorized persons.
10. TECHNICAL SUPPORT
Payment in full of all Services fees entitles You to limited technical support (the “Technical Support”) in the form of electronic means made available by Website Pipeline. Website Pipeline may offer, as an option and for a fee and subject to additional terms and conditions, additional support options that may include phone support, business critical application support and other types and levels of support.
11. SYNDICATED WEBSITES
Syndicated Websites (Snap Websites). Website Pipeline may provide You, as an option and for a fee, the ability to syndicate certain content and/or functionality of Your website in order to make it available to third parties (the “Snap Websites”). All such Snap Websites are subject to the terms of this agreement. If You elect to offer Your Snap Websites directly to third parties, whether for payment or otherwise, You confirm and warrant that each third party to whom You offer the Snap Website shall acknowledge and agree in writing (i) to be subject to the terms of this Agreement, and (ii) to permit Website Pipeline to enforce the terms of this Agreement as a creditor third party beneficiary. You accept full liability for such Snap Websites.
12. SYNDICATED CONTENT
Syndicated Content. You are solely responsible for obtaining and properly licensing and paying any and all associated fees for any content, data, information or other assets provided by a third party to You and then provided to Website Pipeline (the “Syndicated Content”) and displayed, offered or otherwise used in conjunction with Your website. You acknowledge and agree that Website Pipeline shall not be responsible for obtaining, providing or otherwise offering any such Syndicated Content and that the termination of any such Syndicated Content by a third party does not relieve You of any of the obligations of the Agreement.
13. ELECTRONIC COMMERCE
Online Store. Website Pipeline may provide You, as an option and for a fee set forth in this Agreement, certain features, tools, and functionality as a part of its Services (collectively, “Tools”) which enable You (i) to operate an online store to engage in the sale of goods and or services or other types of commerce which may, in full or in part, be conducted electronically through Your website, and/or (ii) to collect information including personally identifiable information from Your website’s visitors (collectively, the operation of an “Online Store”). If You elect to operate an Online Store, You confirm and warrant that Website Pipeline is not Your selling agent, distributor, marketer or other affiliate, and that You are solely responsible for the accuracy of the actual data around each and all of the following that is inputted into such Tools: the operation and maintenance of Your Online Store and products and all contents and materials appearing within Your Online Store or related to Your products (including, without limitation, the accuracy and appropriateness of advertising claims, content and materials appearing within Your online store or related to Your products); the calculation and application of product pricing, coupons, order totals, shipping and sales, use, or other tax; and the purchase transactions with users through the Online Store, including, without limitation, order receipt, product delivery, payment terms and payment collection.
Credit Card Transactions. You acknowledge and agree that You are solely responsible for processing credit card transactions through Your Online Store and between You and any Website Pipeline approved credit card processing company as You may contract with. You shall be responsible for completing any applications or paying any fees, charges or otherwise owed in conjunction with the processing of such credit card transactions and shall assume full liability for meeting any obligations, financial or otherwise, that arise out of engaging in such credit card transactions. You further acknowledge and agree that Website Pipeline shall not be responsible in any way for the collection and disbursement of funds due to You as a result of such credit card transactions.
Financial Calculations. You acknowledge and agree that You are solely responsible for the accuracy of any financial calculations that may be performed in conjunction with Your website including, but not limited to, the calculation of pricing, compensation, commissions, payments due, payments owed or any other financial calculations and any and all obligations, financial or otherwise, that may arise out of such calculations. Furthermore, You shall verify the accuracy of any such financial calculations prior to making or accepting any payments based on such financial calculations and, in the event You determine an inaccuracy in such a calculation, You are responsible for providing written notification of such inaccuracy to Website Pipeline and subsequently verifying that any and all corrections made by Website Pipeline are correct and accurate.
14. CUSTOMER DATA SECURITY
By operating the Online Store, You acknowledge and agree to undertake commercially reasonable measures consistent with prevailing industry standards to safeguard the security of all visitor or customer information and data, financial or otherwise, including without limitation any and all personally identifiable information which You may access, collect, be in receipt of, or archive through the operation of Your Online Store (“Customer Data”) and to treat all such information as confidential to the extent required by law. Website Pipeline will treat all such information as confidential.
Website Pipeline’s sole and exclusive obligation and responsibility will be to implement reasonable security procedures consistent with industry standards (“Data Security Standard”) to protect Customer Data from unauthorized access. Notwithstanding anything to the contrary contained in this Agreement, the parties agree that Website Pipeline shall not, under any circumstances, be held responsible or liable for situations (i) where Customer Data is accessed by third parties through illegal or illicit means, or (ii) where Customer Data is accessed through the exploitation of security gaps, weaknesses, or flaws unknown to Website Pipeline at the time. WEBSITE PIPELINE’S LIABILITY FOR BREACH OF THE DATA SECURITY STANDARD DEFINED ABOVE IS LIMITED IN ACCORDANCE WITH SECTION 19 (LIMITATION OF LIABILITY) HEREOF.
In the event of any unauthorized access, Website Pipeline’s sole responsibilities shall be to (i) promptly report to You any unauthorized access to Customer Data upon discovery by Website Pipeline, and (ii) use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such Customer Data is required, You shall be solely responsible for any and all such notifications at Your expense including notifications to Your clients, merchant partners or other impacted parties.
15. CYBER INSURANCE
You acknowledge and agree that Website Pipeline may elect, at its sole discretion, to purchase cyber-insurance, or any other insurance deemed necessary by Website Pipeline in the operation of its business, and that any such insurance will be for the exclusive benefit of Website Pipeline and shall not be for the benefit of You, Your clients, Your merchants, Your vendors or other third parties You rely upon as part of the operation of Your business. Furthermore, you acknowledge and agree that You are solely responsible for determining if, and the amount of, such insurance is required for Your business and are solely responsible for procuring and paying for such insurance.
Anti-Spam Policy. You acknowledge and agree to a zero-tolerance anti-spam policy. You acknowledge and agree that You will not upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation via email. This includes any email originating from Website Pipeline’s servers, or email originating from third party servers that contains any variation of a domain name or hyperlink to a domain name that is hosted on Website Pipeline’s servers. Violation of this policy is grounds for immediate termination of this Agreement and the permanent cancellation of any websites, domain names, email accounts, and other Website Pipeline Services without refunds or financial concessions of any kind. In addition, You shall be liable for any reasonable expenses, including the time of Website Pipeline employees, associated with removing Website Pipeline’s servers or Internet Protocol address from any “black lists” or other lists associated with the use of such solicitations.
Downloading of Data or Files. You acknowledge and agree that Website Pipeline cannot and does not guarantee or warrant that files available for downloading through Website Pipeline’s servers and facilities will be free of infection, viruses, worms, Trojan horses or other means or code that manifests contaminating or destructive properties (“Malware”). Website Pipeline shall use commercially reasonable efforts to use anti-virus software with the latest available virus definition tables from a nationally recognized anti-virus software company to screen its downloads for Malware.
17. TERM AND TERMINATION
Term Of Agreement. The term of this Agreement shall commence immediately upon the acceptance by Website Pipeline of Your Order and shall continue for the duration of the terms specified in Your Order. After the expiration or termination of this Agreement, any existing Order then still in effect shall continue unaffected and in full force and effect unless otherwise terminated as provided herein or in such Order.
Automatic Renewal of Services. After the expiration of the original term as specified on Your Order, Hosting Services shall renew from month-to-month at then prevailing prices for such Hosting Services unless sooner terminated by either party pursuant to the terms and conditions hereof.
Termination. You agree that Website Pipeline may terminate any Website Pipeline Services without prior notice, upon the occurrence of any one of the following: (i) requests by law enforcement or other government agencies, and (ii) a request by You pursuant to the terms herein. Termination of Services includes (i) immediate termination of all Services and Services-related work, (ii) removal of Your website from Website Pipeline’s servers, (iii) deletion of Your identification and password and all related information, files and content associated with or inside Your website, and (iv) barring further use of Website Pipeline’s Services. Website Pipeline will archive all data stored in databases maintained by Website Pipeline for a period of sixty (60) days after termination. If You request a copy of such data and pay to Website Pipeline its then current fee for processing Your data during the sixty (60) day period, Website Pipeline will record such data on media and in a format mutually agreed upon and transmit such data to You. If no request is made for a copy of such data or if a mutual agreement is not reached within the sixty (60) day period, Website Pipeline may destroy all such data without liability of obligation.
Automatic Termination. Unless Website Pipeline promptly after discovery of the relevant facts notifies You to the contrary in writing, this Agreement and Orders will terminate immediately with notice to You upon the institution of insolvency, bankruptcy, or similar proceedings by or against Website Pipeline, any assignment or attempted assignment by Website Pipeline for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for Website Pipeline.
Termination For Cause, All Services. If either party fails to comply with any of the material terms and conditions of this Agreement or the Order, the other party may terminate this Agreement and/or any or all Orders upon thirty (30) days written notice to the defaulting party specifying any such breach, unless within the period of such notice, all breaches specified therein shall have been remedied.
Termination For Convenience, Website Services. Notwithstanding anything contained herein to the contrary, You may terminate this Agreement and/or any or all Website Services’ Orders for convenience upon sixty (60) days' written notice to Website Pipeline. If You terminate Website Services for Convenience, You are responsible for paying (i) one-hundred (100) percent of all outstanding software and standard implementation fees, (ii) one-hundred (100) percent of all outstanding invoices related to professional services already delivered, (iii) an early termination fee in an amount equal to one-hundred (100) percent of the total remaining Hosting Services payments outstanding and (iv) any other fees or amounts You may owe at termination as specified in any and all such Website Pipeline Orders.
Termination For Convenience, Hosting Services. Notwithstanding anything contained herein to the contrary, either party may terminate this Agreement and/or any Hosting Services Order for convenience upon written notice to the other party. If Website Pipeline terminates Hosting Services for convenience, Website Pipeline will provide one hundred twenty (120) days advance notice of termination. If You terminate Hosting Services that are provided on a month-by-month basis and are not subject to an Order specifying a term of longer duration, You acknowledge and agree (i) that any amounts You may have pre-paid for Hosting Services are not eligible for refunds, and (ii) that You are responsible for any amounts due for Hosting Services at the time of cancellation and any other fees or amounts You may owe. If You terminate Hosting Services that are subject to an Order specifying a term of longer than a one month duration, You acknowledge and agree (i) that any amounts You may have pre-paid for Hosting Services are not eligible for refunds, and (ii) that You are responsible for paying an early termination fee in an amount equal to fifty (50) percent of the total remaining payments outstanding at termination as specified in any and all such Hosting Services Orders and any other fees or amounts You may owe.
Rights and Obligations on Termination. Upon termination of this Agreement, Website Pipeline and You shall have no obligations to each other except as provided in this Agreement. Upon termination of this Agreement, You shall (i) pay all amounts due and owing to Website Pipeline without deduction of any amount and (ii) immediately cease using Website Pipeline’s Services, including any Website Pipeline Software. Any amounts due and owing to Website Pipeline not paid in full upon termination (other than termination for cause) shall be Payments in Default and subject to the terms of this Agreement.
18. MUTUAL EXCHANGE OF CONFIDENTIAL INFORMATION
The parties anticipate that each may disclose confidential information to the other. Accordingly, the parties desire to establish in this Section terms governing the use and protection of certain information one party ("Owner") may disclose to the other party ("Recipient"). For purposes hereof, "Confidential Information" means the terms and conditions hereof, and other information of an Owner (i) which relates to the purpose and subject matter of the Services, including the business models and plans of Owner and Owner's plans for the design of a website, including without limitation, Non-Public Personal Information (defined below), or (ii) which, although not related to the Services, is nevertheless disclosed hereunder, and which, in any case, is disclosed by an Owner or an affiliate to Recipient in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure. “Non-Public Personal Information” means any of the following information accessible through or archived in connection with any website operated by or for Owner: any identifier that permits physical or online contacting of a specific individual person, including without limitation, any one or more of (i) first and last name, (ii) home or physical address, (iii) email address, (iv) telephone number, or (v) social security number. Recipient may use Confidential Information of Owner only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case, using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees and contractors who are bound by signed, written agreements sufficient to enable Recipient to enforce all the provisions of this Section. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner; or (iv) is independently developed by Recipient without reference to Confidential Information.
19. LIMITATION OF LIABILITY
The parties acknowledge that the limitations set forth herein are integral to the amount of fees levied in connection with this Agreement, and that, were Website Pipeline to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
Disclaimer of Liability for Content. Website Pipeline does not monitor or exercise control over the content of the information transmitted through its facilities, and therefore, Website Pipeline does not assume any liability arising out of any such information.
Disclaimer of Liability for Force Majeure. Notwithstanding anything to the contrary contained herein, neither party shall be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to You resulting, directly or indirectly, from any (i) weather conditions, natural disasters, epidemics or other acts of God, (ii) action of any governmental or military authority, (iii) failure caused by any supplier of electricity, or telecommunication or other Internet provider, or (iv) other force or occurrence beyond its control (collectively, “Force Majeure”); provided that if any such Force Majeure event lasts for longer than thirty (30) days, the other party shall have the right to terminate the agreement for convenience.
Disclaimer of Liability for Incidental and Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF, OR ACCESS TO, CUSTOMER DATA OR BREACH OF THE DATA SECURITY STANDARD (AS SUCH TERM IS DEFINED IN SECTION 14)), REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 20 BELOW.
Limitation of Liability for Direct Damages. THE LIABILITY OF EITHER PARTY AND ANY OF ITS AFFILIATES TO THE OTHER PARTY FOR DIRECT DAMAGES OR ANY OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, BREACH OF ANY EXPRESS REMEDY PROVIDED HEREIN IN SECTION 14 FOR BREACH OF THE DATA SECURITY STANDARD (AS SUCH TERM IS DEFINED IN SECTION 14), SECTION 21 FOR BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE OR OTHER THEORY) OR OTHERWISE, SHALL BE LIMITED TO A TOTAL AGGREGATE AMOUNT OF UP TO THE LESSER OF I) $5,000, OR II) 12 MONTHS IN HOSTING SERVICES FEES APPLICABLE AT THE TIME OF THE EVENT. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 20 BELOW.
The limitations of liability provided herein shall inure to the benefit of Website Pipeline and You respectively, and all each party’s Affiliates and to all of the respective officers, directors, attorneys, employees and agents of Website Pipeline and such other entities ("Limited Liability Parties"). The limitations of liability afforded each party in this Agreement shall apply whether a Limited Liability Party is alleged to be liable jointly with one or more parties or otherwise.
The immediately preceding paragraphs are intended to be independent of each other and the failure of the essential purpose of one shall not affect the other.
20. MUTUAL INDEMNITY REGARDING INTELLECTUAL PROPERTY RIGHTS AND AUTHORITY
Each party ("Provider" also “Representing Party”) will at its expense defend and indemnify the other party ("Recipient") against a claim that (i) any information, design, specification, instruction, software, data or material furnished by the Provider ("Material") and used by the Recipient hereunder infringes or violates an intellectual property right of another, or (ii)(a) the execution, delivery and performance of this Agreement has been authorized by all necessary corporate action, does not violate the terms of any law, regulation, or court order to which it is subject, does not violate the terms of any material agreement to which that party is a party, will not breach any contractual obligation to any third party, and are not subject to the consent or approval of any third party; (b) this Agreement is the valid and binding obligation of the Representing Party, enforceable against the Representing Party in accordance with its terms; (c) the Representing Party is not subject to any pending or threatened litigation or governmental action which could interfere with the Representing Party’s performance of its obligations hereunder; and (d) the Representing Party has secured or shall secure all permits, licenses, regulatory approvals and registrations required to deliver the products and provide the services hereunder provided that: (i) the Recipient notifies the Provider in writing within thirty (30) days of the claim; (ii) the Provider has sole control of the defense and all related settlement negotiations, but will not enter into any settlement that adversely affects the Recipient’s rights of use without the prior consent of the indemnified party, not to be unreasonably withheld; and (iii) the Recipient provides the Provider with the assistance, information, and authority reasonably necessary to perform the above; reasonable out-of-pocket expenses incurred by the Recipient in providing such assistance will be reimbursed by the Provider. The Provider shall have no liability for any claim of infringement to the extent resulting from: (i) the Recipient's use of a superseded or altered release of some or all of the Material if infringement would have been avoided by the use of a subsequent unaltered release of the Material which the Provider provides to the Recipient with sufficient time to implement the subsequent release and specific instructions on such need; or (ii) any information, design, specification, instruction, software, data, or material not furnished by or approved by the Provider, each (i) and (ii), solely to the extent such infringement claim would not have arisen but for such use. In the event that some or all of the Material is held or is believed by the Provider to infringe, the Provider shall have the option, at its expense: (i) to modify the Material to be non-infringing; or (ii) to obtain for the Recipient a license to continue using the Material. If it is not commercially feasible to perform either of the above options, then the Provider may require from the Recipient return of the infringing Material and all rights thereto. In such event, You shall have the right to terminate this Agreement for cause. THIS SECTION 20 STATES THE PARTIES' ENTIRE LIABILITY AND EXCLUSIVE REMEDY FOR THIRD PARTY CLAIMS ALLEGING INFRINGEMENT OR OTHERWISE A BREACH OF THIS SECTION 20.
21. WARRANTIES AND DISCLAIMERS
Limited Software Warranty. Website Pipeline warrants to You that for so long as Website Pipeline is providing Hosting Services that the Software will be free of material defects in workmanship, design, and material and shall comply with the functionality descriptions provided by Website Pipeline. Your sole and exclusive remedy and Website Pipeline’s sole and exclusive obligation and liability for breach of the forgoing warranty shall be, after receipt of written notice from You specifying any non-conformity with the forgoing warranty, to promptly repair or replace the non-conforming Software at Website Pipeline’s expense for purposes of correcting any non-conformity.
Limited Website Services Warranty. Website Pipeline warrants to You that all Services provided under this Agreement will be performed in a professional and workmanlike manner and will comply with all specifications and other requirements agreed to by the Parties in writing. Your sole and exclusive remedy and Website Pipeline’s sole and exclusive obligation and liability for breach of the forgoing warranty shall be, after receipt of written notice from You specifying any non-conformity with the forgoing warranty, to promptly re-perform the non-conforming Services at Website Pipeline’s expense for purposes of correcting any non-conformity.
Disclaimer of Warranty For Hosting Services. WEBSITE PIPELINE PROVIDES THE SERVICES AVAILABILITY GUARANTEE IN SECTION 9 HEREOF IN LIEU OF ANY WARRANTY REGARDING HOSTING SERVICES. ACCORDINGLY, ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
General Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 21, WEBSITE PIPELINE DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WEBSITE PIPELINE. FOR ANY DISPUTE WITH WEBSITE PIPELINE, YOU AGREE TO FIRST CONTACT US IN ACCORDANCE WITH SECTION 24 BELOW (NOTICES) AND ATTEMPT TO RESOLVE THE DISPUTE WITH US INFORMALLY. IN THE UNLIKELY EVENT THAT WEBSITE PIPELINE HAS NOT BEEN ABLE TO RESOLVE A DISPUTE IT HAS WITH YOU AFTER SIXTY (60) DAYS, WE EACH AGREE TO RESOLVE ANY CLAIM, DISPUTE, OR CONTROVERSY (EXCLUDING ANY CLAIMS FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF AS PROVIDED BELOW) ARISING OUT OF OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, OR THE BREACH OR ALLEGED BREACH OF THIS AGREEMENT (COLLECTIVELY, “CLAIMS”), BY BINDING ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) THEN IN EFFECT. THERE SHALL BE ONE ARBITRATOR, AND SUCH ARBITRATOR SHALL BE CHOSEN BY MUTUAL AGREEMENT OF THE PARTIES IN ACCORDANCE WITH AAA RULES. THE ARBITRATION SHALL TAKE PLACE IN GREENVILLE, SOUTH CAROLINA. THE ARBITRATOR SHALL APPLY THE LAWS OF THE STATE OF SOUTH CAROLINA TO ALL ISSUES IN DISPUTE. EACH PARTY WILL BE RESPONSIBLE FOR PAYING ANY AAA FILING, ADMINISTRATIVE AND ARBITRATOR FEES IN ACCORDANCE WITH AAA RULES, AND THE AWARD RENDERED BY THE ARBITRATOR SHALL INCLUDE COSTS OF ARBITRATION, REASONABLE ATTORNEYS’ FEES AND REASONABLE COSTS FOR EXPERT AND OTHER WITNESSES. ANY JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR SHALL BE FINAL AND MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. NOTHING IN THIS SECTION SHALL BE DEEMED AS PREVENTING WEBSITE PIPELINE FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS.
23. CLASS ACTION/JURY TRIAL WAIVER
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WEBSITE PIPELINE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Any notice, consent, approval, or communication required or permitted to be given hereunder shall be in writing, and may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested. Your notices to Website Pipeline shall be sent to:
Website Pipeline, Inc.
777 Lowndes Hill Rd, Bldg 3
Greenville, SC 29607
ATTN: Legal Notice
or via fax to (864) 272-3299.
Website Pipeline may provide notice to the address, email or facsimile provided by You as part of this Agreement. Such notice will be deemed to be given when received.
25. CONTINUING OBLIGATIONS
The following obligations shall survive the expiration or termination hereof: (i) any and all limitations of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of protecting the proprietary rights of either party or any remedy for breach thereof, (iii) the payment of taxes, duties, or any money to either party hereunder, (iv) the return of materials to either party; (v) the confidentiality obligations set forth hereunder.
This Agreement and the documents or instruments referred to herein contain the entire agreement and understanding between the parties with respect to the subject matter hereof and supersede all prior oral or written agreements or understandings between the parties relating thereto.
This Agreement shall be construed under the laws of the State of South Carolina, without regard to its principles of conflicts of law. The parties agree that any action arising under or in connection with this Agreement shall be brought in the state or federal courts in Greenville County, South Carolina, and the parties hereby waive any rights to assert jurisdiction or venue in any other court. Your rights and obligations under this Agreement are not assignable without the prior written consent of Website Pipeline. Website Pipeline may assign its interest hereunder without Your consent. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. Nothing contained in this Agreement, express or implied, is intended to confer upon any person or entity, other than the parties hereto and their permitted assigns, any rights or remedies of any nature whatsoever by reason of this Agreement.
You agree that You shall comply with all export, re-export or import laws and regulations of any jurisdiction from which the website is transmitted or accessed. You further agree that You shall obtain written authority from all appropriate governmental bodies, if You intends at any time to re-export any items originating from such jurisdiction to any proscribed destination.
If any provision in this Agreement is held invalid, void, or unenforceable by a court of competent jurisdiction, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way.
Government Restricted Rights Legend. Any Software or Services which are used by or transmitted for or on behalf of the United States of America, its agencies and/or instrumentalities (U.S. Government), are provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Ebiz4idiots, Inc./Website Pipeline, 777 Lowndes Hill Rd, Bldg 3, Suite 214, Greenville, SC 29607.