UniteU Terms and Services

UniteU Technologies Website Development, Hosting and Services Agreement:

Under this Website Development Hosting and Services Agreement (the “Agreement”), UniteU Technologies, Inc.  (“UniteU”) will provide website development, hosting and services (collectively, “Services”) for the customer identified on the Sales Quote (“Customer”) in accordance with the following terms and conditions:


1.    Term.
This Agreement is effective when a copy of the Sales Quote signature sheet is signed by an authorized representative of the Customer and mailed and / or sent via Fax to UniteU. The Term of this Agreement will initially last for a period of one (1) year from the effective date and automatically renew annually for an additional one (1) year period unless either the Customer or UniteU terminates the Agreement under the termination provisions set forth in Section 11 "Termination" below.
 


2.    Definitions.
The definitions set forth herein shall apply to the capitalized terms used in this Agreement and its related attachments.
“Customer Marks” mean the trade names, trademarks and service marks of Customer.


“Customer Website Content” means components of digital content (e.g.  text, graphic image files and sound files) that are either provided by Customer to UniteU or developed by UniteU pursuant to the terms of a written agreement for Customer’s benefit and ownership, and used in the creation of Customer’s website.  Customer Website Content does not include complete HTML web pages that may be generated by the Service using the Content, the back-end technical infrastructure of the Service, Professional Services (unless otherwise expressly and unambiguously specified in a written agreement) or any other intellectual property of UniteU.


“DMCA” means the Digital Millennium Copyright Act that is a United States copyright law implementing two 1996 treaties of the World Intellectual Property Organization (WIPO).  For the purposes of this agreement, this term is used to refer more specifically to the amended section of the United States Code (17 U.S.C.  Section 512) which limits the liability of the providers of on-line services for copyright infringement by their users.


“Implementation Plan” will be provided to Customer.  It outlines the tasks required to implement Customer’s website, assigns responsibility for each task, and sets forth the timeline for completion of each task.


“Initial Site Review” means the event that occurs when UniteU and Customer together formally review the website developed by UniteU on Customer’s behalf which substantially provides the expected functionality, graphic design and user navigation.  At the time of the Initial Site Review, UniteU will document any tasks that in the opinion of UniteU or Customer remain to be completed before the website may be placed into Production.


“Payment Card Industry (PCI)” denotes the debit, credit, prepaid, e-purse, ATM, and POS cards and associated businesses.  The term is sometimes more specifically used to refer to the Payment Card Industry Security Standards Council, an independent council originally formed by American Express, Discover Financial Services, JCB, MasterCard Worldwide and Visa International in 2006.
“Payment Card Industry Data Security Standard (PCI DSS)” is a worldwide information security standard maintained by the Payment Card Industry Security Standards Council, which was created to help organizations that process card payments prevent credit card fraud.  The standard applies to any entity that holds, processes or communicates cardholder information from any card branded by one of the PCI card brands.


“Production” means that Customer’s website is publicly accessible via the Internet.


“Product Manufacturer Website Content” means any website-ready content (e.g.  text and graphic image files) that a manufacturer provides to Customer for use in marketing the manufacturer’s products on Customer’s website.


“Professional Services” means any additional services performed by UniteU to meet unique Customer requirements, including, but not limited to: further modify or enhance Customer’s website, advanced training and web marketing consultation or other services pertaining to support, maintenance or improvement of the website.


“Proposal” means a document detailing any work that Customer has requested and UniteU’s proposal and pricing to meet Customer’s requirements which may be issued from time to time, in writing, signed by an authorized representative of each party and subject to the terms of this Agreement.


“Sales Quote” will be provided to Customer, detailing the website development services that UniteU will perform for Customer, and the associated price(s) that UniteU will charge Customer.
“Services” means the services provided by UniteU to Customer, including, without limitation, the services set forth in Section 3 of this Agreement.


“Site Manager” means the web browser-based administration tool provided by UniteU to Customer for the purpose of managing Customer’s website.


"SSL Certificate" means Secure Sockets Layer which is a protocol designed to enable applications to transmit information back and forth securely through the use of encryption and decryption.

 
“Statement of Work” means a document entitled Statement of Work executed by both of the parties hereto that sets forth the Professional Services and any deliverables relating thereto that are to be provided by UniteU for the benefit of Customer and that by reference can be deemed to supplement and amend this Agreement.


“System” means the UniteU network, hardware and software through which UniteU provides the Services.


“Third Party Provider” means an entity separate from UniteU that offers a product or service that may provide additional functionality to a Customer’s website.  Examples of functionality that might be provided by a Third Party Provider may include, without limitation, payment processing, advanced search or content delivery services.  UniteU reserves the right to reject, in its sole discretion, the use of any products or services of a Third Party Provider.


3.    Services


3.1    Personnel.  Each party designates the person set forth in the Implementation Plan to be the primary point of contact with the other party during the Term.  Each party may substitute alternate contact persons from time to time by providing written notice to the other party.

 
3.2    Professional Services.

 

3.2.1.    Upon the request of Customer, UniteU may provide Professional Services as mutually agreed to in writing within a Sales Quote, Statement of Work or any amendments hereto, which may be made by email communication with both parties expressly consenting to the terms thereof.  If the Professional Services relate to technical support then, unless otherwise agreed by UniteU, UniteU will only provide such services if Customer is using the most recent update or version of the software associated with the Services.  


3.2.2.    Unless expressly and unambiguously agreed to in writing by UniteU and Customer, no deliverable of the Professional Services shall be provided on an exclusive basis and UniteU may, in its sole discretion, use such deliverable with its other customers (to the extent that such deliverable does not contain content provided by Customer).  Nothing in this Agreement shall be construed to limit UniteU’s right to use such deliverable or any information in non-tangible form that may otherwise be retained by UniteU or its employees, contractors and agents.


3.3    Hosting Services.
 

3.3.1.    Pursuant to the terms of this Agreement, UniteU shall provide storage for Customer’s website and make it available for Customer’s end-users to access via the Internet (“Hosting Services”).  UniteU is not responsible for “down time" that is caused by factors beyond UniteU’s control, such as Internet traffic, Customer’s Internet connection, or the Internet connections of UniteU’s Internet Service Providers and collocation vendors. The servers used to provide the Hosting Services are physically located in the United States of America and are therefore subject to the laws thereof.  Customer agrees and acknowledges that UniteU has no control of availability of the Hosting Services and all warranties, express or implied, that the Hosting Services will be uninterrupted, error-free, or completely secure are disclaimed by UniteU.  Customer understands that there are risks inherent in Internet connectivity, as a publically accessible network, that could result in the loss of Customer’s privacy, confidential information and property.  UniteU encourages Customers to change their passwords frequently in an effort to mitigate such risks.
 

3.3.2.    Customer shall be responsible for ensuring that UniteU’s System is not excessively overloaded.  If Customer exceeds its allotted bandwidth, computer cycles or disk space and could thereby potentially overload UniteU’s System, UniteU reserves the right, but not the obligation, to quarantine Customer’s site, throttle traffic or invoke other techniques that it deems in its sole discretion necessary to protect the stability of its network, including, without limitation, the removal of Customer’s website from the System.  Customer shall also be assessed any and all fees, costs and penalties associated with such overload.  UniteU encourages Customer to provide advanced notice of planned events that may result in a sudden spike in website traffic (e.g., an appearance on a nationally syndicated television show, substantially advertised promotion), so that UniteU may create a response plan to minimize the effect.
 

3.3.3.    UniteU’s System is not designed to be an archive and UniteU shall have no liability to Customer or any other person for loss, damage or destruction of any of Customer’s materials hosted on the System.  As such, Customer is solely responsible for the archival of its website’s content.  
 

3.3.4.    Customer acknowledges that UniteU will, from time to time during the Term, temporarily reduce or interrupt access to the System for the purpose of maintenance or periodic enhancement of the System.  UniteU will attempt to coordinate the scheduling of such events at times designed to minimize the disruption to Customer’s business.  During maintenance periods Customer’s operations may be impacted by procedures that require server or network component reboots (e.g., to apply vendor-supplied security patches).  Maintenance schedules and announcements regarding short term Service issues will be posted for Customer viewing on the UniteU customer support portal at (http://support.uniteu.net) and/or on our RSS feed at (http://support.uniteu.net/updates.rss).
 

3.3.5.    Notwithstanding anything that may be construed to the contrary contained in this Agreement, UniteU may suspend the Services without liability if: (i) UniteU reasonably believes that the Hosting Services are being used in violation of this Agreement or UniteU’s policies; (ii) Customer fails to cooperate with UniteU’s reasonable investigation of any suspected violation of this Agreement or UniteU’s policies; (iii) there is an attack on Customer’s hosted system or Customer’s hosted system is accessed or manipulated by a third party without the consent of UniteU, (iv) UniteU is required by law, or a regulatory or government body to suspend the Hosting Services; or (v) there is another event for which UniteU reasonably believes that the suspension of Services is necessary to protect the UniteU’s System or other customers.  UniteU will use commercially reasonable efforts to give Customer advance notice of a suspension under this paragraph of at least twelve (12) business hours unless UniteU determines, in its sole discretion, that a suspension on shorter or contemporaneous notice is necessary to protect UniteU or its other customers from imminent and significant operational, legal or security risk.
 

3.4    Email Services.
3.4.1.    If Customer engages UniteU to provide an email solution, UniteU hereby grants a non-exclusive right to use that portion of the System necessary to provide such email capability.  Customer shall be responsible for administering Customer’s mail service, including the addition of mailboxes.
 

3.4.2.    UniteU may provide functions designed to filter unwanted email message such as “Spam”, however, UniteU provides no representations or warranties with respect to the capabilities of such functions and Customer agrees and acknowledges that such filters are limited and may capture legitimate email and fail to capture undesirable email.
 

3.4.3.    UniteU has a zero tolerance “Spam” distribution policy and Customer is prohibited from using UniteU’s mail services to send commercial solicitations unless (i) the recipient of Customer’s email has made a purchase, requested information, responded to a questionnaire or a survey, or had offline contact with Customer, (ii) in the form of a marketing/newsletter that includes a working hyperlink for recipients to unsubscribe to future communications, (iii) Customer processes or causes to be processed any unsubscribe requests within ten (10) days, (iv) the “from” address contains the domain name of Customer’s UniteU store, and (v) the subject line does not contain any misleading information.  UniteU reserves the right, but shall have not obligation, to actively monitor its mail servers for abuse and failures to comply with the aforementioned criteria.  UniteU shall have the right to immediately terminate Customer’s use of UniteU’s email Services without refund and charge Customer for any processing fees relating to “Spam” notices received from a recipient.  
 

3.4.4.    Customer agrees and acknowledges that UniteU may view and use the message routing data from Customer’s email messages for UniteU’s general business purposes, including maintaining and improving security, improving UniteU’s services, and developing products. In addition, Customer agrees that UniteU may disclose message routing data to third parties in aggregate statistical form, provided that UniteU does not include any personally identifiable information.
 

3.4.5.    In no event shall UniteU be responsible for the archival of Customer’s email.  UniteU may perform routine data backups on a "snap shot" basis at a specific moment, however, this method only captures items present during the exact time of the backup and does not include all sent, received or stored emails. Further UniteU’s “snap shot” backup may only be retrieved for a limited time, typically no more than fourteen (14) days.  Any request for retrieval of an email backup shall be deemed Professional Services on a time and materials basis with a minimum two (2) hour charge. UniteU does not warrant that the retrieval will be successful in recovering the item(s) desired by Customer.
 

3.5    SSL Services.
3.5.1.    Customer agrees and acknowledges that an SSL Certificate is necessary for any Customer Website that actively offers for sale products or services on the Internet (an “Internet Transactions”).  If Customer conducts, or intends to conduct, Internet Transactions, then UniteU shall purchase an SSL Certificate on Customer’s behalf at Customer’s cost from UniteU’s preferred SSL Certificate vendors. Customer understands that SSL Certificate pricing may vary among UniteU’s preferred SSL Certificate vendors and based upon the type of SSL Certificate Customer may request.
 

3.5.2.    When purchasing an SSL Certificate, Customer is required to provide requested information in a timely manner in order to complete the purchase.  Further, Customer must provide UniteU with its current contact information at all times.  If Customer fails to respond to UniteU’s inquiries within 14 days or otherwise delays completion of the SSL Certificate process for 14 days or more, Customer agrees that such order will be considered completed and will charge the non-refundable fee associated with such SSL Certificate. Should Customer wish to reinstate the SSL Certificate process after such time, Customer will need to place a new order and timely respond to all requirements. No credit for the completed order will be issued.
 

3.5.3.    In addition to the terms and conditions of this Agreement, Customer acknowledges that UniteU may provide the SSL Services through a Third Party Provider, and accordingly, use of the SSL Services is subject to such Third Party Provider’s acceptance of Customer’s application and Customer’s acceptance of such Third Party Provider’s terms and conditions.
 

3.5.4.    Customer is solely responsible for any liability arising out of or related to the SSL Certificate.  Customer agrees to defend, indemnify and hold UniteU harmless from and against any claims relating to or arising out of the SSL Certificate, and such obligation shall survive termination of this Agreement.  Customer assumes all risk and consequences of deadlines relating to an SSL Certificate renewal term.  


 

4.    UniteU’s Obligations.
 

4.1    Performance of Services.  UniteU shall use commercially reasonable efforts to perform the Services in accordance with the Implementation Plan in all material respects.
 

4.2    System.  UniteU is responsible for the acquisition, operation and maintenance of the System and connections between the System and the Internet.  UniteU shall maintain the System using the same standards UniteU uses for the maintenance of its own website (www.uniteu.com).  
 

4.3    Security.  UniteU shall use commercially reasonable efforts to maintain industry-standard security procedures to protect the integrity of the System and Customer’s data (while that data is on the System) including, without limitation, those of the PCI DSS designed to protect personal and credit card information from unauthorized access.
 

4.4    Training.  UniteU will provide Customer’s personnel with initial training on the use of the Site Manager via free group sessions.  
 


5.    Customer’s Obligations.


5.1    Assistance in Performance of Services.  Customer shall provide all personnel, access and attention necessary to allow UniteU to develop Customer’s initial website and perform the other Services contemplated hereby.  Customer shall perform any additional work, and comply with any obligations, set forth in the Implementation Plan, including, without limitation, providing UniteU with Customer Website Content.


5.2    Customer’s System.  Customer shall acquire and maintain all computer hardware, software and the network interface required to access the Internet and the System from Customer’s facilities.
 

5.3    Security.  5.3.1.    Customer shall comply at all times with UniteU’s policies and procedures, as amended from time to time, relating to the security of Customer’s website and the System.  Current versions of such policies and procedures are available on UniteU’s website and Customer shall regularly visit the website to review such changes.  At all times, Customer shall remain responsible for: (i) any changes to the Website made by customer or customer’s end-users - particularly with respect to changes which negatively impact site operations or are a potential security hazard, (ii) Customer’s compliance with the PCI DSS with respect to Customer’s environment and operations – including Customer’s websites provided by UniteU; and (iii) any breach of security within Customer’s environment and/or resulting from Customer’s negligence.
 

5.3.2.    Customer agrees and acknowledges that as an entity that stores, processes and or transmits shoppers’ personal information including credit card information, Customer is subject to the compliance requirements specified in the PCI DSS.  While UniteU provides a framework which under optimal security settings is PCI DSS compliant, if Customer changes such settings to view credit card information such security and compliance can be compromised.  Therefore, if Customer chooses to view credit card information then Customer shall assume all risk and liability relating, directly or indirectly, to such action and agrees to defend, indemnify and hold harmless UniteU for any resulting costs, claims or damages associated therewith.
 

5.3.3.    Customer agrees and acknowledges that that if Customer modifies or causes to be modified (including instructing UniteU) the contents of the Customer’s website to utilize third party systems or materials not approved by UniteU (e.g., references to non-UniteU servers that will download Javascript code from the third party server to an End User browser), then Customer’s website will no longer be covered by UniteU’s PCI compliance certification as UniteU cannot vouch for the PCI compliance of the third party’s development practices and systems.  In such instances, all UniteU-supplied aspects of Customer’s website will remain compliant, however, Customer shall at its own cost take such additional steps (e.g., contracting a security firm to perform penetration tests per the PCI DSS) as may be necessary to confirm PCI compliance.  
 

5.4    Training.  Any Customer personnel to be trained by UniteU must possess minimum skills in the use of personal computers and Internet technologies (e.g.  Web browsers).  Provided Customer’s personnel meet the minimum skill requirements, the cost of such training is included in the fees paid by Customer for the initial website implementation.  If UniteU must train Customer’s personnel to meet the minimum skill requirements prior to or during Site Manager training, Customer will pay UniteU for the extra time in accordance with UniteU’s then applicable rates for Professional Services.  Alternatively, Customer may request private training in any area of UniteU’s application on an hourly basis at then applicable rates for Professional Services.
 

5.5    Products.  Customer shall acquire and possess any and all appropriate agreements, licenses and/or rights necessary to display Product Manufacturer Website Content as contemplated hereby and in order to offer and sell all products on Customer’s website.
 

5.6    Prohibited Uses and Actions.  
5.6.1.    Customer shall not use the System or Services to: (i) display pornographic material of any kind; (ii) transmit material that is unlawful, misleading, harassing, libelous, abusive, fraudulent, threatening, harmful, grossly offensive or otherwise objectionable; (iii) transmit material that contains viruses or any other harmful programs or code; (iv) collect, post or distribute personal information about others without their consent; (v) transmit chain letters or any unsolicited e-mail messages; (vii) post or transmit any material that may infringe the copyright, trademark, trade dress or other intellectual property rights or any other personal or property rights of a third party; (viii) store files not related to Customer’s web site; (ix) advocate, assist or describe methods to hack or penetrate security measures; or (x) offer or conduct activities related to gambling, sweepstakes, raffles, lotteries, pyramid or similar schemes; (xi) create an anonymous gateway; (xii) violate any federal, state or local law or regulation of a governing body; (xiii) in the location where the violating content is received; (B) Customer agrees not to

 

5.6.2.    Customer shall not, or attempt to, (i) gain unauthorized access to UniteU’s network, System or Services; (ii) interfere with UniteU’s System or Services; (iii) interfere with another UniteU customer’s use of UniteU’s System or Services; or (iv) impair the functioning or operation of UniteU’s System or Services; or (v) decipher, decompile, disassemble or reverse engineer the System or the Services or assist or encourage any third party to do so.
 

5.6.3.    If UniteU believes, in its sole discretion, that Customer has participated in any prohibited use or action set forth above, UniteU may immediately (i) remove any content that is the subject of a prohibited use appearing on Customer’s website, (ii) block public access to Customer’s website from the Internet, or (iii) remove Customer’s website from the System, in each case without prior notice to Customer or penalty.  Upon satisfaction that such a violation will not recur, and receipt of a reinstatement fee of $500.00, UniteU may, in its sole discretion, reverse any action described above taken.


5.7    DMCA.  Customer agrees to: (i) comply by UniteU’s policy with respect to the DMCA as posted on UniteU’s website; (ii) respond expeditiously to communications from UniteU with respect to allegations of Customer’s copyright infringement by third parties; (iii) hold UniteU harmless from any action taken pursuant to the DMCA tification as defined in (17 U.S.C.  Section 512(g)(3)) and documented in UniteU’s DMCA policy.


5.8    Customer Marks.  Customer hereby grants a non-exclusive worldwide right and license to use Customer’s name and Customer marks provided to UniteU hereunder for use (i) in connection with the performance of the Services and delivery of the deliverables contemplated hereunder, (ii) on UniteU’s own Websites, (iii) in the marketing and promotion of UniteU’s services in any medium, and (iv) as may be reasonably necessary and ancillary to the foregoing.


5.9    Account Information.  Customer is solely responsible for maintaining the confidentiality of its accounts and related passwords and all acts, omissions and use under and charges incurred with Customer’s accounts or passwords.  


5.10    Inquiries.  Customer shall report anomalies with the Services or to ask questions by submitting a support request through Customer support portal at (http://support.uniteu.net) or by phone or email as instructed on the UniteU website (www.uniteu.com).


5.11    Sublicense.  Customer shall not sublicense or resell any of the Services to any third party without the prior written consent of UniteU, including, without limitation, providing hosting services to a third party.



6.    Service Enhancements. 

UniteU reserves the right, from time to time and in its sole discretion, to update, upgrade, modify and enhance the Services with additional features or functionality accessible to all UniteU customers.  UniteU shall use commercially reasonably efforts to prevent the same from causing any reduction in the features and functionality enjoyed by Customer with UniteU’s system prior to such change.  Notwithstanding the foregoing, in no event shall UniteU have a duty to resolve or be liable for any adverse effect from, or incompatibility between, such system enhancements and any code or modification provided by UniteU and Customer shall be responsible for resolving the same at its cost.  



7.    Pricing and Payment Terms.  


7.1    Pricing.  Pricing for the performance of Services shall be set forth in the Sales Quote, Statement of Work or other Proposal (which may be made via email or support portal communications) provided to Customer by UniteU.


7.2    Payment Methods.  UniteU accepts VISA or MasterCard and may accept personal and company checks in its sole discretion.


7.3    Fees for Initial Website Implementation.  UniteU will invoice Customer, and Customer will pay UniteU on the following schedule for initial website implementation:
(i)    A deposit as stated in the Sales Quote upon acceptance of this Agreement.  Such deposit must be received by UniteU prior to commencing work on the project.  If so elected by Customer in writing, UniteU shall have the right to charge Customer’s credit card on file, from time to time, for payment of any outstanding amounts that are due and payable.
(ii)    Monthly base service fees (prorated as necessary) begin 30 days upon signing and are applied to system administration, consulting, project management, training and quality assurance costs incurred during the kickoff, preparation, implementation, review and quality assurance phases of the project.
(iii)    The remaining balance of the total amount stated in the Sales Quote upon completion of the Initial Site Review between UniteU and Customer.
If, in UniteU’s sole discretion, placing a customer website into Production is unduly delayed due to the (in)action of Customer, Customer will forfeit their initial deposit and UniteU may require a re-quotation and/or other additional fees to reinitiate the website implementation project.  Determination of a project’s delay will be based upon the target date to place a website into Production agreed to between UniteU and Customer after UniteU and Customer have agreed upon project scope and timing, as may be mutually modified, from time to time, by UniteU and Customer in writing.  Customer actions that may lead to undue delays include, but are not limited to, failure to timely perform its required tasks, respond to UniteU personnel, attend scheduled meetings, make decisions or provide content required by UniteU.


7.4    UniteU Monthly Base Service Fees.  As of the first day of each month, Customer shall pay UniteU the appropriate fees for utilization of the base Services and any chargeable features based upon the parameters set forth in the original Sales Quote (or any amendments thereto) for the upcoming month.  In the event that allocated infrastructure resources are exceeded in any given month, usage excess fees shall apply at the rate set forth in the original price quote.  All fees and charges set forth in any Sale Quote are exclusive of any applicable sales or other applicable taxes.


7.5    UniteU Fees Paid In Arrears.  As of the first day of each month, Customer will pay UniteU, in arrears, applicable charges for services whose charges are not known in advance, such as (i) labor-based services, such as Professional Services, and (ii) fees for services whose charges are based on various usage rates determined at the end of the preceding month.  In some instances, usage-based services may be provided to Customer by Third Party Providers the applicable costs for which may flow through UniteU for Customers convenience, and for which UniteU may not know until UniteU is invoiced and subsequently invoices Customer.  The charges will relate to Services as are requested by Customer and performed by UniteU or a Third Party Provider in accordance with UniteU’s then applicable rates for such services, as set forth in the applicable Sales Quote or Statement of Work or any amendments hereto or as approved in email or support portal communications.  All fees and charges set forth in any Sales Quote or Statement of Work or any amendments hereto are exclusive of any applicable sales or other applicable taxes.


7.6    Invoices.  UniteU will issue invoices to Customer monthly.  Applicable taxes will be listed separately on the invoice.  Invoices are billed and payable in United States Dollars.  In the event of a dispute concerning an invoice, Customer must provide written notice concerning the nature of the dispute to UniteU within 30 days of receipt of the invoice, and must pay the undisputed portion of the invoice in accordance with the terms set forth above.


7.7    Penalties for Late Payments.  Invoices are payable within 30 days of the date of invoice.  UniteU may assess a monthly late payment penalty on the unpaid balance of any undisputed portions of an invoice not to exceed the lesser of 2% per month or the maximum amount allowed by law.  After 60 days past due, UniteU may, at its own discretion, suspend provision of technical support to Customer and / or block Customer access to Customer’s website, block public access to Customer’s website from the Internet and / or immediately remove Customer’s website from the System.  Upon receipt of all past due amounts - including any applicable interest charges - plus a reinstatement fee of $500.00, UniteU may reverse any such actions described above taken as a result of non-payment.


7.8    Taxes.  All fees charged by UniteU hereunder shall be exclusive of all taxes, VAT and similar fees now in force or hereinafter enacted that are imposed by the performance of services hereunder.  Customer shall be liable for, and caused to pay, all sales, use and excise taxes relating to this Agreement or resulting from the transactions conducted on Customer’s website, except for taxes based on or measured by UniteU’s net income.  If UniteU is required to pay directly any taxes (other than those relating to UniteU’s net income), then Customer shall immediately upon receipt of a pertinent invoice from UniteU promptly reimburse UniteU for any taxes paid.


7.9    Price Changes.  UniteU reserves the right to modify prices.  UniteU will provide 60 days written notice of any changes to Customers.


8.    Warranty.  UniteU warrants that (i) it owns or has sufficient rights to the System to make it available to Customer as contemplated by this Agreement and (ii) the Services will be provided during the Term in accordance with this Agreement in all material respects.  EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THE PRECEDING SENTENCE, THE SYSTEM AND THE SERVICES ARE PROVIDED BY UniteU “AS-IS” AND “WITH ALL FAULTS” AND UniteU EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED,, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THAT  THE SYSTEM OR SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE.  If there is any warranty claim or any other contract deficiency with respect to the System, the Services or this Agreement, Customer’s exclusive remedy, and UniteU’s sole obligation, shall be for UniteU: (i) to repair or replace the defect or provide a suitable work around as soon as reasonably practical after receipt of Customer’s written notice describing the defect; and (ii) if such repair or replacement is not provided or does not correct the defective item, to refund an equitable part of Customer’s payments for the defective item determined in reference to prior use and impact of the defect.



9.    Indemnity.


9.1    By UniteU.  UniteU will indemnify, defend and hold harmless Customer against any costs and damages, including reasonable attorneys’ fees, that a court finally awards to a third party as a result of a claim, or which are payable to a third party as a result of a settlement of such claim (collectively, “Losses”) arising from the breach by UniteU of a representation, warranty, covenant or obligation contained herein; provided, however, that UniteU’s obligations under this indemnity will not apply to any Losses which results from Customer’s (a) modification of the Services, (b) breach of this Agreement, or (c) combination or use of the Services with products or services not furnished by UniteU.  Customer shall provide UniteU prompt written notice of such claim and permits UniteU to conduct the defense and all related settlement negotiations.  UniteU will have no obligation with respect to any claim that Customer settles without UniteU’s consent.  


9.2    By Customer.  Customer will indemnify, defend and hold harmless UniteU against any Losses arising from the breach by Customer of a representation, warranty, covenant or obligation contained herein.  UniteU shall provide Customer prompt written notice of such claim and permit UniteU to conduct the defense and all related settlement negotiations.  Customer will have no obligation with respect to any claim that UniteU settles without Customer’s consent.



10.    Limitation of Liability
UNITEU ASSUMES NO RESPONSIBILITY WITH RESPECT TO THE USE OF THE SYSTEM OR SERVICES BY CUSTOMER OR ITS END USERS.  UNITEU SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, REVENUE OR PROFIT, LOSS OR CORRUPTION OF DATA, DOWNTIME COSTS, COSTS OF ANY SUBSTITUTE SERVICES OR CLAIMS OF ANY THIRD PARTY, INCLUDING CUSTOMER’S OR END USERS FOR SUCH DAMAGES, EVEN IF UNITEU KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.  UNITEU SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY INFRINGEMENT OF ANY COPYRIGHT, TRADEMARK, TRADE DRESS, SERVICE MARK, OR OTHER INTELLECTUAL PROPERTY RIGHTS ARISING FROM THE USE OR INABILITY TO USE THE SYSTEM OR SERVICES, OR BY THE UNAUTHORIZED USE OF, OR ACCESS TO, THE SYSTEM OR SERVICES.  UNITEU’S MAXIMUM LIABILITY FOR ANY DAMAGES OR WARRANTY OBLIGATIONS ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES RESULTING FROM UNITEU’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND WILL NOT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE OF THE AMOUNTS PAID BY CUSTOMER FOR HOSTING SERVICES DURING THE 6-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.


CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT OR RELATING TO THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.


THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW AND SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT OR THE PERFORMANCE OF ANY SERVICES TO BE RENDERED HEREUNDER.



11.    Termination


11.1    Cessation of Business.  Either party may terminate this Agreement immediately if the other party ceases to conduct its operations in the normal course of business, or files for or becomes the subject of a bankruptcy petition, or is placed in receivership.


11.2    Termination for Cause.  This Agreement will terminate immediately if either party fails to remedy a material breach of its obligations within 30 days after receipt of a written notice from the other party specifying in reasonable detail the nature of the breach.


11.3    Termination without Cause.  UniteU and/or Customer may terminate this Agreement without cause, effective as of the close of business on the last day of any annual contract period - as described in Section 1 "Term" - by providing written notice to the other party no later than 30 business days prior to the end date of the annual contract period.

11.4    Effect of Termination.  Immediately upon termination, UniteU’s obligation to provide the Services will cease, and all unpaid fees and charges of Customer for services provided by UniteU will immediately become due and payable.  UniteU will remove Customer Website Content from the System and, at Customer’s option, either destroy it or return it to Customer at Customer’s expense.


11.5    Hosting and Porting.  In the event Customer terminates this Agreement, porting of Customer’s website off of the UniteU hosting servers shall be Customer’s responsibility.  UniteU will not transfer, manage, port or FTP Customer’s website to another provider.


12.    Ownership of Customer Website Content.  Customer acknowledges and agrees that (i) unless expressly stated elsewhere, UniteU has no proprietary, financial, or other interest in Customer’s Content; (ii) UniteU does not, by virtue of offering or hosting Customer Website Content, edit, distribute, market, sublicense, publish, or otherwise provide Customer Website Content to end users; and (iii) Customer is solely responsible for all aspects of the Customer Website Content.  Customer represents and warrants that it owns or has the right to use and offer the Customer Website Content in the manner contemplated to be offered or offered by Customer during the term of this Agreement.



13.    UniteU Proprietary Rights.  


13.1    Ownership.  The Service, which includes but is not limited to, all intellectual property rights comprising the Service are, and shall remain at all times, the property of UniteU or its licensors (as applicable).  


13.2    Reservation of Rights.  All rights not expressly granted to Customer in this Agreement are hereby expressly reserved and retained by UniteU and its licensors (as applicable).  Without limiting the generality of the foregoing, Customer shall not (and shall not allow any third party to): (i) use the Service outside of the scope of the limited license herein granted, including but not limited to use for the sole purpose of obtaining a competitive advantage against UniteU; (ii) sublicense, distribute, copy, modify, adapt, translate, or prepare derivative works of, the Service; (iii) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of UniteU; (iv) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with UniteU (or any of its affiliates or licensors); (v) reverse engineer, disassemble, or decompile any software or otherwise attempt to discover any source code or trade secrets related to the Service; or (vi) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
 

13.3    New Intellectual Property.  between UniteU and Customer, UniteU retains all right, title and interest in and to the System and Services and Customer acknowledges and agrees that (i) no configuration or deployment of the System or Services shall affect or diminish UniteU’s rights, title, and interest in and to the System and the Services; and if Customer suggests any new features, functionality or performance for the System or the Services that are subsequently incorporated into the System or the Services, Customer hereby grants UniteU a worldwide, non-exclusive, royalty-free, perpetual right and license to use and incorporate such suggestions into the System and Software.  Customer acknowledges that the Software or the Services incorporating such new features, functionality, or performance shall be the sole and exclusive property of UniteU and all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon UniteU.


14.    Confidentiality. 

Customer acknowledges that this Agreement creates a confidential relationship between Customer and UniteU that is the basis on which UniteU will allow Customer to have access to UniteU’s commercially valuable, proprietary, and confidential information (including, but not limited to, financial, technical, legal or marketing information, whether or not such information is marked as “confidential” or “proprietary”).  Customer shall hold such information in strict confidence and shall not disclose such information to any third party or use such information in any way except as provided for in this Agreement without UniteU’s prior written consent.  This obligation shall survive the termination or expiration of this Agreement.  This obligation does not apply to information which is or may become generally known to the public.  Customer shall safeguard all written materials supplied by UniteU and shall not copy or duplicate such materials except as specifically permitted herein, and shall promptly destroy all such materials upon termination of this Agreement, completion of the Services hereunder, or upon UniteU’s request.



15.    Third Party Providers. 

UniteU shall not be liable for the actions or omissions of any third parties, including, without limitation, Third Party Providers.  Without limitation to the generality of the foregoing statement, UniteU may, from time to time, (i) recommend the products or services of a Third Party Provider for Customer’s consideration, (ii) take actions to enable the use of the products or services of a Third Party Provider at the request of Customer, (iii) resell or sublicense the products or services of a Third Party Provider, and (iv) provide support services for Customer with respect to the products or services of a Third Party Provider; provided, however, UNITEU MAKES NO REPRESENTATION AND DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND SERVICES OF THIRD PARTY PROVIDERS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THAT THE PRODUCTS OR SERVICES OF A THIRD PARTY PROVIDER WILL BE UNINTERRUPTED, SECURE, ERROR-FREE AND COMPATIBLE WITH THE SYSTEM.  Customer’s use of any such products and services shall be governed solely by the terms of any agreement between Customer and the provider of those products and services, regardless of whether UniteU is providing support for the products and services of third parties.



16.    Search Engine Analytics. 

UniteU shall not be responsible for any changes in search engine rankings of Customer’s Websites, including, without limitation, those resulting from the actions of third party search engine optimization or marketing service providers of Customer.



17.    Additional Provisions


17.1    Independent Contractors.  Each party is acting as an independent contractor.  Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party, or to constitute the parties as participants in a joint undertaking in any fashion.  The parties understand and agree that, except as specifically provided in this Agreement, neither party grants the other party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other party, or to enter into any contract or otherwise incur any liability or obligation, express or implied on behalf of the other party, or to transfer, release or waive any right, title, or interest of such other party.


17.2    Governing Law.  This Agreement will be governed by the laws of the State of New York as applied to agreements between two residents of the State of New York without regard to its conflicts of laws principles.  The parties submit to the personal jurisdiction of, and waive any objection to the jurisdiction of, the United States District Court for the Western District of New York, and the state courts of the State of New York in Monroe County, New York.


17.3    Equitable Relief.  The parties acknowledge and agree that in the event of any breach of UniteU’s intellectual property rights relating to the System or the Services, UniteU may not have an adequate remedy at law and UniteU shall be entitled to seek equitable relief without the necessity of proving actual damages or posting of a bond.  This provision shall not be construed as a waiver of any legal rights that UniteU may otherwise be entitled.


17.4    Notices.  All notices must be in writing and personally delivered, or sent by facsimile or by registered or by certified mail to the address listed on the cover sheet of this Agreement.  If sent by facsimile or personally delivered, notices will be effective on the day when delivered.  If mailed by registered or certified mail, notices will be effective when received or when delivery is refused.  Either party may change the address to which notices to it are to be sent by giving notice of such change to the other party.


17.5    Waiver; Severability.  Failure by either party to enforce any term or condition of this Agreement will not be deemed a waiver of future enforcement of that or any other term or condition.  If any term of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in effect as if this Agreement had been executed with the invalid portion eliminated.


17.6    Entire Agreement; Amendment.  This Agreement, including any exhibits and attachments, is the entire agreement of the parties and supersedes all prior agreements and understandings, whether written or oral, with respect to the subject matter of this Agreement.  This Agreement may not be amended except by a written amendment executed by authorized representatives of both parties.


17.7    Headings; References . The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. All references to monies contained herein shall relate to the currency of the United States of America.


17.8    Marketing Materials.  During the Term, UniteU may refer to Customer on its Website and in marketing materials and press releases without prior Customer approval.


17.9    Force Majeure.  The obligations of a party will be temporarily suspended in the event of any act of God or other event not reasonably within the control of the party (“Force Majeure Event”), and will remain suspended for the duration of the Force Majeure Event.  If a party’s performance is suspended by a Force Majeure Event for a period exceeding 90 days, the other party may, at its option, terminate this Agreement.  Except for payments of outstanding balances when due, neither party will be liable for any damages or penalties for delay in performance when such delay is due to a Force Majeure Event.


17.10    Assignment.  Neither this Agreement nor an of the rights or obligations hereunder (or under any document delivered pursuant hereto) may be assigned by either party hereto without the prior written consent of the other party.  Notwithstanding anything to the contrary contained in the foregoing, UniteU may assign, in whole or in part, its rights, duties and obligations under this Agreement to (i) an affiliate or successor in interest (whether by merger, reorganization, stock sale or asset sale) and (ii) to a subcontractor, provided, however, that in no event shall a material portion of this Agreement be subcontracted such that Provider is not the primary entity performing the services and providing the deliverables contemplated hereby and taken as a whole.


17.11    Counterparts.  This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.  A party who has executed a counterpart of this Agreement (or any amendment or ancillary agreement hereto) may exchange that counterpart with another party by facsimile or email to the other party and, if that other party requests it, promptly delivering that executed counterpart by hand or mail to that other party. However, the validity of this Agreement (or any amendment or ancillary agreement hereto) is not affected if the party who has faxed or emailed the counterpart delays in delivering or does not deliver it by hand or by mail. Accordingly, this Agreement and any amendment hereto shall be legally binding on any party who faxes or emails an executed counterpart of this Agreement (or any amendment or ancillary agreement hereto) to another party without delivery of the original signed counterpart.