UniteU Technologies Terms and Conditions
Under this Website Development and Hosting Services Agreement (the "Agreement"), UniteU Technologies, Inc. ("UniteU") will provide website development, hosting and services ("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 continue until such time that either the Customer or UniteU terminates the Agreement under the termination provisions set forth below.
2. Definitions
The Definitions set forth herein shall apply to the capitalized terms as used in this Agreement and its related attachments.
"Customer Website Content" means components of digital content (e.g. text, graphic image files and sound files) either provided by Customer to UniteU or developed by UniteU on behalf of Customer for use in 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.
"Digital Millennium Copyright Act (DMCA)" is a United States copyright law that implements 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 the Customer's website, who is responsible for each task, and 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" means any manufacturer of products that the Customer may desire to display and sell on Customer's website.
"Product Manufacturer Website Content" means any website-ready content (e.g. text and graphic image files) that a Product Manufacturer may provide for use by its retailers / dealers for use in marketing Product Manufacturer's products.
"Professional Services" means any additional services provided to Customer by UniteU to meet unique Customer requirements, including, but not limited to: further customization of Customer's website, advanced training and web marketing consultation or other services pertaining to the 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 the 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 the Customer, and the associated price(s) that UniteU will charge the Customer.
"Site Manager" means the web browser-based administration tool provided by UniteU to Customer for the purpose of managing Customer's website.
"System" means the UniteU network, hardware and software through which UniteU provides the Services.
"Third Party Provider" means an entity separate from UniteU with whom UniteU partners to deliver some aspect of a Customer's website functionality. Examples of functionality that might be provided by a Third Party Provider may include payment processing, advanced search or content delivery services. The number and nature of which entities with whom UniteU will partner to deliver functionality is determined at UniteU's sole discretion.
3. Provision of 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. Either party may, at its option, employ subcontractors to perform a portion of its responsibilities under this Agreement, provided that the party appointing the subcontractor will remain responsible for the performance of its subcontractors.
3.2 UniteU's Obligations
3.21 UniteU will perform the Services in accordance with the Implementation Plan.
3.23 UniteU is responsible for the acquisition, operation and maintenance of the System and connections between the System and the Internet.
3.24 UniteU will maintain industry-standard security procedures to protect the integrity of the System and the Customer's data (while that data is on the System) from access by unauthorized persons. As an entity that stores, processes and / or transmits personal and credit card information on behalf of Customer, UniteU will maintain compliance with industry standards such as the PCI DSS with respect to protection of such information.
3.25 UniteU will provide Customer's personnel with initial training on the use of the Site Manager via free group sessions. Customer's personnel who UniteU train must possess minimum skills in the use of personal computers and Internet technologies (e.g. Web browsers). If Customer's personnel meet the minimum skill requirements, the cost of this 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.
3.26 Customer may contact UniteU to report anomalies with the Services or to ask questions by submitting a support request through the customer support portal at (http://support.uniteu.net) or by phone or email as instructed on the UniteU website (www.uniteu.com). UniteU will provide further technical support under the terms of Professional Services as agreed to in writing by the Customer. Such requests and agreement may be in the form of a Sales Quote, Statement of work or any amendments hereto or approval may be made by email communications.
3.27 UniteU will maintain the System using the same standards UniteU uses for the maintenance of its own web website (www.uniteu.com). UniteU does not warrant that service will be uninterrupted. UniteU will make reasonable and timely efforts to restore any interruptions of service. UniteU will have no liability to Customer for any interruption of service. UniteU reserves the right to schedule maintenance periods from time to time required to maintain the System infrastructure and assure security.
UniteU will make all efforts to schedule the maintenance periods in advance to have minimal impact on customer operations. During the maintenance periods some impact on customer operations may occur as some necessary maintenance procedures may require server or network component reboots (e.g. to apply vendor-supplied security patches). Maintenance schedules and announcments regarding short term Service issues will be posted for Customer viewing on the UniteU customer support portal at (http://support.uniteu.net).
3.28 During the term of this Agreement, UniteU may refer to the Customer on its Web site and in marketing materials such as press releases and printed collateral without specific prior Customer approval.
3.3 Customer's Obligations
3.31 Customer will work with UniteU to develop Customer's initial website.
3.32 Customer will perform any additional work, and comply with any obligations, set forth in the Implementation Plan. Such work may include, but not be limited to, providing UniteU with Customer Website Content.
3.33 Customer is responsible for acquiring and maintaining all computer hardware, software and the network interface required to access the Internet and the System from Customer's facilities.
3.34 Customer is responsible for acquiring any and all appropriate agreements, licenses and / or rights from Product Manufacturers to display Product Manufacturer Website Content for, and sell, Product Manufacturer's products on Customer's website.
3.35 Customer agrees to the following rules of conduct. (A) Customer agrees not to use the Services to: (i) display pornographic material of any kind; (ii) transmit material whose transmission is unlawful, harassing, libelous, abusive, threatening, harmful, grossly offensive or otherwise objectionable; (iii) transmit any 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 or distribute chain letters, or any unsolicited e-mail; (vii) post or transmit any material that may infringe the copyright, trademark, trade dress or other intellectual property rights or other rights of a third party; (Viii) use any portion of the System for non website-related purposes - for example storing non website-related files on UniteU servers; or (ix) violate any federal, state or local law in the location where the violating content is received; (B) Customer agrees not to (i) attempt to gain unauthorized access to UniteU's website, network or Services; (ii) attempt to interfere or interfere with UniteU's website, network or Service; or (iii) attempt to interfere or interfere with another UniteU customer's use of UniteU's website, network or Services; and (C) Customer agrees not to use the Services to offer or conduct activities related to gambling, sweepstakes, raffles, lotteries, pyramid schemes, Ponzi schemes or the like. UniteU may, at its own discretion, remove offending or potentially infringing
material from Customer's website and / or block public access to Customer's website from the Internet and / or immediately remove Customer's website from the System if the Customer should violate any of the above rules of conduct. Upon satisfaction that such a violation will not recur, and receipt of a reinstatement fee of $500.00, UniteU will reverse any such actions described above taken as a result of any violation of these rules of conduct.
3.36 Specific to copyright issues, Customer agrees to: (i) comply by UniteU's policy with respect to the Digital Millenium Copyright Act as posted on our website (http://www.uniteu.com/DMCApolicy.aspx); (ii) pursuant to UniteU's policy, respond expeditiously to communications from UniteU with respect to allegations of Customer's copyright infringement by other parties (iii) not hold UniteU to blame if UniteU takes action as required by the DMCA with respect to allegations of copyright infringment by Customer - for example UniteU removing alleged infringing material from Customer's website until such time as Customer can submit a Counter Notification as defined in (17 U.S.C. Section 512(g)(3)) and documented in UniteU's DMCA policy.
3.37 Customer acknowledges that as an entity that stores, processes and or transmits shoppers' personal information including credit card information, Customer is subject to compliance requirements as specified in the PCI DSS. Customer further acknowledges that Customer plays an important role in ensuring the security of the information exchanged with Customer's website.
As a result, Customer agrees to comply by UniteU's policies and procedures with respect to maintaining the security of Customer's website and the System overall, such policies and procedures possibly being amended from time to time due to changing compliance requirements or other reasons. At all times, Customer will remain responsible for: (i) Customer's compliance with the PCI DSS with respect to Customer's environment and operations; and (ii) any breach of security within Customer's environment and / or resulting from Customer's negligence.
3.4 System Enhancements. UniteU reserves the right from time to time to upgrade the Services with additional features or functionality accessible to all UniteU customers and without causing any reduction in the features and functionality enjoyed by the Customer. Customer acknowledges that UniteU may, at its discretion, charge a nominal fee to transfer Customer Website Content in order for Customer to enjoy the benefits of the System enhancements.
3.5 System Maintenance. Customer acknowledges that UniteU will from time to time during the Term be required to temporarily reduce or interrupt access to the System for the purpose of maintenance or for periodic enhancements to the System. UniteU will use reasonable efforts to coordinate the scheduling of such events to minimize the disruption to Customer's business.
4. Pricing
Customer Pricing is provided 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.
5. Payment Terms
5.1 Payment Methods. UniteU accepts VISA or MasterCard. UniteU will accept personal and company checks in the discretion of UniteU.
5.2 Fees for Initial Website Implementation. UniteU will invoice Customer, and Customer will pay UniteU on the following schedule for initial website implementation:
A deposit as stated in the Sales Quote upon acceptance of this Agreement. Such deposit must be received by UniteU prior to work starting on the project.
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.
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. The target date for placing a website into Production may be modified if agreed between UniteU and Customer. Customer actions that may lead to undue delays include, but are not limited to, not responding to attempts by UniteU personnel to contact Customer for an extended period of time, not attending scheduled meetings, not making decisions or providing content required for UniteU to make progress on the implementation in a timely fashion/on an agreed schedule, not performing Customer's tasks relative to website implementation in a timely fashion/on an agreed schedule.
5.3 UniteU Monthly Base Service Fees. As of the first day of each month, Customer will pay UniteU, for that month, 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 hereto. 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.
5.4 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. Fees to be paid to UniteU in arrears fall into two categories; Labor-based services, such as Professional Services, and fees for services whose charges are based on various usage rates and therefore are determined at the end of the preceding month based upon Customer usage of such services (e.g. transactions or payment processing charges). Some usage-based services may be provided by Third Party Providers in which case UniteU may not know the applicable costs until UniteU is invoiced, at which time UniteU will then invoice the 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.
5.5 Technical Support Contract Fees. Any applicable fees for Technical Support contracts are payable in advance.
5.6 Invoices. UniteU will issue invoices to Customer monthly. Applicable taxes will be listed separately on the invoice. Invoices are billed and payable in US 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.
5.7 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 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 will reverse any such actions described above taken as a result of non-payment.
5.8 Price Changes. UniteU reserves the right to modify prices. UniteU will provide sixty (60) days written notice of any changes to Customers.
6. Warranty
UniteU warrants that it owns or has sufficient rights to the System to make it available to Customer as contemplated by this Agreement. UniteU further warrants that the Services will be provided during the Term substantially in accordance with this Agreement. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED ABOVE, UniteU EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF NON-INFRINGEMENT.
7. Indemnity
7.1 By UniteU. UniteU will indemnify, defend and hold harmless the Customer against any claim that the System or the Services infringes a valid patent or copyright, or other intellectual property and UniteU will pay any costs and damages, including reasonable attorneys fees, that a court finally awards against Customer to a third party as a result of such claim, or which are payable by Customer to a third party as a result of a settlement of such claim, provided Customer gives 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. UniteU's obligations under this indemnity will not apply to any infringement claim which results from Customer's modification of the Services, or which results from Customer's combination or use of the Services with products or services not furnished by UniteU.
7.2 By Customer. Customer will indemnify, defend and hold harmless UniteU against any claim (i) that any Customer Website Content infringes a valid copyright or any other intellectual property right or is deemed offensive, (ii) related to exposure/compromise of personal information or credit card numbers that arises from a security breach in Customer's environment/operations. Customer will pay any costs and damages, including reasonable attorneys fees, that a court finally awards against UniteU to a third party as a result of such claim, or which are payable by UniteU to a third party as a result of a settlement of such claim, provided UniteU gives Customer prompt written notice of such claim and permits Customer 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.
8. Limitation of Liability
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 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 SERVICES, OR BY THE UNAUTHORIZED USE OF, OR ACCESS TO, THE SERVICES. UNITEU'S MAXIMUM LIABILITY FOR ANY DAMAGES 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.
9. Termination
9.1 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.
9.2 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 the nature of the breach.
9.3 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 calendar month, by providing written notice to the other party no later than 30 business days prior to the proposed termination date.
9.4 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 the Customer Website Content from the System and, at Customer's option, either destroy it or return it to Customer at Customer's expense.
10. 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.
11. Additional Provisions
11.1 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.
11.2 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.
11.3 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.
11.4 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.
11.5 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.
11.6 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 the foregoing, UniteU may assign, in whole or in part, its rights, duties and obligations under this Agreement to an affiliate or successor in interest (whether by merger, reorganization, stock sale or asset sale).
11.7 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.