EXTIMA WEBSITE HOSTING MANAGEMENT AGREEMENT
This Website Hosting Management Agreement (the “Agreement”) is entered into by and between Extima Inc, a California S-Corporation (“Extima”) and you (the “Company”), and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of Extima’s Management Services (the “Service”) and its Partner’s Hosting services (the “Hosting Services”), and represents the entire agreement between you and Extima concerning the subject matter hereof.
Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with our Partner’s hosting agreement s for their Hosting Services (https://www.rackspace.com/information/legal/cloud/tos for basic hosting or https://www.greengeeks.com/legal/tos for e-Commerce hosting) which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.
The terms “we”, “us” or “our” shall refer to Extima. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement. The terms “Hosting Company”, or “The Host” shall refer to Rackspace and/or Green Geeks. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
WHEREAS, the Company; and
WHEREAS, Extima is engaged in the business of managing services for hosting, storing, and transferring data over the World Wide Web (the “Web”); and
WHEREAS, the Company wishes to engage Extima as an independent contractor for the Company for the purpose of managing the hosting of the Company’s website so that it is available on the Web on the terms and conditions set forth below; and
WHEREAS, Extima wishes to manage the hosting the Website and agrees to do so under the terms and conditions of this Agreement; and
WHEREAS, each Party is duly authorized and capable of entering into this Agreement.
NOW THEREFORE, in consideration of the above recitals and the mutual promises and benefits contained herein, the Parties hereby agree as follows:
The Company hereby engages Extima, and the Extima hereby accepts such engagement, to perform the services described in Exhibit A attached hereto and made a part hereof, in connection with managing the hosting of the Website (the “Services”).
The total compensation for the Services shall be as set forth on the website when signing up for “Services”
This Agreement is effective as of the Effective Date and shall continue in force, unless otherwise terminated in accordance with the provisions of Section 4 of this Agreement, for a period of twelve (12) month[s] (the “Term”). The Agreement will renew automatically on a month to month basis thereafter unless either Party provides thirty (30) days’ written notice of its intent not to renew.
(a) Types of Termination. This Agreement may be terminated:
(i) By either Party on provision of thirty (30) days’ written notice to the other Party.
(ii) By either Party for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within seven (7) days of receipt of written notice thereof.
(iii) By the Company in accordance with the provisions set forth in Sections 8(a) and (b).
(iv) By the Company at any time and without prior notice, if Extima is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directives of the Company, or is guilty of serious misconduct in connection with performance under this Agreement.
(b) Responsibilities after Termination. Following the termination of this Agreement for any reason, the Company shall promptly pay Extima according to the terms set forth on the website signup for Services rendered before the effective date of the termination (the “Termination Date”). Extima acknowledges and agrees that no other compensation, of any nature or type, shall be payable hereunder following the termination of this Agreement. The Company is responsible for backing up all data before the effective date of the termination (the “Termination Date”). After the effective date of the termination (the “Termination Date”), all of the Companies data will be purged from Extima’s servers and may not be recoverable.
(a) Of Extima. Extima agrees to do each of the following:
(i) Manage the hosting the Website as detailed in Exhibit A to this Agreement.
(ii) Devote as much productive time, energy, and ability to the performance of its duties hereunder as may be necessary to provide the required Services in a timely and productive manner.
(iii) Perform the Services in a workmanlike manner and with professional diligence and skill, using fully-trained, skilled, competent, and experienced personnel.
(iv) Provide Services that are satisfactory and acceptable to the Company and take every step to ensure the Website remains up and running and that any time the Website is off-line is kept to a minimum so long as the host is not experiencing down time.
(b) Of the Company. The Company agrees to do each of the following:
(i) Engage Extima as the manager of the hosting of its Website as further detailed in Exhibit A to this Agreement.
(ii) Provide all assistance and cooperation to Extima in order to enable Extima to ensure the Website remains up and running and that any time the Website is off-line is kept to a minimum.
(iii) Provide initial information and supply all materials comprising the Website within five (5) days of the Effective Date.
(iv) Maintain password secrecy and notify Extima immediately of any loss or theft of passwords, or if the confidentiality of any password has been compromised.
(v) Make any changes or additions to the Company’s current systems, software, and/or hardware that may be required to support The hosting of the Website.
(vi) Provide login information to accounts necessary for Extima to access required systems.
6. CONFIDENTIAL INFORMATION.
Extima agrees, during the Term and for a period of one (1) year thereafter, to hold in strictest confidence and not to use, except for the benefit of the Company or as required by law, or to disclose to any person, firm, or corporation without the prior written authorization of the Company, any Confidential Information of the Company. “Confidential Information” means any of the Company’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to Extima by the Company either directly or indirectly. Extima may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with the Company’s personnel or authorized representatives or for any other purpose the Company may hereafter authorize in writing. At the request of the Company, Extima must promptly return all copies of Confidential Information received from the Company, and must promptly destroy all other Confidential Information prepared by Extima, including, without limitation, any notes, reports, or other documents.
7. PARTIES’ REPRESENTATIONS AND WARRANTIES.
(a) The Parties each represent and warrant as follows:
(i) Each Party has full power, authority, and right to perform its obligations under the Agreement.
(ii) This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies).
(iii) Entering into this Agreement will not violate the charter or bylaws of either Party or any material contract to which that Party is also a party.
(b) Extima hereby represents and warrants as follows:
(i) Extima has the sole right to control and direct the means, details, manner, and method by which the Services required by this Agreement will be performed.
(ii) Extima has the experience and ability to perform the Services required by this Agreement.
(iii) Extima has the right to perform the Services required by this Agreement at any place or location, and at such times as Extima shall determine.
(iv) The Services shall be performed in accordance with and shall not violate any applicable laws, rules, or regulations, and Extima shall obtain all permits or permissions required to comply with such laws, rules, or regulations.
(v) The Services required by this Agreement shall be performed by Extima or Extima’s staff, and the Company shall not be required to hire, supervise, or pay any assistants to help Extima perform such Services.
(vi) Extima is responsible for paying all ordinary and necessary expenses of its staff.
(c) The Company hereby represents and warrants as follows:
(i) The Company will make timely payments of amounts earned by Extima under this Agreement and as detailed on the website signup.
(ii) The Company shall notify Extima of any changes to its procedures affecting Extima’s obligations under this Agreement at least seven (7) days before implementing such changes.
(iii) The Company shall provide such other assistance to Extima as it deems reasonable and appropriate.
Extima must use reasonable efforts to insure that the Website is available on the Web except during scheduled maintenance as set forth on Exhibit A hereto.
(a) Routine Maintenance Disruptions. If the cumulative downtime of the Website resulting from scheduled maintenance as set forth on Exhibit A hereto exceeds seven (7) hours during any thirty (30) day period (unless such downtime is approved in advance by the Company), the Company may, in its sole discretion, terminate the agreement immediately by giving written notice to Extima; provided, however, that such immediate termination may issue only if the disruption or disruptions do not arise from any action or inaction of the Company.
(b) Unforeseen Hosting Disruptions. Extima shall inform the Company of any unforeseen disruption of the Services arising from causes that are beyond Extima’s control, including, but not limited to, actions or failures of third parties, and of any remedial actions being taken to minimize the effects and length of any such disruption. Extima will not be liable for damages to the Company resulting from the disruption of the Services that are beyond its reasonable control. Notwithstanding the foregoing, if the Website’s availability is disrupted for a reason other than scheduled maintenance for (i) twenty-four (24) consecutive hours or more during a seven (7) day period, the Company may, in its sole discretion, terminate the Agreement immediately by giving written notice to Extima; provided, however, that such immediate termination may issue only if the disruption or disruptions do not arise from any action or inaction of the Company.
9. NATURE OF RELATIONSHIP.
(a) Independent Contractor Status. Extima agrees to perform the Services hereunder solely as an independent contractor. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. Extima is and will remain an independent contractor in its relationship to the Company. The Company shall not be responsible for withholding taxes with respect to Extima’s compensation hereunder. Extima shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Nothing in this Agreement shall create any obligation between either Party and a third party.
(b) Indemnification of Company by Extima. The Company has entered into this Agreement in reliance on information provided by Extima, including Extima’s express representation that it is an independent contractor and in compliance with all applicable laws related to work as an independent contractor. If any regulatory body or court of competent jurisdiction finds that Extima is not an independent contractor and/or is not in compliance with applicable laws related to work as an independent contractor, based on Extima’s own actions, Extima shall assume full responsibility and liability for all taxes, assessments, and penalties imposed on or against Extima and/or the Company resulting from such contrary interpretation, including but not limited to taxes, assessments, and penalties that would have been deducted from Extima’s earnings had Extima been on the Company’s payroll and employed as an employee of the Company.
10. NO CONFLICT OF INTEREST; OTHER ACTIVITIES.
Extima hereby warrants to the Company that, to the best of its knowledge, it is not currently obliged under any existing contract or other duty that conflicts with or is inconsistent with this Agreement. During the Term, Extima is free to engage in other website hosting activities; provided, however, Extima shall not accept work, enter into contracts, or accept obligations inconsistent or incompatible with Extima’s obligations or the scope of Services to be rendered for the Company pursuant to this Agreement.
(a) Of Company by Extima. Extima shall indemnify and hold harmless the Company and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors, and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur and that arise or result primarily from (i) any gross negligence or willful misconduct of Extima arising from or connected with Extima’s carrying out of its duties under this Agreement, or (ii) Extima’s breach of any of its obligations, agreements, or duties under this Agreement.
(b) Of Extima by Company. The Company shall indemnify and hold harmless Extima from and against all Claims that it may suffer from or incur and that arise or result primarily from (i) its hosting or usage of the Company’s Website in connection with the carrying out of its duties under this Agreement or (ii) the Company’s breach of any of its obligations, agreements, or duties under this Agreement; provided, however, none of the foregoing result from or arise out of the actions or inactions of Extima.
12. INTELLECTUAL PROPERTY.
(a) No Intellectual Property Infringement by Extima. Extima hereby represents and warrants that the use and proposed use of any software, programs, or applications by the Company or any third party to access the Website does not and shall not infringe, and Extima has not received any notice, complaint, threat, or claim alleging infringement of, any trademark, copyright, patent, trade secrets, industrial design, or other rights of any third party. To the extent the software, programs, or applications used to access the Website infringe on the rights of any such third party, Extima shall obtain a license or consent from such third party permitting the use of such items.
(b) No Intellectual Property Infringement by Company. The Company represents to Extima and unconditionally guarantees that all text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are owned by the Company, or that the Company has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend Extima and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Company. The Company further represents to Extima that its domain names or URL listings do not infringe, dilute, or otherwise violate third-party rights or trademarks.
(c) Host Property Rights. All tools, know-how, and technology leased or licensed to Extima with respect to the management of the hosting of the Website are the sole property of Extima, and the Company has no ownership or other intellectual property rights in or to such items.
(d) Company Property Rights. All text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are the property of the Company, and Extima has no ownership or other intellectual property rights in or to such items.
(e) Nature of Website Content. The Company represents that the content of the Website is not defamatory or obscene, does not constitute false advertising, and does not violate any applicable laws or regulations. Extima has the right, but not the duty, to review and monitor all Website content submitted for hosting and to reject or remove any Website content it believes in good faith breaches the Company’s representations made under this Agreement. Extima does not accept responsibility or liability for any errors, inaccuracies or unsuitable content on the Website.
13. LAWS AFFECTING ELECTRONIC COMMERCE.
From time to time, governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Company agrees that it is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Extima and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Company’s exercise of Internet electronic commerce.
No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.
The Company may assign this Agreement freely, in whole or in part. Extima may not, without the written consent of the Company, assign, subcontract, or delegate its obligations under this Agreement; provided, however, that Extima may transfer its right to receive amounts payable for Services under this Agreement, which transfer will be effective only after receipt by the Company of written notice thereof.
16. SUCCESSORS AND ASSIGNS.
All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties.
17. FORCE MAJEURE.
A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:
(a) notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and
(b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.
18. NO IMPLIED WAIVER.
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, or by email with receipt notice.
20. GOVERNING LAW.
This Agreement shall be governed by the laws of the state of California. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
21. COUNTERPARTS/ELECTRONIC SIGNATURES.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, electronic acceptance, or other electronic medium shall have the same force and effect as an original signature.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
23. ENTIRE AGREEMENT.
This Agreement, together with Exhibit A hereto, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
25. SSL CERTIFICATES.
Except as may be limited by specific products or services, any SSL certificate Extima purchases from our affiliates to use in conjunction with the Services is intended for its specific use as described by our affiliate (RapidSSL’s TOC) and will not be exported from the server to be used with any other web hosting service. If you are using an SSL certificate on a website hosted by us, we will generate and securely store a corresponding private key.
26. SERVICE UPTIME GUARANTEE.
We offer a Service uptime guarantee of 99.9% (“Service Uptime Guarantee”) of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 5% of your monthly hosting fee for that month. The credit may be used only for the purchase of further products and services from us, and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (4) causes beyond our control or that are not reasonably foreseeable; and (5) outages related to the reliability of certain programming environments.
27. MIGRATION OF SERVER.
You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers.
28. 3rd PARTY SOFTWARE LICENCES.
As part of Extima’s Managed WordPress hosting plans, the website will be extended access to licenses owned by Extima for certain softwares to extend WordPress core functionality. Upon termination of Managed Hosting services, it is the responsibility of the client to remove those licenses or acquire their own license.
DUTIES, SPECIFICATIONS, AND COMPENSATION
In exchange for The hosting management Fee, as defined in Section 2 below, Extima will provide the following services (collectively, the “Services”):
(a) Publish the Website to the Web no later than seven (7) days after the Effective Date.
(b) Once published, adjust the DNS to make the Website available to Internet users at all times, except during scheduled maintenance downtimes or outages by the host.
(c) Storage of one thousand (1000) megabytes (MB) of disk space on Host’s server for the Website and any data files associated with the Website.
(d) Provide one thousand (5000) MB of bandwidth per month for the transfer of data.
(e) Provide ten (10) email (POP3) accounts.
(f) Check to make sure routine maintenance services or repairs reasonably necessary to maintain the operation of the Website on the Web are carried out by the host.
(g) Provide the Company with a password-protected account that allows the Company to update and change the content of the Website and to transfer data between the Website and Extima’s server remotely.
(h) Provide the Company with zero (0) hours of technical support relating to the Website each month.
(i) Provide the Company with zero (0) hours of content updates relating to the Website each month.
(j) Extima is not responsible for the creation, design, development, maintenance, or management of the Website.
Managed WordPressf/ E-Commerce Hosting Also Includes
(a) An additional ten (10) email (POP3) accounts.
(b) CDN Access for images and other site files.
(c) Back up the Website at least three (3) times each week in a commercially reasonable manner and store the back-up materials in a secure location suitable for such materials.
(d) Update the WordPress core files and approved plugins at least one (1) time each month when deemed safe to update. Some updates/patches may not be applied if not properly tested yet by 3rd party software vendor.
As compensation for the Services, the Company agrees to pay the amount select on the signup page (the “Hosting Fee”). The hosting Fee will not increase for a period of twelve (12) months from the date of this Agreement.
3. PAYMENT SCHEDULE.
The Company will pay Extima in accordance with the schedule select on the signup page