WEBSITE DEVELOPMENT, HOSTING, AND SUPPORT TERMS OF SERVICE AGREEMENT
PLEASE READ THIS WEBSITE DEVELOPMENT, HOSTING AND SUPPORT — TERMS OF SERVICE AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
This Website Development, Hosting and Support — Terms of Service Agreement (“Agreement”) is entered into by and between PixelNation, LLC and you. By purchasing any of the services of PixelNation, LLC, you are agreeing to be bound by the terms of this Agreement. Your acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to the conditions of this Agreement and that you agree to conduct this transaction by electronic means. The terms contained in this Agreement are in addition to any other separately-negotiated terms that you have entered into with PixelNation, LLC for services provided by PixelNation, LLC to you.
ELIGIBILITY AND AUTHORITY
In this document, the client will be known as “you” or the “Client” and PixelNation, LLC will be known as “us” or “we”.
If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms “you”, “your” or “Client” shall refer to such corporate entity. If you do not have the authority to bind such a corporate entity to the terms and conditions contained herein, and do so anyway, you will be held personally responsible for the fulfilling the terms and conditions of this Agreement, including any and/or all payment. We will not be liable for any loss or damage resulting from our reliance on any instruction, notice, document or communication reasonably believed by us to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, we reserve the right, but undertake no duty, to require additional authentication from you.
You are hiring us to design and develop a website and, if included, to provide a domain name, hosting and technical support for the specific pricing agreed to between PixelNation, LLC and you. You agree and warrant that you will provide contact information (which includes your full legal name, e-mail address and mailing address) to PixelNation, LLC that is complete and accurate, and you further agree to notify PixelNation, LLC within ten calendar days of a change to any such contact information.
Once your website is up and running, we will set up a user account that you will use to access and manage your site. We will provide you with login information to access this user account. Upon receipt of the login information, you agree to review the information contained within your user account to ensure that all information is accurate, current and complete, and you agree to keep your user account information accurate, current and complete. You are solely responsible for the activity that occurs on your account, whether authorized by you or not, and you must keep your account information secure, including without limitation your username and password. You must notify us immediately of any breach of security or unauthorized use of your account. We will not be liable for any loss you incur due to any unauthorized use of your account.
You agree to provide us with everything that we will need to complete the project for you — including text, images and other information — when we need it and in a format that is usable by us. You agree to review our work and provide feedback and approval in a timely manner.
You will need to supply us with the exact text copy that you want on the website. We are not responsible for writing any website text unless otherwise agreed.
Images, audio, videos and other media
You will supply us any logos, photographs or other images, audio, video or other media that you want on the site unless these are specifically included in our quote to you. You will supply these items in digital format. We will do a reasonable amount of adjusting to the images to fit the website if necessary. We can provide video editing services for an additional fee.
All the content for the site needs to be supplied in digital format. For example, photos need to be digital or scanned, not printed. Text needs to be in a file format, not printed. If needed, we can scan photographs or type text from printed documents for an additional fee. Nearly any standard digital format will be usable. If in doubt about your content’s format, please ask.
YOUR WEBSITE ADDRESS
Your website address (called a “domain name”) is arguably one of the most important aspects of your site. One domain name is included in your package. If you have multiple domain names, we can manage those additional names and point them to your site for an additional fee.
We will manage the hosting for your website. The hosting will be through a third-party service where we have contracted for the storage and bandwidth for your site. We will work with the provider to ensure that the service is reliable and that any website downtime is minimized. However, no website server is perfect and we can’t guarantee that there won’t be occasions when your website will not be available online. We are not liable for any such downtime that your website may experience, regardless of the cause. You acknowledge and agree that we have no control over the availability of your website on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto.
ACCEPTABLE USE/RULES OF CONDUCT
You agree that the following constitute a prohibited use of PixelNation, LLC services and that you will not engage in any of the following when utilizing our services:
- Use of the services to send spam and/or unsolicited bulk messages, hack into a third party’s computer network or otherwise interfere with another person’s use of the internet;
- Use of the services to violate the privacy rights of another or that constitutes libel, slander or defamation of another person or business;
- Use of the services that is illegal or encourages illegal activity;
- Use or content that promotes, depicts or otherwise relates to pornography, child pornography and/or any obscene or pornographic materials, terrorism, violence (in all forms), harassment and/or any other offensive speech or content;
PixelNation, LLC reserves the right to remove any item of content, suspend services and/or terminate your services for actions violating this Acceptable Use/Rules of Conduct policy.
LIMITATION OF LIABILITY
Protections are in place to guard against an attack on your website by a hacker or someone with malicious intent, but we cannot and do not guarantee that those protections will be 100% effective at preventing damage from an attack. If damages do occur as a result of such an attack, we will make a reasonable effort to restore the site to an undamaged state. Please be aware that while we keep regular backups of the website, you should always keep a separate copy of any text, photos, videos or other media that are posted on the website. We are not liable for any lost information or media as a result of damage to the website, regardless of the cause. Protections are also in place to protect website users’ data. However, in the case of a security breach it is possible that that data could be exposed. We are not liable to you or any third party for damages, including lost profits, lost savings or other incidental, consequential, special, or punitive damages arising from any exposure of personal, identifying, or financial data of users of the website, regardless of the cause.
THE LIABILITY OF PIXELNATION, LLC, IF ANY, AS A RESULT OF THIS AGREEMENT WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL ANNUAL FEE PAID BY THE CUSTOMER TO PIXELNATION, LLC FOR WEBSITE HOSTING. PIXELNATION, LLC WILL NOT BE LIABLE FOR DAMAGES THAT ARE INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF PIXELNATION, LLC HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SUCH DAMAGES INCLUDE, BUT MAY NOT BE LIMITED TO, LOSS OF PROFITS. THE REMEDIES EXPRESSED IN THE AGREEMENT ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE. ALL CLAIMS OF ANY TYPE BY CLIENT AGAINST PIXELNATION, LLC MUST BE BROUGHT WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION WILL BE FOREVER BARRED.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND shall survive any termination or expiration of this Agreement.
You agree to protect, defend, indemnify and hold harmless PixelNation, LLC and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, but not limited to, attorneys’ fees) imposed upon or incurred by PixelNation, LLC directly or indirectly arising from your violation of this Agreement, your use of services obtained through this site, and/or your violation of any third-party right (including without limitation any intellectual property or other proprietary right). The indemnification obligations set out here shall survive any termination or expiration of this Agreement or your use of the services offered by PixelNation, LLC.
You represent and warrant to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide us for inclusion in the web site are either owned by you or that you have permission to use them because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of such content and that you are not violating the rights of any third party.
Word of mouth is the best advertising. You agree that we may put a byline or a small image on the bottom of the website establishing design, development and/or hosting and support credit. We reserve the right to display and link to your completed project as part of our portfolio and to write or speak about the project on web sites and in magazine articles, books, videos, and elsewhere without reservation.
The publicly viewable parts of your website are owned by you, including the HTML, text, and images. You can download, preserve, or reuse these files at any time. You also own the domain name and we will transfer it to you at any time, provided your payment account with us is not past due.
You may pay for services by use of a credit card or via an electronic check from your business or personal checking account. PixelNation, LLC will take payment from the payment method you have on file with us at our current rates, which you acknowledge may be higher or lower than the rates for the original Agreement period. You also acknowledge that PixelNation, LLC may automatically debit your payment account, without further authorization from you, for any fees applicable to the services you have purchased from PixelNation, LLC.
You are responsible for payment of all fees for services agreed to between you and PixelNation, LLC. The fee is due in accordance with the terms of your agreement with PixelNation, LLC, in advance of the provision of services, not later than the renewal date of each month in which they are due. If the payment schedule is not met, interest will be charged at the rate of 1.5% per month or 18% per year on the overdue payments. All payments are non-refundable unless otherwise expressly noted, even if your services are suspended, terminated, or transferred prior to the end of the services term. We expressly reserve the right to change or modify our prices and fees at any time, and such changes or modifications shall be posted online at this Site and/or sent to you via the email address we have on file for your account and are effective without need for further notice to you. Changes or modifications in prices and fees shall be effective when the services in question come up for renewal.
Final website payment is due and ongoing hosting and support payments will begin on the day of website launch or 30 days from when we send you the preview of the website, whichever is sooner.
In addition, 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.
TERM, AUTOMATIC RENEWAL AND CANCELLATION
Except as otherwise provided in this Agreement, this Agreement shall be for an initial term of 12 months. After the initial 12-month term the applicable services shall be automatically renewed each month for additional one-month periods unless and until sooner terminated as set forth below. If you decide you must cancel before the conclusion of the initial 12-month term, a penalty will be charged that will be equal to six months of the monthly service fee (including payment plan charges, if applicable) for your site.
Except as otherwise provided herein, you or PixelNation, LLC may terminate this Agreement at any time for any reason, with or without cause, upon ten days’ notice. You will provide any such notice to PixelNation, LLC through any of the means of contact set forth in the Contact Information section below. We will provide any such notice to you through the account information that you have on file with us. In addition, PixelNation, LLC may suspend performance under or terminate this Agreement and cease hosting and support of your website immediately and without notice if it determines that you have breached any part of this Agreement, if you refuse payment for fees due or if your payment for PixelNation, LLC services is more than ten days overdue.
PROHIBITION ON ASSIGNMENT
You cannot transfer or assign this contract to any other person or organization without our permission.
It is understood and agreed by the parties that if any part, term, or provision of this Agreement is by the courts held to be illegal or in conflict with any law, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term, or provision held to be invalid.
VENUE AND CHOICE OF LAW
This Agreement is the current Agreement, superseding all previous like Website Development, Hosting and Support Agreements between the parties and will be governed and construed in accordance with the federal law of the United States or the state law of Iowa, as applicable, and venue shall be in Johnson County, Iowa.
If you have any questions about this Agreement, please contact us by email, phone or regular mail:
229 Haywood Drive
Iowa City, IA 52245
Phone: (816) 401-7063