This Website Services Agreement (“Agreement”) is entered into between you (“Client”) and Merit, Inc. and its affiliates (“Developer”) for the purpose of webpage and/or website design, development and other similar services (collectively, “Services”). By registering, purchasing or using Developer’s Services, Client agrees to be bound by this Agreement and represents and warrants that Client has the authority to accept the terms of this Agreement and to sign this Agreement.
This site and its components are offered for informational purposes only; this site shall not be responsible or liable for the accuracy, usefulness, legal requirements or availability of any information transmitted or made available via the site and shall not be responsible or liable for any error or omissions in that information.
WHEREAS, Client and Developer agree that Developer is being engaged to perform the Services, which Services will be comparable to the functionality, design and layout as made available in the Developer’s online demo, which Client hereby accepts and agrees are representative of the Services. Client and Developer further agree to the following:
Client represents to Developer and unconditionally guarantees that any elements of text, graphics, photos, logos, designs, code, trademarks, or other artwork furnished by Client (“Client Materials”) to Developer for inclusion on the website are owned by Client or that Client has permission and a license from the rightful owner to use such Client Materials and will hold harmless, protect, and defend Developer and its subcontractors, assigns, successors, attorneys, and representatives from any claim, legal action, or lawsuit arising from the use of such materials furnished by the Client. Developer agrees that title, ownership, or interest in Client Materials is not being transferred to Developer and remains the property of Client. Developer agrees to make no claim of interest in Client Materials. Developer further agrees that Client owns and holds all intellectual and other property rights in Client Materials. Client hereby grants Developer a nonexclusive, royalty free, license to use the Client Materials for purpose of performing its rights and obligations under this Agreement, which license shall terminate on the expiration of termination of this Agreement.
All Content provided by Client to Developer shall be directly related to the Client’s business and shall not contain any improper, offensive or defamatory material or otherwise be used for any illegal purpose. Client agrees to maintain a level of professionalism with regard to the look, appearance, appropriateness of Content, and purpose of the website and Services. Client shall not use the website or Developer’s Services to distribute unsolicited bulk emails or “spam” of any sort. Developer shall have full discretion to remove any material which, in its sole discretion, is inappropriate for the agreed upon purposes of the website. Client will notify Developer within five (5) days of any unauthorized use or breach of security occurring on its account. Client warrants and represents that Client is not a competitor, directly or indirectly, with Developer, nor does Client provide any services similar to the Services provided by Developer hereunder. Client understands and agrees that the warranties and representations by Client set forth in this Section 3 are a material part of this Agreement; therefore, Developer may in its sole discretion terminate Services immediately, without liability to Client, in the event the content of the website or Client’s use is in breach of this Section 3.
EXCEPT AS REQUIRED BY LAW, DEVELOPER WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT AND THE SERVICES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, AND COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. DEVELOPER IS NOT RESPONSIBLE FOR ANY ACTIVITIES OCCURRING UNDER CLIENT’S ACCOUNT, INCLUDING BUT NOT LIMITED TO ANY LOSS RELATING TO ANY CONTENT CONTAINED ON THE WEBSITE OR LOSS RESULTING FROM ANY UNAUTHORIZED USE OF CLIENT’S PASSWORD OR ACCOUNT. UNDER NO CIRCUMSTANCES SHALL DEVELOPER’S COLLECTIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF (i) FIVE HUNDRED DOLLARS ($500) OR (ii) THE FEES PAID BY CLIENT UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE (12) MONTHS. CLIENT AGREES AND UNDERSTANDS THAT ALL DOCUMENTS, MATERIAL, AND DATA STORED ON THE WEB SERVER MAY BE LOST DUE TO MECHANICAL ISSUES, SOFTWARE ISSUES, OR INTENTIONAL ACTIONS OF THIRD PARTIES, AND MAY REMAIN UNRECOVERABLE THROUGH A NORMAL BACKUP PROCESS.
Client agrees that Developer owns and holds all intellectual and other property rights and copyrights to the assembled work of the source code, programs, scripts, photos, layout, documents, graphics, and text produced by Developer (“Developer’s Intellectual Property”). Client agrees that title, ownership, or interest in Developer’s Intellectual Property is not being transferred to Client and remains the property of Developer. Client agrees to make no claim of interest in Developer’s Intellectual Property. Developer shall own all right, title and interest, in and to the products and services delivered under this Agreement, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client. Developer grants to Client a limited, nonexclusive, nontransferable, nonsublicensable, and terminable right and license to use Developer Intellectual Property only for purposes of exercising rights and obligations under this Agreement, which license shall terminate on the expiration of termination of this Agreement
Client agrees that Developer may place a byline, link, and graphic on the bottom of Client’s web pages establishing and recognizing Developer’s Services. Client further agrees that Client’s website may be included in Developer’s portfolio as an example of Developer’s work and services. Developer reserves the right to use Client’s communications as “testimonials” in print and online mediums as authorized and agreed to separately and expressly by Client.
Client will pay Developer all fees, payable in U.S. Dollars, according to the prices and terms applicable to Client’s Services, including optional services as indicated on the invoice. Client shall pay a $35 fee for each returned check or credit card chargeback received. Upon notice to Client, Developer reserves the right to change the amount or basis for determining any fees or charges to Client at any time. Fees for Services shall be due and payable within fifteen (15) days of the initiation of Services. Automatic annual renewals and other recurring fees shall be due and payable within thirty (30) days of invoicing. If Client is past due on any payments, Developer reserves the right to suspend Services provided to Client until payment has been received in full, including any processing or late fees. If payments are more than thirty (30) days past due for any reason, Services may be terminated and all Content removed from Developer’s servers, with or without notice, and all the information contained within deleted permanently. Developer accepts no liability for Services, information, or Content that is suspended or deleted due to the non-payment of fees.
In the event of default due to Client’s non-payment of fees, Developer in its discretion shall also have other remedies available at law or equity. If Developer incurs any costs or expenses in connection with an event of default for non-payment, including enforcing any term or condition of this Agreement, Developer shall be entitled to collect all reasonable costs of collection and/or enforcement, including but not limited to, attorneys’ fees and expenses.
In the event Client is not satisfied for any reason with Services within the first thirty (30) days following completion of Client’s page, then all fees paid, will be refunded to Client upon notice to Developer specifically requesting cancellation and a refund and describing the reason for such termination. Upon receipt of the cancellation request, no further Services will be provided to Client, and Developer shall have no further responsibility under this Agreement.
Client may cancel Services at any time upon written notice to Developer. In addition to any other remedies available under this Agreement, Developer may cancel Services upon thirty (30) days written notice to Client. Upon cancellation of Services by Client, Client will not be entitled to a refund of fees paid, and any outstanding fees for Services provided by Developer to Client remain due and payable. Upon the effective date of cancellation or termination of this Agreement, any website developed for Client by Developer, along with any data, documents and other Content will be removed and unrecoverable. Notwithstanding cancellation for any reason by either party, any provisions in this Agreement that are intended to remain in effect following termination shall remain in effect following cancellation of Services.
Developer will make every effort to keep Client’s website operational. However, certain technical difficulties and other factors outside of Developer’s control may, from time to time, result in temporary service interruptions. Client agrees to hold harmless and not to hold Developer liable for any of the consequences of such interruptions beyond Developer’s control.
Developer, its owners, employees, successors, assigns, agents, and subcontractors agree that, except as directed by Client or government agency, it will not at any time during or after the term of this Agreement disclose any Confidential Information to any person. Likewise, Client agrees that it will not convey any Confidential Information obtained about or from Developer to another party. For purposes of this Agreement, the term “Confidential Information” includes: all information, data, reports, text, plans, prices, source code, software, applications, images, and other materials, in whatever form maintained and/or communicated, that has been or may hereafter be provided or shown between Client and Developer.
Regardless of whether or not separate, several, joint, or concurrent liability may be asserted against or imposed upon Developer and Client, Client agrees that it shall defend, indemnify, and hold Developer harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees associated with the development, access, and maintenance of Client’s website arising from client’s actions or omissions. This includes liabilities asserted against Developer and its subcontractors, agents, advertisers, attorneys, assigns, successors, clients, servants, members, owners, and employees that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, including its sponsors, agents, successors, clients, attorneys, board members, employees, or assigns.
Client also agrees to defend, indemnify, and hold harmless Developer against liabilities arising out of any injury to person or property caused by any products or services sold, endorsed, sponsored, or otherwise distributed over Client’s website. This includes, but is not limited to, infringing on the proprietary rights of a third party, copyright infringement, trademark, right of publicity, intellectual property, product liability, advertising liability and delivering any defective product or misinformation, which is detrimental to another person, organization, entity, or business.
Client represents and warrants that execution of this Agreement has been duly authorized by appropriate action taken in accordance with the parties’ respective articles of incorporation, by-laws, and all other governing law. The parties further represent and warrant that the representatives executing this Agreement on their behalf have all necessary power and authority to execute this Agreement on their behalf.
Any disputes in excess of $500 arising out of this Agreement shall first be submitted to binding arbitration as a mandatory condition precedent to any litigation. The arbitration shall take place before a mutually agreed upon Arbitrator in Hillsborough County in the State of Florida pursuant to the rules of the American Arbitration Association. The Arbitrator’s decision shall be final and binding, and any judgment made by an Arbitrator may be entered in any court having jurisdiction thereof.
Registrant agrees that the terms of this Agreement are severable. If any term or provision is declared invalid by a court of law, the remaining terms, sections, and provisions shall continue to be binding and in effect.
The terms and provisions contained in this Agreement constitute the sole and entire agreement between Developer and the Client. There are no other covenants, agreements, promises, terms, or provisions, written or oral, except as set forth herein. This Agreement shall be binding upon the parties hereto, their respective heirs, administrators, personal representatives, executors, successors, assigns, members, and employees. Any additional work not specified in this contract must be authorized by a change order acknowledged by Developer.
Any written notices to be given hereunder shall be deemed sufficiently given only when delivered by electronic mail with read receipt requested and confirmed or via US Postal Service certified mail, return receipt required to the Registered Agent of the parties involved.
This Agreement is entered into and shall be governed by and construed in accordance with the laws of the State of Florida. Jurisdiction for any lawsuits arising between the parties shall be exclusively in the state and federal courts of Hillsborough County. The prevailing party in any litigation between the parties will be entitled to recover all expenses of any nature incurred in any way relating to the litigation whether incurred presuit, on appeal, or post-judgment, including attorney and expert fees. Client waives the right to challenge the validity or enforceability of any Developer Intellectual Property in any court, administrative, or other proceeding. Client acknowledges that violation of this Agreement will cause material and irrevocable damage to Developer not fully compensable by money damages. If Client breaches promises made in this Agreement, Developer will have the right to a restraining order, injunction, specific performance, or other adequate relief from a court of competent jurisdiction, which rights will be cumulative and inclusive of any and all other rights or remedies available at law or in equity, including, without limitation, damages for diminution in value of Company’s business or loss of revenues arising, directly or indirectly, from my breach. Client waives any requirement for Developer to post a bond or other security in connection with an action by Developer seeking injunctive or other equitable relief to enforce this Agreement.
No oral modifications shall be effective, and no delay or failure on the part of either party to insist on compliance with any provision hereof shall constitute a waiver of such party’s right to enforce such provision.
This Agreement may be executed in two (2) or more counterparts, including electronic, facsimile and ‘pdf’ signature pages, each of which shall be deemed an original, but all of such taken together shall constitute only one agreement, superseding all prior understandings, oral or written; and it is expressly understood and agreed that this Agreement does not obligate either party to enter into any other or further agreements.
THE SERVICES ARE PROVIDED “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CLIENT NOR DEVELOPER MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY STORED DATA.