Web Hosting & Management Agreement
This Web Hosting & Management Agreement ("Agreement") is made and entered into by and between Express Legal Sites LLC, located at 2269 S University Dr #1100, Davie, FL 33324 ("Provider") and the undersigned ("Client"). This Agreement will become effective on the date it is digitally signed by an authorized representative of Client ("Effective Date"). The purpose of this Agreement is to set forth the terms and conditions by which Provider will perform certain web hosting, website management, and related services for Client. In consideration of the mutual promises contained herein, and for other good and valuable consideration, Provider and Client agree as follows:
1. ENGAGEMENT OF PROVIDER
1.1. Description of Services. Subject to the terms and conditions of this Agreement, Provider will provide hosting and related services for Client in accordance with the terms of this Agreement. The services to be provided by Provider are described on Schedule A attached hereto and incorporated herein by reference (the "Services"). Client will cooperate with Provider's reasonable requests for information necessary to accomplish the tasks and objectives for completion of the Services.
1.2. Changes to Scope of Services. Provider will be responsible for delivering and performing only those Services identified on Schedule A. In the event Client wishes to make any modification to the Services, Client must submit a request via Provider's online account dashboard on Provider's website. Provider will determine the additional cost required to provide the services and submit to Client a written invoice via Provider's online account dashboard within ten (10) business days. Provider's invoice will include the rate and charges for the additional services, as well as the impact the proposed changes will have on the warranty provisions of this Agreement. Provider will begin performance of the additional services when full payment of the invoice is received by Provider.
1.3 Relationship of Parties. Provider is an independent contractor with respect to its relationship to Client. Neither Provider nor its employees or subcontractors are or shall be deemed for any purpose to be employees of Client. Nothing in this Agreement will be deemed to create an agency, partnership, or joint venture between the parties. Client will not be responsible to Provider or its employees for any payroll taxes related to performance of the Services. Neither party has authority to bind the other or incur any liability or otherwise act on behalf of the other party.
2. TERM AND TERMINATION
2.1 Term. The initial term of this Agreement will begin on the Effective Date and will continue in full force and effect for 1 year ("Initial Term"). Provider will begin the Services on the date of payment, and will continue until this Agreement is terminated. Upon expiration of the Initial Term, the Agreement will automatically renew and shall continue for successive one month periods, which shall automatically renew under the same terms and conditions set forth herein without further documentation being required, and unless and until either party terminates the Agreement in accordance with section 2 or section 5 herein (each a "Renewal Term").
2.2 Termination for Cause. During the Initial Term, this Agreement may not be terminated by Client, except as provided in Section 5 of this Agreement. If, during the Initial Term, Client fails to make a payment when due, Provider will send a payment default notice to Client via email. Client will have  days after the date the email notice is delivered to make full payment of all past due amounts. If Client fails to make the payment within such time period, Provider shall have the right to terminate this Agreement. In the event of termination of this Agreement under this section 2.2 during the Initial Term, Client will not be entitled to any Services after the date of termination, and Client agrees to pay Provider for any outstanding invoices due including payment for Services, whether such Services have been rendered or not, through the remainder of the Initial Term. Provider will be entitled to exercise any and all rights of collection and pursue any and all remedies now or hereafter available under applicable law.
2.3 Termination for Convenience. Either party may terminate this Agreement during a Renewal Term for any reason by providing written notice to the other party. Provider may terminate this Agreement during a Renewal Term at any time by giving at least thirty (30) days written notice by email to Client. Client may terminate this Agreement by requesting cancellation of the Services within seven (7) days of the start of a Renewal Term via Client's online account dashboard on Provider's website. Provider will honor the cancellation request and terminate this Agreement. Client will be entitled to Services until the end of the current Renewal Term. Client understands and agrees that any pre-payments will be forfeited and will not be refunded to Client.
2.4 Termination for Violation of Acceptable Use Policy. Provider has the right to investigate potential violations of the Acceptable Use Policy defined in Schedule C. If Provider determines that a breach has occurred, then Provider may, in its sole discretion:
Except in an emergency or as may otherwise be required by law, before undertaking the actions in paragraph 2.4, Provider will attempt to notify Client by any reasonably practical means under the circumstances, such as, without limitation, by telephone or e-mail. Client will promptly notify Provider of any event or circumstance related to this Agreement, Client's or any user's use of the Services, or content of which Client becomes aware, that could lead to a claim or demand against Provider, and Client will provide all relevant information relating to such event or circumstance to Provider at Provider's request.
3. FEES AND PAYMENT
In consideration of the Services, Client will pay to Provider fees in the amount determined in accordance with the payment schedule and terms set forth on Schedule B hereto. All fees in Schedule B will remain unchanged until this Agreement is no longer in effect. All payments made to Provider under this Agreement must be made in the name of Client and paid in United States currency. Before Provider will begin performance of the Services, Client must pay the initial payment amount stated on Schedule B. Except as expressly provided in this Agreement, payments are non-refundable.
All fees provided for in this Agreement exclude any direct or indirect federal, state, municipal or other governmental sales, excise, use or similar taxes, tariffs, or assessments of any nature (collectively, "Taxes") that may be applicable to performance of the Services, together with any penalties, interest or any additions thereto. Client is responsible for paying all Taxes associated with the Services under this Agreement other than taxes related to Provider's net income or property. Client agrees to indemnify, defend and hold harmless Provider from any Taxes or claims, causes of action, costs, and any other liabilities of any nature whatsoever related to such Taxes.
4. CLIENT OBLIGIATIONS
4.1 Client Data. Client is solely responsible for the security and content of all Client data stored in Provider's hosted environment and all such data is and at all times shall, remain Client's exclusive property ("Client Data").
4.2 Suitability. Client is solely responsible for: (i) determining the suitability of the Services in light of the type of Client Data stored by you or your end-user(s); (ii) the use of Provider's hosted environment tool and/or the Services by any of your employees or other user(s) who, either with or without Client's authorization, gain access to the hosted environment; and (iii) taking all commercially reasonable steps to mitigate the risks inherent in transmitting Client Data to and from and while stored on the hosted environment using the Services, including any Client Data loss or corruption.
4.3 Encryption. Client shall encrypt at the application level all data, considered sensitive data, which must be treated as confidential under state or federal law or under Client's contractual obligations to others. Sensitive data includes, but is not limited to, Social Security Numbers, financial account numbers, driver's license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated there under) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated there under).
4.4 Authentication. Client is responsible for selecting and securing the appropriate authentication procedures to allow access to Client's account.
4.5 Acceptable Use. Client shall only use or allow the use of the Services in compliance with Provider's Acceptable Use Policy.
4.6 Unauthorized Access. Client shall promptly notify Provider of any data breach or unauthorized access to Provider's network or servers and accounts. Client will take all commercially reasonable steps to cooperate with Provider's investigation and resolution of the reported breach or unauthorized access.
5. SATISFACTION GUARANTEE
Provider and Client have entered into a separate agreement (the "Website Design Agreement") whereby Provider has agreed to develop a website (the "Website") for Client. The Website Design Agreement includes a 100% Satisfaction Guarantee provision (the "Guarantee"), by which Client is entitled, under conditions defined in the Guarantee, to a refund of all payments rendered in connection with the Website Design Agreement.
In the event that Client terminates the Website Design Agreement under the Guarantee, Client may receive a full refund for payments rendered by Client to Provider under this Agreement by requesting cancellation of the Services via Client's online account dashboard on Provider's website. Provider will honor the cancellation request, terminate this Agreement, and Client will receive a full refund of all payments made to Provider for the Services under this Agreement. Client will not be entitled to any Services under this Agreement after the date of termination.
6. SERVER AVAILABILITY
6.1 Application (Web) Server.
In cases where two or more consecutive HTTP tests fail, the server downtime will be registered as the number of minutes between the first and the last failed tests. Downtime of less than 5 minutes in duration is not recorded. Provider calculates server uptime based on this type of server monitoring.
6.2 Mail Server.
(a) Availability. Provider guarantees a 99.9% monthly average of scheduled availability of its mail servers. Mail server availability is defined as the Client's ability to send (SMTP) and retrieve (POP3) e-mail via the particular mail server. Provider does not monitor individual mail accounts, but only monitors the server as a whole. Mail server unavailability caused by denial of service attacks, mail bombing, and other flooding techniques is not included in uptime calculations.
Mail delivery protocol (SMTP) is a "store-and-forward" type of protocol that does not guarantee immediate delivery of e-mail messages. In the case that the first delivery attempt is failed, the mail server will continue to attempt to deliver messages to the addressee according to a predefined schedule. In the case that the messages cannot be delivered for a period of time exceeding 48 to 72 hours, the messages are returned to the sender.
(b) Monitoring. To verify that the server is available, Provider will ping the SMTP and POP services (retrieve SMTP and POP headers) every 5 minutes with a 30-second threshold. If either service does not respond, the service is considered non-operational and is automatically restarted. If two or more consecutive SMTP or POP tests fail, the problem is immediately escalated to the Support Center.
In cases where two or more consecutive SMTP or POP tests fail, the server downtime will be registered as the number of minutes between the first and the last failed tests. Downtime of less than 5 minutes in duration is not recorded. Provider calculates server uptime based on this type of server monitoring.
6.3 Network Availability. Network availability is defined as Provider's network's ability to pass incoming and outgoing TCP/IP traffic. A server's unavailability caused by network unavailability is not included in server uptime. Interruptions of service due to problems on the backbone or on the Client's portion of the network are beyond the Provider's control and are not included in uptime calculations. Interruptions of service caused by denial of service or similar attacks are beyond the Provider's control and are not included in uptime calculations.
6.4 Scheduled Maintenance. To guarantee optimal performance of the servers, the Provider will perform maintenance on the servers on a routine basis. Such maintenance often requires taking Provider servers off-line. Provider reserves one hour of server unavailability per month for maintenance purposes. This server unavailability is not included in server uptime calculations. The maintenance typically is performed during off-peak hours. Provider provides Client with advance notice of maintenance whenever possible.
6.5 Other Exclusions. Downtimes due to any one or more of the following situations are excluded from the scope of this service level agreement: (i) Scheduled network maintenance; (ii) replacement or maintenance of the hardware in Client's dedicated server; (iii) software update required to address security or performance issues related to Client's dedicated server; or (iv) any act beyond the control of Provider, such as (a) act of God (e.g. earthquake, fire, hurricane); (b) strike or labor dispute; (c) act of war, riot, act of terror; (d) denial of service or other form of disabling attack by a third party against Client's dedicated server or major portion of Provider's network; or (e) legal take down order.
6.6 Penalty For Non-Compliance.
(a) Application Server Availability. Upon Client's notice to Provider, if availability of any server for the month is below the guaranteed level, Provider will refund to Client, according to the schedule below, a portion of the monthly fees charged for the month during which such loss of server availability occurred:
To receive the refund, Client must specifically request it during the month following the month for which the refund is requested. Client must provide all dates and times of server unavailability along with Client's account username. This information must be submitted to the Provider Support Department. Provider will compare information provided by Client to the server availability monitoring data that Provider maintains. A refund is issued if the unavailability warranting the refund is confirmed.
(b) Maximum Total Penalty. The total refund to Client for any Service shall not exceed 50% of the monthly fees charged to that Service during the month for which the refund is to be issued.
(c) Credits may not be issued if Client account is past due, suspended, or pending suspension.
7.1 Data Storage Capacity. Each account is allotted up to 1 gigabyte (1,024 megabytes) of storage capacity on the Provider's servers. This storage size can be increased upon request via support ticket system. The servers may stop accepting, processing, or delivering data when the purchased limit is reached, thus causing server unavailability or data loss. Providershall not be held responsible for such unavailability or data losses.
7.3 Data Integrity. Provider employs sophisticated RAID techniques to ensure the integrity of the data on its servers, and the data is written to two disks simultaneously to prevent data loss in the event of hardware failure. Provider reserves the right to place accounts on non-RAID servers as necessary. Automated daily server backups, with 7 daily snapshots and 1 monthly snapshot maintained. Reasonable assistance downloading, extracting, and restoring backups. Web server raw log files are not included in the backups and cannot be recovered during server restoration.
Upon Client's request, or in the event of data corruption, hardware failure or other data loss, the Provider will make efforts to restore lost or corrupted data from server backups. Providershall not be responsible for lost data or site content. Provider recommends that Client maintain a local copy of all critical data uploaded or stored on Provider's servers.
7.4 Data Retention. PROVIDER SHALL NOT RETAIN ANY OF CLIENT'S DATA AFTER ACCOUNT TERMINATION. ALL DATA IS DELETED (A) FROM THE SERVERS AT THE TIME THE ACCOUNT IS TERMINATED AND (B) FROM BACK-UPS DURING SCHEDULED BACK-UP ROTATION. PROVIDER SHALL NOT RESTORE, ARCHIVE, OR SEND OUT ANY DATA PERTAINING TO TERMINATED ACCOUNTS.
The Provider provides Client with technical support on setup of Client's account on one or more of the Provider's servers, access, and other server related issues to the primary technical contact free of charge. Provider does not provide support for web applications, third party software, scripts, or components from third parties or developed by Client.
Client is provided with certain online tools, and the Provider expects Client to use these tools to perform all available account and server management tasks.
These tools, together with server management documentation and help, are available online at the support section of the Provider's website. If Client experiences difficulty using these tools, the Provider's technical support personnel will help Client learn how to use these tools. However, the Provider's technical support personnel shall not be expected to perform for Client the tasks that can be done through the available tools.
9. SSL CERTIFICATE
Provider shall obtain and install a Secure Socket Layer (SSL) certificate on Client's server, allowing for encrypted HTTPS and email communication. The certificate will use a modern cipher suite and shall be recognized by all major web browser and email client software. Client understands that this certificate is not transferable to another web host.
10. DNS MANAGEMENT
Provider shall modify the DNS zone records records for the domain name associated with the Service to configure Domain Keys Identified Mail (DKIM), Sender Policy Framework (SPF), and reverse DNS (rDNS). Provider shall also assist Client in updating nameserver records at Client's domain registrar.
11.1 Protection. As used in this Agreement, "Confidential Information" refers to a party's own proprietary information, which includes trade secrets, know how, and other non-public business information. From time to time, Client may share Client's Confidential Information with Provider in connection with the Services. Provider agrees that at all times during or subsequent to the performance of the Services, Provider will keep confidential and not use, divulge, disclose, or communicate Client's Confidential Information, except to the extent necessary to perform the Services. It is understood and agreed that Client does not wish to receive from Provider any Confidential Information of Provider or of any third party. Provider represents that it will not share Provider's Confidential Information with Client.
11.2 Exceptions. Provider's obligations with respect to Confidential Information will not apply when Provider can show that: (i) it was in the public domain when it was communicated to Provider; (ii) it entered the public domain subsequent to the time it was communicated to Provider through no fault of Provider; or (iii) it was in Provider's possession free of any obligation of confidence at the time it was communicated by Client.
11.3 Disposition. Upon the termination of this Agreement, Provider will securely dispose of all Confidential Information of Client in Provider's possession and Provider will certify in writing such destruction to Client upon request.
12. WARRANTIES AND DISCLAIMER
12.1 Client Warranties. Client represents and warrants to the Provider that Client owns (or has a legal license to use) all photos, text, artwork, graphics, designs, trademarks, and other materials provided by the Client for inclusion on the Provider's servers, and that Client has obtained all waivers, authorizations, and other documentation that may be appropriate to evidence such ownership. Client will indemnify and hold harmless Provider from all losses and claims, including attorney fees and legal expenses, which may result by reason of claims by third parties related to such materials.
12.2 Intellectual Property Rights. Provider owns and shall continue to own all proprietary rights in all code and content that Provider supplies as part of the Services. Client owns and shall continue to own all proprietary rights in the Website and all software code and content relating to the Website.
12.3 Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT, PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE OR SERVICES WILL MEET ALL OF CLIENT'S REQUIREMENTS OR EXPECTATIONS OR THAT ALL ERRORS OR DEFICIENCIES WILL BE CORRECTED. PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES WILL GUARANTEE OR ENSURE COMPLIANCE WITH ANY LAW, REGULATION OR LEGAL REQUIREMENT. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND PROVIDER DOES NOT MAKE ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, FREE FROM VIRUSES, ERROR-FREE, OR SECURE. CLIENT'S USE OF THE SERVICES IS AT ITS OWN RISK.
12.4 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT OR LOST BUSINESS, COSTS OF DELAY OR FAILURE OF DELIVERY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
12.5 Attorney's Fees and Costs. In the event of a dispute arising under this Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, including attorneys' fees and costs incurred in litigating entitlement to attorneys' fees and costs, as well as in determining or quantifying the amount of recoverable attorneys' fees and costs. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable.
13. GENERAL CONDITIONS
13.1 Assignment. This Agreement is not assignable, in whole or in part, by either party without the prior written consent of the other party. Any attempt to make such assignment will be void. If Client sells its firm to a third party, such consent by Provider will not be unreasonably withheld.
13.2 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, each such provision will be modified to the minimum extent necessary to make it valid and enforceable, or if it cannot be modified, then such provision will be severed and the remaining portions of this Agreement will remain in full force and effect and construed so as to best effectuate the original intent of the parties and purpose of this Agreement.
13.3 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. This Agreement may not be amended, except by a writing signed by both parties.
13.4 Governing Law. This Agreement is governed by the laws of the United States and construed in accordance with the laws of the State of Florida, without regard to conflict of laws rules. Venue will be laid in a court of competent jurisdiction in the state of Florida and both parties expressly consent to jurisdiction of such courts. If any dispute arises between the parties concerning this Agreement, the prevailing party will be entitled to recover from the non-prevailing party reasonable attorneys' fees and costs incurred in connection with such dispute.
13.5 Excusable Delay. Provider will not be responsible for delays or failures in performance resulting from acts beyond the control of Provider, including, without limitation, acts of God, strikes or other labor disputes, riots, acts of terror, epidemics, fires, earthquakes, hurricanes, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems, malicious code, denial of service threats, or inability to obtain energy; provided however, that Provider will promptly resume performance of the Services as soon as reasonably practical.
13.6 Delay Due To Domain Setup. To utilize the Services, Client must register an Internet domain name (the "Domain"), and configure the Domain's nameserver records to point to the nameservers specified by Provider. While Provider will make every attempt to assist Client with this process, Client is not entitled to any refund in the event that the activation of the Services is delayed due to Client's failure to timely register or configure the Domain to be used in conjunction with the Services.
13.7 Counterparts/Electronic Signatures. Provider and Client may execute this Agreement in multiple counterparts, each of which constitutes an original as against the party that signed it, and all of which together constitute one agreement. The signatures of the parties need not appear on the same counterpart. The parties will both execute this Agreement electronically and Client will affix the signature of its authorized representative electronically to this Agreement by performing the electronic signature method provided in connection with this Agreement ("E-Signature"). Client agrees that such E-Signature is the legal equivalent to a hand-written signature on this Agreement, which shall have the same binding legal effect as if Client had personally signed by putting pen to paper. Client understands and agrees that Provider will rely on Client's E-Signature to process and effect this Agreement.
PROVIDER: Express Legal Sites LLC
By: #Authorized Representative#, #Title#
Client has caused this Agreement to be executed by its duly authorized
representative beginning on the Effective Date.
Client Business Name: #Sample Firm#
Client Street Address: #123 Main St, Miami, FL#
By: #John Doe#, #Title#
Digitally signed: #Effective Date# at #Time# (Eastern Standard Time)
IP Address: #123.456.789.123#
User ID Hash: #abcd#
Description Of Services
Website hosting and management, including:
$49.00 due immediately upon execution of the Agreement on the Effective Date, and $49.00 due and payable on the 9th day of each month. Invoices shall be automatically billed to Client's payment method on file on the due date.
Acceptable Use Policy
1. ACCEPTABLE USE
1.1 Client shall use the Services in compliance with all applicable state, federal, or international laws, statutes or codes, specifically including data protection and privacy laws, as well as laws relating to unsolicited commercial electronic messages.
1.2 Client is responsible for all acts and omissions of its users in connection with receipt or use of the Services. Client agrees, and will ensure its users agree, to act responsibly and not use the Services for any illegal or unauthorized purpose including, but not limited to: