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Agreement ("Agreement" is entered into between smc technologies,
Inc., 2020 Pennsylvania Ave, NW, Suite #146, Washington, DC 20020, USA ("Service
Provider") and you ("Customer"). This applies to all of the
featured applications hosted by smc technologies. Currently, they are smc
WebStore, smc WebStoreLite, smc WebStoreExpress, smc HomeSite, smc
WebStore2Go, smc WebMall, smc WebLinks, smc StoreBuilder. |
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1. APPLICATION HOSTING SERVICES
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1.1. Subject to these terms and conditions and in exchange for a
periodic fee, Service Provider will provide to Customer application
hosting services for smc technologies' smc WebStore, smc WebStoreLite, smc
WebStoreExpress, smc HomeSite, smc WebStore2Go, smc WebMall or smc
StoreBuilder. ("the Application").
1.2. For the term of this agreement Customer will have continuous
access to Application via Internet connectivity to compatible Web
browsers, subject to the disclaimer provisions in section 7 - Disclaimers.
1.3. The Application will be served from Service Provider's servers
co-located at a secure Internet Service Provider (ISP) facility, of
Service Provider's choosing. (The current choice is RackShack.)
1.4. As part of the service package, Service Provider will make
available for the Customer at least 250 megabytes of storage space on the
hosting server for the purpose of operating the application and storing
Customer's data and associated files. Customer will be allowed to utilize
up to this limit. Continual usage of space far in excess of this limit
will require additional fee to be negotiated as required. The Customer can
purchase additional database space by contacting Service Provider in
writing (5) business days before the database increase is needed.
1.5. As part of the service package, Service Provider will provide
required initial account setup and administration.
1.6. As part of the service package, Service Provider will provide data
backup services that will include weekly full backup onto the local hard
drive.
1.7. As part of the service package, Service Provider will provide free
technical support for the term of this agreement.
1.8. At the Customer's request and in exchange for an additional fee,
Service Provider will customize the standard Application according to
Customer's written specification in order to make the modified Application
available to the Customer under the terms of this Agreement.
1.9. At the Customer's request and in exchange for an additional
service charge, Service Provider will provide custom data backup services.
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2. FEES AND BILLING
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2.1. Payment of Fees. Customer will pay all fees due.
2.2. Hosting Service - The fees for the hosting service are listed in
the table below:
2.3. Billing and Payment Terms - Customer will be billed monthly in
advance of the provision of Application Hosting Services, and payment of
such fees will be due in advance on the first (1st) of the
month. (Payments will be pro-rated when the Customer signs up for the
service during the middle of the month.) All payments will be made in U.S.
dollars. Non-payment within ten (30 days) will result in the deactivation
of the Customer account.
2.4. Taxes - All payments required by this Agreement are exclusive of
all national, state, municipal or other governmental excise, sales,
value-added, use, personal property, and occupational taxes, excises,
withholding taxes and obligations and other levies now in force or enacted
in the future, all of which Customer will be responsible for and will pay
in full.
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3. TERM AND TERMINATION
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3.1. Term. The Initial Term ("Initial Term") of this
Agreement is for one year from the services activation date
("Activation Date").
3.2. Renewal. After the Initial Term, the contract shall automatically
renew on a month-to-month basis. During renewal, prices are subject to
change.
3.3. Termination. The following are the only means by which this
Agreement may be terminated:
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(a) Customer may terminate services at the end of the current monthly
billing cycle by providing written notice at least five (5) days prior to
the end of the month. Termination notice must be sent via email to billing@smctechnologies.com.
(b) Material Breach by Service Provider - In the event that Service
Provider is in default of this Agreement, Customer may terminate this
Agreement by giving Service Provider ten (10) days prior written notice
thereof; provided, however, that this Agreement shall not terminate at the
end of said ten (10) days notice period if Service Provider has cured the
breach of which it has been notified prior to the expiration of said ten
(10) days. If Agreement is terminated by cause of material breach by
Service Provider, any setup or customization fees paid by the Customer are
to be refunded with the amount prorated to the date of default.
(c) Material Breach by Customer. In the event Customer is in default of
this Agreement Service Provider may terminate this Agreement by giving
Customer ten (10) days prior written notice thereof; provided however,
that this Agreement shall not terminate at the end of said ten (10) days
notice period if Customer has cured the breach of which it has been
notified prior to the expiration of said ten (10) days. In the event
Customer is in default of paragraph 4 Customer Obligations or paragraph
6.1 Warranties by Customer, Service Provider may immediately terminate the
application hosting service and this agreement any one-time fees for setup
or customization become non-refundable.
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3.4. Obligations on Termination. Following Services activation, in the
event of a termination by either party, Customer shall be obligated for
any fees and charges incurred prior to termination. In the event of a
termination during the Initial Term, Customer shall be obligated to pay in
addition to the fees mentioned above: (a) an amount equal to the monthly
recurring service charge multiplied by the number of months remaining on
the Initial Term. Termination charges are billed in one lump sum and shall
be payable immediately on termination.
3.5. No Liability for Termination. Neither party will be liable to the
other for any termination or expiration of this Agreement in accordance
with its terms.
3.6. Effect of Termination. Upon the expiration date or termination of
this Agreement: (a) Service Provider will immediately cease providing to
the Customer the application hosting service; (b) any and all payment
obligations of Customer made under this Agreement will become due
immediately; (c) after such expiration or termination, if requested by the
Customer, Service Provider will back up the Customer's database and ship
it to the Customer's address of record via common parcel service. (d)
Service Provider will keep all Customer data for three months (90 days)
after expiration or termination of this Agreement after that time all
Customer data will be permanently and completely deleted.
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4. CUSTOMER'S OBLIGATIONS
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4.1. Compliance with Law and Rules and Regulations. Customer agrees
that Customer will comply at all times with all applicable laws and
regulations. Customer acknowledges that Service Provider exercises no
control whatsoever over the content of the information passing through it
servers, and that it is the sole responsibility of the Customer to ensure
that the information it transmits and receives complies with all
applicable laws and regulations. |
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5. CONFIDENTIAL INFORMATION
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5.1. Confidential Information. Each party acknowledges that it will
have access to certain confidential information of the other party
concerning the other party's business, plans, customers, technology, and
products. Each party agrees that it will not use in any way, for its own
account or the account of any third party, except as expressly permitted
by this Agreement, nor disclose to any third party (except as required by
law or to that party's attorneys, accountants and other advisors as
reasonably necessary), any of the other party's Confidential Information
and will take reasonable precautions to protect the confidentiality of
such information.
5.2. Exceptions. Information will not be deemed Confidential Information
hereunder if such information: (i) is known to the receiving party prior
to receipt from the disclosing party directly or indirectly from a source
other than one having an obligation of confidentiality to the disclosing
party; (ii) becomes known (independently of disclosure by the disclosing
party) to the receiving party directly or indirectly from a source other
than one having an obligation of confidentiality to the disclosing party;
(iii) becomes publicly know or otherwise ceases to be secret or
confidential, except through a breach of this Agreement by the receiving
party; or (iv) is independently developed by the receiving party.
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6. REPRESENTATIONS AND WARRANTIES
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6.1. Warranties by Customer
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(a) Customer Business. Customer represents and warrants that Customer's
data and information used by Customer in connection with this agreement
does not as of the Installation Date, and will not during the term of this
Agreement, operate in any manner that would violate any applicable law or
regulation.
(b) Breach of Warranties. In the event of any breach, or reasonably
anticipated breach, of any of the foregoing warranties, in addition to any
other remedies available at law or in equity, Service Provider will have
the right immediately, in Service Provider's sole discretion, to suspend
any related Application Hosting Services if deemed reasonably necessary by
Service Provider to prevent any harm to Service Provider and its business.
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7. WARRANTY DISCLAIMER
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7.1. No Warranties. Service Provider does not make any representations
or warranties of any kind, whether, statutory, express or implied,
regarding the Application Hosting Service, or any services provided in
connection therewith, including any implied warranty of merchantability,
noninfringement or fitness for a particular purpose or implied warranties
arising from a course of dealing or course of performance. Service
Provider expressly disclaims any representation or warranty that the
Service Provider service will be error free, secure or uninterrupted. No
oral advice or written information given by Service Provider, its
employees or the like shall create a warranty; nor shall Customer rely on
any such information or advice.
7.2. Access and Availability Disclaimer. As a matter of policy, Service
Provider co-locates the Application service at a top-tier contracted
commercial ISP facility, of Service Provider's choosing, that provides
nominal 24x7 network access, security, power redundancy, hazard prevention
and emergency response. Since no such contracted facility guarantees 100
percent uptime, Service Provider cannot and will not guarantee continuous
uninterrupted access to and availability of the Application.
7.3. Compatibility Service Provider does not represent or warrant that
the Application is compatible with or will display on all versions of all
Web browsers.
7.4. Service Provider does not represent or warrant that Customer data
can not and will not be accessed by unauthorized users either external or
internal to the Customer organization.
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8. LIMITATION OF LIABILITY
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8.1. Limitation of Liability. Under no circumstances, including
negligence, shall Service Provider or anyone else involved in
administering distributing or providing the Application Hosting Service or
any services provided in connection therewith, be liable for any indirect,
incidental, special or consequential damages, including, without
limitation, loss of revenues or loss of profits, or damages that result
from the use of or inability to use the Application Hosting Service,
mistakes, omissions, interruptions, deletion of files or email, errors,
defects, viruses, delays in operation or transmission, failure of
performance, theft, destruction or unauthorized access to Service Provider
records, programs or services, even if Service Provider has been advised
of the possibility of such losses.
8.2. Indemnity. Upon written or electronic request of Service Provider,
Customer agrees to defend, indemnify and hold harmless Service Provider,
its officers, directors, employees, agents and licensees, from any claims,
liabilities, losses, damages and expenses, including reasonable attorney
fees, arising out of or relating to Customer's use of the Application
Hosting Service.
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9. APPLICATION MAINTENANCE AND VERSION UPGRADES
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9.1. Customer acknowledges that Application upgrades, enhancements and
bug fixes may be required periodically and that the need for such
enhancements or fixes is not indicative of defects in the service
provided.
9.2. Any version upgrades, or enhancements or bug fixes incorporated
into the Application will be provided at no additional charge to the
Customer.
9.3. Service Provider will provide Customer with 5 days advanced notice
of planned upgrade of the hosted Application.
9.4. Service Provider reserves the right to modify or replace the
hosted Application at any time with a newer version of the Application in
order to incorporate any or all upgrades, enhancements and bug fixes.
9.5. Service Provider is not obligated to provide or incorporate into
the Application, upgrades, enhancements or bug fixes unless failure to do
so infringes upon the execution of Service Provider's other material
obligations within this Agreement.
9.6. It is the intention of Service Provider to maintain backwards
compatibility with existing databases and will make reasonable efforts to
do so. This intention and effort notwithstanding, Service Provider does
not guarantee that all application features and functions will continue to
be available, or that backwards compatibility of databases will be
maintained.
9.7. In the event that backwards compatibility to databases can not be
maintained during upgrade or application maintenance, Service Provider
will at Customers request, provide a means for migrating data forward.
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10. INTELLECTUAL PROPERTY
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10.1. Service contract only. This is an agreement to provide services
only, for a limited time only, and in no way establishes an obligation
upon the Service Provider to sell the Application or any modifications to
the Application to the Customer or to make the Application available to
the Customer beyond the term of the Agreement.
10.2. The Application is the property of Service Provider and Service
Provider retains all intellectual property rights to the Application, or
any modifications thereof, or enhancements created as part of
customization services performed on behalf of the Customer.
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11. GENERAL PROVISIONS
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11.1. Assignment, and Resale. Customer may not assign this Agreement
without prior written consent of Service Provider, and any such attempted
assignment shall be null and void. Customer may not resell the Service
Provider service or any portion thereof.
11.2. Force Majeure. Neither party shall be liable in any amount for
failure to perform any obligation under this Agreement if such failure is
caused by the occurrence of any unforeseen contingency beyond the
reasonable control of such party including without limitation loss of
electrical power, acts of war, acts of God, earthquake, flood, fire,
embargo, riot, explosions, sabotage, labor shortage or dispute,
governmental act or failure of the Internet.
11.3. Service Provider is not responsible for loss of data, loss of
time, opportunity, or access.
11.4. If any provision of this Agreement is held to be unenforceable
for any reason, such provision shall be reformed only to the extent
necessary to make it enforceable and the remainder of this Agreement shall
nonetheless remain in full force and effect.
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12. RESOLUTION OF DISPUTES
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12.1. Any dispute or controversy arising out of or from this contract
shall be resolved by arbitration in the English language before a single
arbitrator in the Washington, District of Columbia, according to the
Commercial Rules of Arbitration of the American Arbitration Association.
The arbitrator shall apply the internal laws of the District of Columbia
without regard to that state's conflicts of law rules or the United
Nations Convention on the International Sale of Goods which is
specifically excluded. Any court of competent jurisdiction may render
judgment on, or otherwise enforce, the award so rendered.
12.2. In the event there is a lawsuit where Service Provider prevails,
Customer pays any and all court and attorney fees incurred.
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Questions?
If you have any questions or comments concerning our Pricing Policy,
please contact us at billing@smctechnologies.com.
Click here for additional contact information.
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