Last Revised July 1, 2004
This AGREEMENT (the Agreement) is an agreement between Phillips Data, Inc. and the Client (each being referred to individually as a Party and collectively as the Parties) set forth in the related order form incorporated herein and applies to the purchase of all services (collectively, the Services) ordered by Client.
WHEREAS, Phillips Data, Inc. is in the business of offering Internet services relating to, among other things, hosting of sites on the World Wide Web portion of the Internet and is willing to provide services to Client on the terms and subject to the conditions set forth below; and
WHEREAS, Client desires to engage Phillips Data, Inc., and Phillips Data, Inc. desires to be engaged by Client, to provide such Internet services on the terms and subject to the conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, Phillips Data, Inc. and Client (the "Parties") hereby agree as follows:
1. Services
1.1 Hosting Services
Phillips Data, Inc. agrees to provide Client with services for hosting of a site on the World Wide Web portion of the Internet (the "Web Site") as set forth or described in Schedule A hereto (the "Hosting Services"). Phillips Data, Inc. shall provide the Hosting Services so that the Web Site is accessible to third parties via the World Wide Web portion of the Internet as specified herein. Except as expressly provided herein, Client agrees that Phillips Data, Inc. is responsible only for providing the Hosting Services, and Phillips Data, Inc. is not responsible for providing any services or performing any tasks not specifically set forth in Schedule A. At the time of execution of this Agreement, to the extent that Client wishes to receive from Phillips Data, Inc., and Phillips Data, Inc. wishes to provide to Client, services other than the Hosting Services such as, by way of example only, services relating to internet access, website design, programming, or outsourcing, (collectively, the "Additional Services"), such Additional Services and the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties (the "Services Addendum"), and the Services Addendum shall be incorporated into, and become a part of this Agreement. (The Hosting Services and the Additional Services will hereinafter be referred to collectively as the "Services").
1.2 Content
Client shall provide to Phillips Data, Inc. all materials comprising the Web Site, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text (the "Client Content"), including, but not limited to, HTML format. The Client Content shall be properly adapted and translated by Client for posting to the Phillips Data, Inc. hosting servers (the "Phillips Data, Inc. Hosting Servers") so that the Web Site may be accessed via the Internet.
1.3 Availability of Web Site
Unless otherwise indicated on Schedule A hereto, the Web Site shall be accessible to third parties via the World Wide Web portion of the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Hosting Services due to causes beyond the control of Phillips Data, Inc. or which are not reasonably foreseeable by Phillips Data, Inc., including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. In the event of any loss or interruption of Hosting Services, Client's sole and exclusive remedy and Phillips Data, Inc.'s sole and exclusive liability for any loss or interruption of Hosting Services shall be as follows: for loss or interruption of Hosting Services which is due to (i) causes other than scheduled maintenance and required repairs, or (ii) causes beyond the control of Phillips Data, Inc., or (iii) causes which are not reasonably foreseeable by Phillips Data, Inc., including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, which loss or interruption of Hosting Services exceeds a continual period of twenty-four (24) hours, Client shall receive a credit against future Hosting Services equal to a pro rata portion of Hosting Services fees for the period of downtime.
1.4 Domain Name Registration
As part of the initial Hosting Services, Client shall provide Phillips Data, Inc. with a registered domain name, or Phillips Data, Inc. shall register any domain name(s) selected by Client provided that such domain name is available for registration and does not violate any InterNIC or other registration services' policies, or any law or regulation. Client agrees to promptly reimburse Phillips Data, Inc. any fees paid by Phillips Data, Inc. to InterNIC or other registration services with respect to the registration and maintenance of such domain name.
1.5 Domain Name Disputes
In the event of any dispute or cause of action arising out of or related to Client's domain name used in connection with the Web Site, upon Client's request Phillips Data, Inc. will attempt to register with InterNIC an alternative domain name chosen by Client and attempt to make the Web Site available over the Internet under such alternative name for an additional fee to be charged to Client pursuant to the fee and payment schedule set forth in Schedule B hereto.
1.6 Additional Storage and Transfer
In the event that the Web Site requires storage and transfer on the Phillips Data, Inc. Server which exceeds the amount of storage included in the Hosting Services, Client may, upon thirty (30) days written notice to Phillips Data, Inc., request that Phillips Data, Inc. (a) upgrade the level of Hosting Services, or (b) acquire additional incremental storage to be included in the Hosting Services, on a time and materials basis and in accordance with the fee and payment schedule in Schedule B hereto. Phillips Data, Inc. shall review all such requests and determine, in consultation with Client, whether it can reasonably comply with such requests and, if so, Phillips Data, Inc. shall propose a procedure and budget for complying with such request.
2. License and Proprietary Rights
2.1 Proprietary Rights of Client
As between Client and Phillips Data, Inc., Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Except as provided in this Section 2.1, nothing in this Agreement shall be construed to grant Phillips Data, Inc. any ownership right in, or license to, the Client Content provided by Client to Phillips Data, Inc. Client hereby grants to Phillips Data, Inc. a non-exclusive, worldwide, royalty-free license for the Initial Term and any Renewal Term (as those terms are hereinafter defined) to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Client Content as necessary to render the Services to Client under this Agreement.
2.2 Proprietary Rights of Phillips Data, Inc.
All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Phillips Data, Inc. or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by Phillips Data, Inc. to provide the Services to Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively "Phillips Data, Inc. Materials") shall remain the sole and exclusive property of Phillips Data, Inc. or its suppliers. To the extent, if any, that ownership of the Phillips Data, Inc. Materials does not automatically vest in Phillips Data, Inc. by virtue of this Agreement or otherwise, Client hereby transfers and assigns to Phillips Data, Inc. all rights, title and interest which Client may have in and to the Phillips Data, Inc. Materials. Client acknowledges and agrees that Phillips Data, Inc. is in the business of designing and hosting Web sites, and that Phillips Data, Inc. shall have the right to provide to third parties services which are the same or similar to the Hosting Services, and to use or otherwise exploit any Phillips Data, Inc. Materials in providing such services.
2.3 Confidentiality
Each Party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other Party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data ("Confidential Information"). Confidential Information shall not include information that the receiving Party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party, (b) was known to the receiving Party as of the time of its disclosure, (c) is independently developed by the receiving Party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each Party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each Party and its employees shall survive the expiration or termination of this Agreement.
3. Client Content
3.1 Client Content
Client assumes sole responsibility for (a) acquiring any authorization(s) necessary for hypertext links to third party web sites, (b) the accuracy of materials on the Web Site, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (c) ensuring that the Client Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Phillips Data, Inc. reserves the right, in its sole discretion, to suspend or remove any hosting account which, in Phillips Data, Inc.'s sole reasonable discretion, may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes Phillips Data, Inc. to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on Phillips Data, Inc. to monitor or exert editorial control over the Web Site.
3.2 Limitations on Client Content
Client shall place and cause to be placed on the Web Site Client Content that does not contain any content or materials which are obscene, threatening, malicious, which infringe on or violate any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right, or which otherwise exposes Phillips Data, Inc. to civil or criminal liability. Any such materials placed on the Web Site which do not satisfy the foregoing requirements shall be deemed to be a material breach of this Agreement.
4. Fees and Taxes
4.1 Hosting Services Fees
Client shall pay Phillips Data, Inc. all fees for the Hosting Services in accordance with the applicable fee and payment schedule set forth in Schedule B hereto. Phillips Data, Inc. expressly reserves the right to change its rates charged hereunder for the Services during any Renewal Term (as defined herein), unless such service has been advertised as having a Price Freeze on the Phillips Data, Inc. web site at http://www.phillipsdata.com.
4.2 Additional Services Fees
Unless otherwise agreed in writing, Client shall pay to Phillips Data, Inc. all fees for Additional Services on a time and materials basis as invoiced by Phillips Data, Inc.
4.3 Out-of-Pocket Expenses
Client shall pay, or promptly reimburse Phillips Data, Inc. for, any out-of-pocket expenses, including, without limitation, travel and travel-related expenses, incurred by Phillips Data, Inc. in connection with the performance of the Services.
4.4 Late Payment
Client shall pay to Phillips Data, Inc. all fees not specifically itemized on Schedule B within twenty-six (26) days of the date of the applicable Phillips Data, Inc. invoice. If Client fails to pay any fees within fifteen (15) days from the date due according to Schedule B, or within fourty-one (41) days from the date of an invoice, where applicable, late charges of one and one-half percent (1.5%) per month or the maximum allowable under applicable law shall also become payable by Client to Phillips Data, Inc. In addition, failure of Client to fully pay any fees within thirty (30) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by Phillips Data, Inc., and will be sufficient cause for immediate termination of this Agreement by Phillips Data, Inc. Any such suspension does not relieve Client from paying past due fees plus interest and in the event of collection enforcement, Client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys' fees, court costs and collection agency fees.
4.5 Taxes
Client shall pay or reimburse Phillips Data, Inc. for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Phillips Data, Inc. under this Agreement; excluding, however, income taxes on profits which may be levied against Phillips Data, Inc.
5. Warranties
5.1 Phillips Data, Inc. Warranties
Phillips Data, Inc. represents and warrants that (a) Phillips Data, Inc. has the power and authority to enter into and perform its obligations under this Agreement, and (b) Phillips Data, Inc.'s Services under this Agreement shall be performed in a workmanlike manner.
5.2 Client Warranties
Client represents and warrants that: (a) Client has the power and authority to enter into and perform its obligations under this Agreement; (b) Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the Web Site; and (c) Client has obtained any authorization(s) necessary for hypertext links from the Web Site to other third party Web sites. Should Client receive notice of a claim regarding the Web Site, Client shall promptly provide Phillips Data, Inc. with written notice of such claim.
5.3 Disclaimer of Warranty
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, PHILLIPS DATA MAKES NO WARRANTIES HEREUNDER, AND PHILLIPS DATA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. Indemnification
6.1 Client
Client agrees to indemnify, defend, and hold harmless Phillips Data, Inc., its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Client's representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the Web Site infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.
6.2 Phillips Data, Inc.
Phillips Data, Inc. agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action arises out of the gross negligence or willful misconduct of Phillips Data, Inc.
6.3 Notice
In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of the foregoing paragraphs. The indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party shall not be final without the indemnified Party's written consent, which shall not be unreasonably withheld.
7. Limitation of Liability
PHILLIPS DATA SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE WEB SITE OR CLIENT'S DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. PHILLIPS DATA SHALL HAVE NO LIABILITY WITH RESPECT TO PHILLIPS DATA'S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF PHILLIPS DATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF PHILLIPS DATA TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO PHILLIPS DATA BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
8. Termination of Payment
Upon any termination or expiration of this Agreement, Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement.
9. Liaison
Each Party shall designate one (1) person who will act as the primary liaison for all communications regarding Hosting Services.
10. Miscellaneous
10.1 Entire Agreement
This Agreement and attached Schedules constitute the entire agreement between Client and Phillips Data, Inc. with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement.
10.2 Cooperation
The Parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each of the Parties.
10.3 Independent Contractors
Phillips Data, Inc. and its personnel, in performance of this Agreement, are acting as independent contractors and not employees or agents of Client.
10.4 Amendments
No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the Party against which such amendment, change, waiver, or discharge is sought to be enforced.
10.5 Client Identification
Phillips Data, Inc. may use the name of and identify Client as a Phillips Data, Inc. client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.
10.6 Force Majeure
Except for the payment of fees by Client, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either Party, that Party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
10.7 California Law
This Agreement shall be governed in all respects by the laws of the State of California without regard to its conflict of laws provisions, and Client and Phillips Data, Inc. agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal court located in the City of Fullerton or Santa Ana, and Client and Phillips Data, Inc. hereby submit to the jurisdiction of such courts.
10.8 Assignment
Client shall not assign, without the prior written consent of Phillips Data, Inc., its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement.
10.9 Notice
Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof, (ii) if mailed, fifteen (15) days after deposit in the United States mails, postage prepaid, certified mail, return receipt requested, (iii) if by facsimile transmission, upon electronic confirmation thereof, or (iv) if by next day delivery service, upon such delivery, or (v) if by electronic mail, five (5) days after transmission or upon receipt, whichever comes first. All notices shall be addressed as follows (or such other address as either Party may in the future specify in writing to the other):
In the case of Phillips Data, Inc.:
Phillips Data, Inc.
P.O. Box 25423
Anaheim, CA 92825
Attention: General Counsel
In the case of Client:
As on file with Phillips Data, Inc.
10.10 Waiver
The waiver of failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
10.11 Severability
If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
10.12 Counterparts
This Agreement may be executed in several counterparts, all of which taken together shall constitute the entire agreement between the Parties hereto.
10.13 Headings
The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
10.14 Approvals and Similar Actions
Where agreement, approval, acceptance, consent or similar action by either Party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
10.15 Survival
All provisions of this Agreement relating to Client warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, Client indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date of order receipt as on file with Phillips Data, Inc.
