BigFoot Web Labs (www.bigfootweblabs.com) is a professional website development company specializing in delivering high quality websites to individuals and business customers.
1. Definitions.
1.1 "Customer" means the persons, entity or agents and authorized representatives accepting this agreement.
1.2 "Content" means all text, pictures, sound, graphics, video, links, and other data stored by Customer on BigFoot Web Labs/ExCytrix LLC’s server computers.
1.3 "Website" means pages presenting the Content stored by BigFoot Web Labs/ExCytrix LLC computers.
1.4 "User" means users of Customer's Website.
1.5 "User Content" means all text, pictures, sound, graphics, video, links, and other data stored by Users on BigFoot Web Labs/ExCytrix LLC server computers.
1.6 "Confidential Information" means information that Customer takes reasonable steps to maintain in confidence and identifies in writing to BigFoot Web Labs/ExCytrix LLC as confidential.
2.1 – Hosting.
BigFoot Web Labs/ExCytrix LLC will provide dedicated or shared servers, as specified in Exhibit A, with an Internet address for storage and access of Content, User Content, and the Website. BigFoot Web Labs/ExCytrix LLC will provide bandwidth and storage as specified in Exhibit A. If Customer requires additional bandwidth or storage, BigFoot Web Labs/ExCytrix LLC will negotiate in good faith to amend this Agreement unless BigFoot Web Labs/ExCytrix LLC’s server computers cannot accommodate the requested bandwidth or storage. BigFoot Web Labs/ExCytrix LLC retains the right to assign or delegate hosting to a viable third party of their choosing, within the confines and purview of their web hosting network (affiliates, subcontractors, licensees etc.).
2.2 – Website Backup.
BigFoot Web Labs/ExCytrix LLC will backup the Website in a commercially reasonable manner. However, BigFoot Web Labs/ExCytrix LLC is not responsible for lost Content or lost User Content. Website backups will be stored by BigFoot Web Labs/ExCytrix LLC for no longer than 14 days. BigFoot Web Labs/ExCytrix LLC will provide, at Customer's expense, an electronic copy of the backup Website to Customer upon written request by Customer. Backups are intended for disaster recovery, not the restoration of individual files.
2.3 – Standards.
BigFoot Web Labs/ExCytrix LLC’s services will conform to the following:
2.3.1 – Availability of Website.
BigFoot Web Labs/ExCytrix LLC will provide hosting services for the Website that meet reasonable commercial standards for, among other matters, packet loss, accessibility, latency, availability, and throughput.
2.3.2 – Security.
BigFoot Web Labs/ExCytrix LLC will take commercially reasonable steps to prevent unauthorized access to the Website, Content, User Content, and Confidential Information stored on BigFoot Web Labs/ExCytrix LLC’s server computers.
2.3.3 – Server/Network Computer Outages.
BigFoot Web Labs/ExCytrix LLC will employ best efforts in providing advance notice to Customer of scheduled server computer/network outages.
2.3.4 – Disclaimers.
BigFoot Web Labs/ExCytrix LLC provides no equipment, software, or communication connections to Customer. BigFoot Web Labs/ExCytrix LLC makes no representations, warranties or assurances that the Customer's equipment, software, and communication connections will be compatible with BigFoot Web Labs/ExCytrix LLC’s hardware and service.
3.1 – Customer Content.
All Content and User Content stored by Customer on BigFoot Web Labs/ExCytrix LLC’s server computers shall at all times remain the property of Customer. Customer grants to BigFoot Web Labs/ExCytrix LLC non-exclusive, worldwide license to the Content and User Content only to the extent necessary for BigFoot Web Labs/ExCytrix LLC to host the Website.
3.2 – Customer E-commerce.
BigFoot Web Labs/ExCytrix LLC, is not responsible or liable for any products or servies bought or sold by Customer. BigFoot Web Labs/ExCytrix LLC is not responsible or liable for any taxes local or federal that Customer may occur while selling products or services on the website.
3.3 – Themes
BigFoot Web Labs uses commercially available themes in building some of it's non-custom sites. All theme designs remain the property of the designers, including Elegant Themes (www.elegantthemes.com). Themes are used by BigFoot under commerical developer licenses as prescribed by the theme designer/owners. BigFoot Web Labs does not represent to have designed the theme itself, only modify and populate it per customer needs and specifications. For specific custom sites, BigFoot developers design and pass rights onto it's customer for ownership of custom developed works, including art.
4.1 – Lawful Purpose.
Customer will only use BigFoot Web Labs/ExCytrix LLC’s hardware and services for lawful purposes and Customer will not store or provide any Content or User Content or link to any material that violates foreign, federal, state or local law, the Terms of Service of Exhibit B and any modifications thereof, BigFoot Web Labs/ExCytrix LLC’s posted Acceptable Use Policy, or any other BigFoot Web Labs/ExCytrix LLC policy.
4.2 – Remedy for Violation.
Should BigFoot Web Labs/ExCytrix LLC become aware that Customer has violated Part
4.1, BigFoot Web Labs/ExCytrix LLC may, at its option, remove the Content or User Content in violation, immediately terminate hosting Customer's Website under Part 6.3, and/or notify authorities. If hosting is terminated, BigFoot Web Labs/ExCytrix LLC may, in its sole discretion, reinstate hosting upon adequate showing of Customer's right to use the Content or User Content.
5.1 – Fees.
Customer shall pay fees agreed upon during account signup. BigFoot Web Labs/ExCytrix LLC will invoice monthly (unless otherwise agreed in writing), and payment is due NO LATER THAN fourteen (14) days from invoicing. In the case of credit card payments BigFoot Web Labs/ExCytrix LLC will automatically charge Customer Credit Card on file all fees associated with the account on the due date. BigFoot Web Labs/ExCytrix LLC may, at its option, charge a 10% fee for late payments post (14) days from invoicing. Period of two month delinquency will entitle BigFoot Web Labs/ExCytrix LLC to suspend service and/or terminate based on breach.
5.2 – Returned Checks and Declined Credit Cards may incur a fee.
5.3 – Account Updates.
It is the responsibility of the customer to maintain accurate billing information with BigFoot Web Labs/ExCytrix LLC This may include updated credit card information, email address and mailing address.
6. Term and Termination/Cancellation.
6.1 – Term.
The initial term is agreed upon during account signup. After the initial term, this Agreement will automatically renew on a month-to-month basis until contractual period is terminated.
6.2 – Termination/Cancellation by Customer.
During the initial term, Customer may terminate this Agreement only upon the material breach of BigFoot Web Labs/ExCytrix LLC if such material breach remains uncured for thirty (30) days following written notice to BigFoot Web Labs/ExCytrix LLC. This cure period shall be extended by delay caused by events beyond the control of BigFoot Web Labs/ExCytrix LLC including, but not limited to, natural disasters, governmental prohibitions or regulations, viruses that did not result from the acts or omissions of BigFoot Web Labs/ExCytrix LLC, or technical faults of BigFoot Web Labs/ExCytrix LLC service providers or vendors. After the initial term, Customer may terminate this Agreement upon fourteen (14) days written notice to BigFoot Web Labs/ExCytrix LLC.
6.2.1 – FEES.
If client terminates contract before the term has ended in 6.1 (TERMS), and has no material breach as described in 6.2 (Termination/Canellation by Customer) then the remaining FULL contract amount is due.
6.3 – Termination by BigFoot Web Labs/ExCytrix LLC.
BigFoot Web Labs/ExCytrix LLC may immediately terminate this Agreement for cause at any time without penalty. Causes justifying immediate termination include, but are not limited to: violation of any foreign, federal, state, or local law; non-payment of fees due under Part 5 of this Agreement; breach of this Agreement; violation of the Terms of Service found at http://www.bigfootweblabs.com. and any written modifications thereof; and violation of any other BigFoot Web Labs/ExCytrix LLC policy. BigFoot Web Labs/ExCytrix LLC may terminate this Agreement without cause at any time upon thirty (30) days written notice to Customer.
7. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, BIG FOOT WEB LABS/EXCYTRIX, AND ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE, MAKE NO WARRANTY IN CONNECTION WITH BIG FOOT WEB LABS/EXCYTRIX’S HARDWARE OR SERVICES, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
Customer shall defend BigFoot Web Labs/ExCytrix LLC against any third party claim, action, suit or proceeding arising as a result of Customer's use BigFoot Web Labs/ExCytrix LLC’s hardware or services and indemnify BigFoot Web Labs/ExCytrix LLC for all losses, damages, expenses, and costs incurred by Big Foot/ExCyte LLC as a result of a final judgment entered against BigFoot Web Labs/ExCytrix LLC in any such claim, action, suit or proceeding.
9.1 – Governing Law.
This Agreement will be governed and construed in accordance with the laws of the State of California. Both parties agree to submit to personal jurisdiction in California and further agree that any cause of action or dispute arising under this Agreement will be litigated or arbitrated in Orange County, California, United States of America.
9.2 – Severability and Waiver.
If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
9.3 – Relationship of Parties.
No agency, partnership, joint venture, or employment relationship is created by this Agreement and neither party has the power to bind the other party.
9.4 – Attorneys Fees and Costs.
In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled, in addition to its court costs, to such reasonable attorneys' fees, expert witness fees and legal expenses as may be fixed by a court of competent jurisdiction.
9.5 Merger and Integration Clause
This Agreement and the exhibits attached hereto contain the entire agreement of the parties with respect to the subject matter of this Agreement, and supersede all prior negotiations, agreements and understandings with respect thereto. This Agreement may only be amended by a written document duly executed by all parties.