Madison Web Technologies, Inc.
Web Site Services Agreement
Terms and Conditions
The terms and conditions set forth herein constitute the full and complete agreement between You and Madison Web Technologies, Inc. ("Madison Web"). By using the Madison Web Web Site, Hosting Services, any Support Services, any Madison Web software (the Madison Web Software), or any other products or services of Madison Web (together the "Madison Web Services"), You agree to be bound by the terms of this Agreement. The terms contained herein supercede and replace any other agreement or negotiation between you and Madison Web, whether oral, written or otherwise, including any statements made to you by any representative of Madison Web at any time. Any amendments, changes, additions, deletions or other modifications of this Agreement are void unless specifically expressed in writing and agreed to by Madison Web.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You've established with Madison Web whether or not the transactions were in Your behalf.
As consideration for the services purchased by You and provided to You by Madison Web Technologies, Inc., You agree to pay Madison Web Technologies, Inc. a monthly fee. Your monthly billing date will be determined based on the day of the month You establish Your Web Hosting relationship with Madison Web.
Payment of fees must be made by Credit Card (American Express, Visa and MasterCard). Payment for all products and services is due monthly in advance, unless specifically stated otherwise in the offer or promotion pursuant to which you have ordered or are ordering the Madison Web Services. All payments shall be made in United States Dollars. All charges once made are strictly non-refundable. Upon cancellation for any reason according to Article 5 herein, all charges up to that notice of cancellation are due and payable in full including charges during the notice period and are non-refundable. No Invoices will be sent and all payments must be made electronically in advance of services.
Payment by Credit Card: prior to activation of your user account and at any applicable time thereafter you authorize Madison Web to charge the credit card provided by you for the amount of the fees due for the agreed upon services, together with any applicable set-up charges, registration fees, or any other charges outlined herein as may be applicable. You further authorize Madison Web to charge your credit card for all subsequent period fees at, or a reasonable period in advance of, the commencement of any such subsequent period. Should you fail to provide credit card authorization to pay for the overage, Madison Web, at its sole discretion will have the right to suspend your account and/or terminate it at under Article 5 hereof. Refusal or rejection of any charge or any portion thereof is grounds for account suspension and/or termination at the sole option of Madison Web under Article 5 herein.
2. Web Hosting Services
Madison Web currently provides Web Hosting services to its customers for a monthly fee. Madison Web will host Your web site on Madison Web's Web Hosting servers, provided, however, You abide by the terms and conditions set forth herein and in each of Madison Web's policies and procedures.
For the term of the agreement as set forth herein, Madison Web agrees to provide the Madison Web Services, to the extent they have been subscribed to by you, upon activation of your account. Madison Web reserves the right to change, amend and/or otherwise alter the Madison Web Services with equivalent or otherwise equal services without prior notice to you.
Account activation and provision of the Madison Web Services will commence as soon as is practicable after receipt of your order, dependent on the timely receipt of any payment due from you in connection therewith.
Subscribers to Madison Web Services must be at least 18 years of age or require the approval of the minor's legal guardian.
Your website content license
Madison Web grants to You, and You accept from Madison Web, a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet Your website content in connection with Madison Web's performance or enforcement of this Agreement. That portion of your website however which is built with the Madison Web Sitebuilder software (main website templates, php scripts, etc.) is only granted as license for use on the Madison Web servers and is immediately revoked for use on any server not owned or operated by Madison Web.
Subject to the terms and conditions of this Agreement, Madison Web shall attempt to provide Web Hosting for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. You agree that from time to time the Web Hosting service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Madison Web may undertake from time to time; or (iii) causes beyond the control of Madison Web or which are not reasonably foreseeable by Madison Web, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures. You agree that Madison Web has no control of availability of Web Hosting on a continuous or uninterrupted basis.
Service Availability Guarantee. Madison Web offers a service uptime guarantee for its Web Hosting service of 99.9% ("Service Uptime") of available time. If Madison Web fails to maintain this level of service availability, You may contact Madison Web and request a credit of 5% of Your monthly hosting fee from Madison Web for that month. The credit may be used only for the purchase of further products and services from Madison Web, and is exclusive of any applicable taxes. The credit does not apply to service interruptions caused by (i) scheduled maintenance; (ii) errors caused by You from custom scripting or coding; or (iii) outages that do not affect the appearance of the web site but merely affect access to the web site such as FTP and email. Total Service Uptime shall be solely determined by Madison Web and shall be calculated on a monthly basis.
Web Site Content
You shall be solely responsible for providing, updating, uploading and maintaining Your website and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through Your web site, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. Your web site content shall also include any registered domain names provided by You or registered on behalf of You in connection with the Web Hosting services.
3. Your Obligations
You agree that You have provided accurate, current and complete information in the application process and that You will notify Madison Web within five (5) business days when any of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by Madison Web to determine the validity of information provided by You, will constitute a material breach of this Agreement. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if Madison Web has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, Madison Web has the absolute right, in its sole discretion, to terminate its Web Hosting services and close Your account.
You represent and warrant to Madison Web that: (i) You have the power and authority to enter into and perform Your obligations under this Agreement; (ii) Your Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) You own Your website content and all proprietary or intellectual property rights therein, or have express written authorization from the owner to copy, use and display the content on and within Your web site. You also warrant that the web site being hosted by Madison Web will not be used in connection with any illegal activity.
If You are hosting Your web site on Madison Web's servers, You are responsible for ensuring that there is no excessive overloading on Madison Web's DNS or servers. You may not use Madison Web's servers and Your web site as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and Madison Web reserves the right to remove sites that contain information about hacking or links to such information. Use of your web site as an anonymous gateway is prohibited. Madison Web prohibits the use of software or scripts run on its servers that cause the server to load beyond a reasonable level, as determined by Madison Web. You agree that Madison Web reserves the right to remove Your web site temporarily or permanently from its hosting servers if Madison Web is the recipient of activities that threaten the stability of its network.
You agree not to engage in unacceptable use of any Services, which includes, without limitation, use of the Services to: (i) disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email; (ii) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which You do not have authorization to access or at a level exceeding Your authorization; (vii) disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; or (viii) engage in any other activity deemed by Madison Web to be in conflict with the spirit or intent of this Agreement or any Madison Web policy.
Storage and Security
At all times, You shall bear full risk of loss and damage to your web site and all of Your web site content. You are entirely responsible for maintaining the confidentiality of Your password and account information. You agree that you are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the Site or any of Your web site content displayed, linked, transmitted through or stored on the Server. Even though Madison Web takes full and complete measures to backup all client data on a regular basis, You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your web site content; (ii) maintain independent archival and backup copies of Your web site content; (iii) ensure the security, confidentiality and integrity of all your web site content transmitted through or stored on Madison Web servers; and (iv) ensure the confidentiality of Your password. Madison Web's servers and hosting services are not an archive and Madison Web shall have no liability to You or any other person for loss, damage or destruction of any of Your content. Madison Web will however, for a negotiated fee, attempt to restore from its backups on a “best efforts” basis any data specified by you which may be contained therein. If Your password is lost, stolen or otherwise compromised, You shall promptly notify Madison Web, whereupon Madison Web shall suspend access to Your web site by use of such password and issue a replacement password to You or Your authorized representative. Madison Web will not be liable for any loss that You may incur as a result of someone else using Your password or account, either with or without Your knowledge. However, You could be held liable for losses incurred by Madison Web or another party due to someone else using Your account or password.
4. Madison Web's Rights
Madison Web explicitly reserves the right and sole discretion to: (i) Censor any web site hosted on its Web Hosting servers that, in Madison Web's sole discretion, is deemed inappropriate; (ii) Review every Web Hosting account for excessive space and bandwidth utilization and to terminate or apply additional fees to those accounts that exceed allowed levels; (iii) Modify its pricing through email notification; (iv) Terminate Your Web Hosting service for unsolicited, commercial e-mailing (i.e., SPAM); illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; non-payment of Web Hosting fees; and other activities whether lawful or unlawful that Madison Web determines to be harmful to its other customers, operations, or reputation; (v) Terminate Your Web Hosting service if the contents of Your web site result in, or are the subject of, legal action or threatened legal action, against Madison Web or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. Madison Web has no obligation to monitor the Site or any of Your content, but reserves the right in its sole discretion to do so.
Liquidated Damages for SPAM transmission
Madison Web will immediately terminate any Web Hosting service which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then you agree to pay Madison Web liquidated damages of $1 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your website hosted with us, otherwise you agree to pay Madison Web's actual damages.
5. Term and Termination
The term of this Agreement shall commence on the date You purchase the Web Hosting services, and will continue in full force and effect as long as Madison Web is providing Web Hosting services to You.
You agree that You will be responsible for notifying Madison Web should you desire to terminate Your use of Madison Web's Web Hosting services. Notification of Your intent to terminate must be provided to Madison Web via email, fax, or USPS no later than 90 days prior to termination of service. In the event that this condition is not met, you will be charged an additional three (3) month's service fee plus $175.00 cancellation fee. Any and all account setup fees and/or payments up to the time of termination are non-refundable. Please note that certain enhanced plans may include different termination terms and fees which are in writing and will supercede the aformentioned termination conditions. In the absence of notification from You, Madison Web will automatically continue Web Hosting services indefinitely and will charge the credit card You have on file with Madison Web, at Madison Web's then current rates. It is Your responsibility to keep your Payment Method information current, including the expiration date of any credit cards you have on file. In the event You terminate, moving your web site (note: the Madison Web templated portions of your site are copyrighted and hence cannot be moved) off of the Madison Web hosting servers is Your responsibility. Madison Web will not transfer or FTP Your web site to another provider. Madison Web reserves the right, in its sole discretion and without notice, at any time and for any reason, to suspend Your access to or use of the Server, services or any portion thereof. In the event Your Web Hosting service is terminated, Madison Web will not transfer or manage Your Web Hosting or Your website content.
You agree that Madison Web may modify this Agreement from time to time. Madison Web may also discontinue services it provides under this Agreement. You agree to be bound by any changes Madison Web may reasonably make to this Agreement when such changes become effective. You also agree that any breach of any of the terms of this entire agreement will constitute a termination under this portion of the agreement and will cause the current charges and termination fees if any to become due and payable immediately.
6. Limitation of Liability
IN NO EVENT SHALL MADISON WEB BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE, EVEN IF MADISON WEB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT MADISON WEB'S TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL FEES PAID BY YOU TO MADISON WEB HEREUNDER FOR THE ONE (1) YEAR PERIOD PRIOR TO ANY ACT OR OMISSION GIVING RISE TO ANY POTENTIAL LIABILITY.
You agree to release, defend, indemnify and hold harmless Madison Web and its contractors, agents, employees, offices, directors, shareholders and affiliates from and against any action, claim, demand, dispute, liability, losses, damages or costs, including reasonable attorney's fees and costs, resulting from or related to (i) a dispute over one or more web sites Madison Web is hosting for you, (ii) Your breach of this Agreement, (iii) any negligence, willful or improper misconduct by You; (iv) any allegation that Your site or content infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets; or (v) any action or conduct of Madison Web's undertaken pursuant to this Agreement. You shall defend and settle at Your sole expense all proceedings arising out of the foregoing. You agree that Madison Web shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify Madison Web of any such claim promptly in writing and to allow Madison Web to control the proceedings. You agree to cooperate fully with Madison Web during such proceedings. You agree You will not be entitled to a refund of any fees paid to Madison Web if, for any reason, Madison Web takes corrective action with respect to Your improper or illegal use of its Web Hosting services. You also agree that if Madison Web is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a web site hosted by Madison Web, that Madison Web, in its sole discretion, may take whatever action Madison Web deems necessary regarding further modification, assignment of and/or control of the web site to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is set.
8. Force Majeure / Withdrawal From Business
Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
In addition to any event of force majeure as described in the foregoing paragraph, Madison Web may also terminate this Agreement in the event that Madison Web elects, at its sole discretion, to cease doing business in the United States and/or Canada for economic reasons or for any other reason whatsoever. Customers who, at the time Madison Web ceases doing business in the United States and/or Canada, are taking advantage of any Madison Web offer for free services or any other services that were intended to go beyond the date of cessation (hereinafter, the “Extended Services”), may not recover any damages from Madison Web (or any of its affiliated entities) in the event that they incur costs and expenses related to the cessation of the Extended Services, nor do such customers have, nor may they bring, any claim for repayment of such costs and expenses, including without limitation, fees paid to other hosting services for the balance of time remaining with respect to any Madison Web offer of Extended Services. Customers receiving Extended Services at the time of cessation of business shall be entitled to a reimbursement of their pre-paid service fees, if any, except for Domain Services Fees, which are in always non-refundable as provided for elsewhere herein.
This agreement and the rights hereunder is not assignable or transferable except that Madison Web may freely assign all of its rights hereunder to any person or entity who shall become a principal owner, or shareholder of Madison Web, or to any affiliated company or successor in interest of Madison Web. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio. Upon any such assignment by Madison Web to any other party, including to any affiliated company or successor in interest of Madison Web, you have the right to terminate this Agreement by giving notice thereof in writing to Madison Web and any such termination shall become effective thirty (30) days after the receipt of such notice by Madison Web.
10. Disclaimer of Warranties
Madison Web expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, concerning any subject matter of this agreement.
You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
12. Venue; Waiver of Trial by Jury
This agreement shall be deemed entered into the state of Tennessee. the laws and judicial decisions of davidson county, Tennessee, shall be used to determine the validity, construction, interpretation and legal effect of this agreement. You agree that any action relating to or arising out of this agreement, shall be brought in the courts of davidson county, Tennessee.
You agree to waive the right to trial by jury in any proceeding that
takes placerelating to or arising out of this agreement.
You agree that all notices (except for notices concerning breach of this Agreement) from Madison Web to You may be posted on our web site. Notices concerning breach will be sent either to the email or postal address You have on file with Madison Web. In either case, delivery shall be deemed to have been made five (5) days after the date sent.
Notices from You to Madison Web shall be made either by email, facsimile, or mailed to the address we provide on our Web site, or first class mail to our address below. They shall be deemed to be delivered when received by Madison Web through first class mail the date they are received, or when sent by facsimile.
Madison Web Technologies, Inc.
ATTN: General Counsel
3813 Cleghorn Ave., Suite 200
Nashville, TN 37215