This Vuepoint Custom Website Design Service and Maintenance Agreement ("Agreement") is entered into by and between Vuepoint ("Vuepoint") a/an Texas based Limited Liability Corporation and you and your heirs, agents, successors and assigns (collectively, "You"), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of Vuepoint Custom Website and its related services (collectively, the "Services") and represents the entire agreement between You and Vuepoint concerning the subject matter hereof. By using the Services, You acknowledge that You have read, understand, acknowledge and agree to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies including, but not limited to, the Universal Terms of Service that Vuepoint may establish from time to time, in its sole discretion, and any agreements that Vuepoint is currently bound by or may become bound by in the future. Such Agreements may be found here. All Vuepoint policies and agreements related to Your use of the Services are incorporated herein and made part of this Agreement by reference.
Design Services
Depending on the level of service purchased, Vuepoint will create a custom web site tailored toward Your reasonable expectations. The service will include an initial interview, presentation of the initial design and either: 1) Web Plus customers will receive two round of site update revisions; or 2) Premium and Ultimate customers will receive 5 round of design updates and one round of site updates. Vuepoint will require all content copy and high quality images for inclusion in your custom site. All material must be supplied in an electronic file format and transmitted to Vuepoint electronically via email or file upload. Files that are too large to be transmitted electronically can, by prior arrangement, be delivered on a CD to our facilities via any standard shipping carrier. Content can, by prior arrangement, be faxed or sent to our facilities in hard copy format. Content delivered in hard copy format may incur additional fees for electronic conversion. Vuepoint is not responsible for delays in custom website completion due to delays in the receipt of shipped items. Vuepoint, in its sole discretion, may require you to re-submit images should they determine that the images are not of high enough quality. Vuepoint will not begin construction of Your website until all requested materials and assurances of rights have been received from You. All materials provided should be copies and not original material. Vuepoint will not return any materials provided by You in the design process. Failure to provide such material within thirty (30) days from request will result in cancellation of Your work order. No credits or refunds will be given for such cancellation. Vuepoint will strive toward your satisfaction, but does not guarantee that all of your requests will be satisfied if they are unreasonable or unable to be accomplished within the scope of the Services. Your publication of the website is acknowledgement of Your satisfaction with the Services and releases Vuepoint from any obligation for further revisions or alterations. No credits or refunds shall be given for any reason including dissatisfaction with the design created.
Legal Agreements
You acknowledge that You have entered into the Custom WebSite Service End User License Agreement. You further acknowledge that You and Vuepoint or a Vuepoint affiliate ("Hosting Provider") have entered into a Hosting Service Agreement ("Hosting Agreement"). You agree to be bound by these agreements and all policies and procedures as posted on its web site.
Limitations
Vuepoint strives towards creating a website that meets your expectations. However, Vuepoint does not guarantee that expectations will be met if requests are unreasonable or unable to be completed within the scope of the Service. Every step of the Service requires Your feedback. Failure to provide timely and reasonable feedback may delay or frustrate completion of the Service. Vuepoint is not responsible for additional fees, time, or expenses incurred because of delays caused by lack of reasonable feedback, including Your failure to initiate the process. Should You fail to initiate the creation process by not responding to the initial request for interview within thirty (30) days, Your account will be considered inactive and the Service will terminate. No refunds or credits will be given for termination due to Your failure to respond to the initial request for interview or any feedback requests. Should You delay feedback for more than thirty (30) days Your unpublished website may be archived and will require additional activation fees to recover.
You are responsible for maintaining the security of Your account. Vuepoint shall not be liable for any revisions or changes made by Your or any person gaining access to Your account. Any revisions requested to fix such changes shall be made in Vuepoint's sole discretion and then only upon payment of additional fees.
Vuepoint reserves the right to refuse any direction to create a web site that exploits children, contains pornography or other tasteless images, contains copyrighted or trademarked materials of others or infringes on the intellectual property rights of another, harasses, defames or slanders another or for any other reason that Vuepoint, in its sole discretion, decides. Vuepoint has the right, but not the obligation, to back up or archive Your custom website prior to publication.
The Services, the resulting product and all copies belong to Vuepoint. The Services, the resulting product and all copies are copyrighted and are protected by United States copyright laws and international treaty provisions with all rights reserved. Vuepoint grants You an unrestricted license in the website and any products resulting from the purchase of the Services for the duration of Your Custom WebSite Service subscription. Cancellation of Your Custom WebSite Service subscription for any reason terminates Your license to the website and all products resulting from the purchase of the Services. You agree to prevent any unauthorized copying of the Services or resulting products. Vuepoint does not grant any express or implied right to You under Vuepoint patents, copyrights, trademarks, or trade secret information. Vuepoint may display screen shots of the resulting product online, in marketing materials or in other manners in Vuepoint's sole discretion.
Maintenance and Alterations After Publication
Maintenance Services
Vuepoint will only alter or maintain your website on a per hour basis after publication of your site.
Availability of Service
Subject to the terms and conditions of this Agreement and each of Vuepoint's policies and procedures, Vuepoint shall use commercially reasonable efforts to attempt to provide the Services on Monday – Friday, 9am – 5pm CST basis, excluding holidays, throughout the term of this Agreement. You acknowledge and agree that from time to time the Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Vuepoint may undertake from time to time; or (iii) causes beyond the reasonable control of Vuepoint or that are not reasonably foreseeable by Vuepoint, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that Vuepoint has no control over the availability of the Services on a continuous or uninterrupted basis.
Your Obligations
By using the Services, You agree that You are age 18 or over. The Service is available only to persons who can make legally binding contracts under applicable law.
You agree that you have the appropriate rights or licenses in all logos, trademarks or intellectual property supplied by You.
You agree that all requests shall be reasonable in nature and within the scope of the Service as advertised. You also agree that You will not use the Service to create a website that contains the following types of information: (i) personal information about children without their parent’s consent, (ii) pornographic or obscene content, as determined by Vuepoint in its sole discretion, (iii) tasteless images, (iv) excessively violent material, (v) links to web sites containing the serial numbers for unlocking software illegally, (vi) pyramid schemes, (vii) impersonations of another person, (viii) encouraging the use of a controlled substance, (ix) selling or promoting products that are unlawful in the location where the site is published, (x) advocating, promoting, or encouraging violence against any person, organization, or the government, or (xi) links to web pages containing any of the aforementioned content. You represent and warrant that you will not violate any law, third party rights, or post any false, inaccurate, misleading, defamatory or libelous content or statements on your website.
You also agree to respond to any requests for feedback within seven (7) days. Failure to respond within thirty (30) days shall result in a non-refundable cancellation of the Service. Upon notice of completion of Your website, within five (5) days of such notice You must either (i) publish Your website; or (ii) notify Vuepoint of Your election not to publish. If You do not publish Your website or notify Vuepoint of Your election not to publish, Your website will be published on Your behalf. You acknowledge and agree that once published, all Vuepoint's obligations under this Agreement have been met. At any time after publication, You may elect to de-publish Your website by changing to the 'coming soon' page option.
Limitation of Liability
THE SERVICES AND THE ASSOCIATED SOFTWARE ARE BEING PROVIDED AND /OR LICENSED "AS IS" AND VUEPOINT DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE FULLEST EXTENT PERMITTED OR AUTHORIZED BY LAW WITHOUT LIMITATION OF THE FOREGOING, VUEPOINT EXPRESSLY DOES NOT WARRANT THAT THE SERVICES OR THE ASSOCIATED SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT USE OF THE SERVICES OR OPERATION OF THE ASSOCIATED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE .
IN NO EVENT SHALL VUEPOINT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA , OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE SERVICES, EVEN IF VUEPOINT IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
You shall indemnify, defend by counsel reasonably acceptable to Vuepoint, protect and hold Vuepoint harmless from and against any and all claims, liabilities, losses, costs, damages, expense, including consultants` and attorneys` fees and court costs, demands, causes of action, or judgments directly or indirectly arising out of or related to Your use of the services or your breach of this Agreement.
Vuepoint's Rights and Restrictions
Vuepoint explicitly reserves the right and sole discretion to: (i) modify its pricing, if desired by Vuepoint ; (ii) establish limits and guidelines concerning the use of the Services; (iii) terminate Your use of the Services for use of the Services to unnecessarily or illegally harass, non-payment of fees for the Services, activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties, activities prohibited by the laws of the United States and/or foreign territories in which You conduct business, activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography, activities that are tortious, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable in the sole opinion of Vuepoint, activities designed to impersonate the identity of a third party, activities designed to harm minors in any way, and other activities whether lawful or unlawful that Vuepoint determines, in its sole discretion, to be harmful to its other customers, operations, or reputation; (iv) terminate Your use of the Services if Your use of the Services results in, or is the subject of, legal action or threatened or proposed legal action, against Vuepoint or any of its affiliates or partners, without consideration for whether such legal action or threatened or proposed legal action is eventually determined to be with or without merit, and (v) terminate Your use of the Services if You have not responded to requests for feedback. If Vuepoint terminates Your use of the Services, Vuepoint may, at its own option and in its sole discretion, remove and destroy data and files stored by You on its servers. Vuepoint has no obligation to monitor Your use of the Services, but reserves the right in its sole discretion to do so.
Revised: 10/22/2007
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