MONTHLY SOFTWARE AND HOSTING AGREEMENT
The following agreement ("Agreement") contains the complete terms and conditions that will apply between you (“Customer”) and Merchant Metrix, Inc ("MERCHANT METRIX"), an Oklahoma corporation having a business office and address at 19051 Oaklawn Valley Rd., Noble, OK 73068, if all of the following conditions are met: (1) you agree to the terms and conditions of the Agreement and indicate your acceptance of the terms and conditions of the Agreement by accepting service; (2) you fully and correctly provide all information requested of you during our sign-up process; and (3) you submit proper payment pursuant to Section 3, of this Agreement. This Agreement shall become effective on the date (the "Effective Date") that payment is received and accepted by MERCHANT METRIX.
MERCHANT METRIX, INC IS WILLING TO PROVIDE SOFTWARE AND HOSTING SERVICES TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS HEREIN, MERCHANT METRIX, INC IS UNWILLING TO PROVIDE SOFTWARE AND HOSTING SERVICES TO YOU.
WHEREAS, MERCHANT METRIX has developed, owns and markets proprietary, Internet-based, e-commerce, other online software applications and offers Web Site Hosting Services on the Internet; and
WHEREAS Customer wishes to make use of the online software applications and retain the Web Site Hosting Services of MERCHANT METRIX;
NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, MERCHANT METRIX and Customer agree as follows:
1. DEFINITIONS
A. "Customer's Content" means any and all material developed, purchased, or otherwise acquired by Customer that is published, made available or otherwise used in conjunction with Customer's Web site. Customer’s Content includes, but is not limited to, end user data collected by Customer, and information regarding merchandise or services sold by Customer through its Web site.
B. "Hosting Services" means the services described in Section 2.A of this Agreement.
C. "Software" means the MERCHANT METRIX software, previous and current release version, including any updates provided by MERCHANT METRIX, and MERCHANT METRIX's proprietary technology and source code.
D. "MERCHANT METRIX's Content" means any and all material developed by MERCHANT METRIX and made available for use by Customer, including any designing of Customer's Web site, and templates prepared by MERCHANT METRIX for use by Customer.
E. "Web site" means Customer's Internet presence, identified by the domain name provided by Customer.
2. SOFTWARE AND HOSTING SERVICES
A. Web Site Hosting Services. MERCHANT METRIX shall provide storage for the Software, and content of Customer's Web site and make it available for end-users to access;
B. Service Levels. MERCHANT METRIX shall provide the Web Site Hosting Services in substantial compliance with the hosting functionality service levels set forth in the SLA.
C. Service Level Warranty. MERCHANT METRIX guarantees that the network will be available 99% of the time in a given month. This service level warranty shall not apply to performance issues: (1) to the extent caused by factors outside of MERCHANT METRIX's reasonable control; (2) that resulted from any actions or inactions of Customer or any third parties not affiliated with MERCHANT METRIX; (3) that resulted from Customer's equipment and/or third-party equipment; (4) that resulted from software related issues; or (5) that are scheduled by MERCHANT METRIX for purposes of maintaining or updating the Web site or the Software. Upon experiencing downtime, MERCHANT METRIX will refund a customer 5% of the monthly fee for each 30 minutes of downtime (up to and not to exceed 100% of customer's monthly fee). Network downtime exists when a particular customer is unable to transmit and receive data and MERCHANT METRIX records such failure in the MERCHANT METRIX trouble ticket system. Network downtime is measured from the time the trouble ticket is opened by the customer to the time the server is once again able to transmit and receive data. If Customer fails to comply with this requirement, Customer forfeits its right to a receive service credit.
3. FEES
A. Fees. In consideration of the Web Site Hosting Services, Customer will pay to MERCHANT METRIX all fees due according to the prices and terms listed on the invoice. All sales are final, and MERCHANT METRIX offers no partial or full refunds.
B. Change in Fees. MERCHANT METRIX may change its fee schedules on sixty (60) days notice by postal mail, electronic mail, or by posting the same on MERCHANT METRIX's own Web site. Upon such notice, Customer shall have thirty (30) calendar days prior to the effective date of the fee schedule to notify MERCHANT METRIX by certified postal mail should it not agree to such rate increase and that Customer wishes to terminate this Agreement.
C. Payment. MERCHANT METRIX will automatically bill Customer once a month. Shopping cart services must be paid by credit card or cash only. Checks are accepted for non-shopping cart services. If a payment is returned or rejected by MERCHANT METRIX's bank, or incurs additional costs for MERCHANT METRIX (e.g., bank fees) for any reason, then Customer shall pay a service fee of $50 and reimburse all such fees and costs incurred by MERCHANT METRIX, and Customer shall be immediately deemed to be in default of this Agreement. Accounts not paid in full by the tenth day after MERCHANT METRIX submits its invoice may have their service interrupted or terminated, but any interruption does not relieve Customer from the obligation to pay all fees due to MERCHANT METRIX, including the monthly account charge. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is less, until fully paid. If Customer defaults, Customer agrees to pay MERCHANT METRIX its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights.
D. Suspensions. Any site suspended for non-payment will be assessed a $50 reactivation fee. All prior and current fees with late fees must be paid before the site is reactivated.
E. Terminations. Any site terminated for non-payment will be unable to retreive previous versions of the site or database. Customer agrees to pay MERCHANT METRIX its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights.
F. Taxes. All fees charged by MERCHANT METRIX for the Web Site Hosting Services are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Web Site Hosting Services, all of which Customer will be responsible for and will pay in full, except for taxes based on MERCHANT METRIX's net income. If MERCHANT METRIX is required to pay directly any such taxes, Customer will, upon receipt of MERCHANT METRIX's invoice, promptly reimburse MERCHANT METRIX for any such taxes paid by MERCHANT METRIX.
4. SUBLICENSE
Customer may not sublicense or resell any of MERCHANT METRIX's Software or Web Site Hosting Services to any third parties without the prior written permission of MERCHANT METRIX. As an example, Customer may not provide Web Site Hosting Services to any third-party without MERCHANT METRIX's prior written permission. Any attempts to do so would be considered a material breach and grounds for termination of this Agreement.
5. USE OF CUSTOMER'S NAME AND TRADEMARKS
Customer hereby grants MERCHANT METRIX a non-exclusive right and license to use Customer's name and such of Customer's trade names, trademarks, and service marks (collectively, "Customer's Marks") as are listed on Customer's Content or otherwise provided to MERCHANT METRIX in connection with this Agreement (a) on MERCHANT METRIX's own Web sites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing MERCHANT METRIX's Services, and, (c) in applications reasonably necessary and ancillary to the foregoing. Customer may use MERCHANT METRIX's trade name, trademarks, and service marks (collectively, "MERCHANT METRIX's Marks") in advertising and publicity in conjunction with the offering of Customer's Content via MERCHANT METRIX, provided that Customer shall submit copy to MERCHANT METRIX for its prior written approval, and provided further that under no circumstances shall such use imply that MERCHANT METRIX endorses, sponsors, certifies, approves or is responsible for Customer's Content. Notwithstanding the foregoing, Customer need not obtain MERCHANT METRIX's prior written approval where use of MERCHANT METRIX's Marks is limited to inclusion in a list of systems via which Customer's Content is available.
6. TERM AND TERMINATION
A. Term. The term of this Web Site Hosting Services Agreement shall begin on the Effective Date, and shall continue on a month to month basis, unless either Party gives the non-terminating Party Thirty (30) days notice of its election to terminate this Agreement.
B. Termination For Breach. Each Party shall have the right to terminate this Agreement upon Fifteen (15) days prior written notice if the other Party is in material breach of any term of this Agreement, including without limitation the payment of monies, and the breaching Party fails to remedy such breach within the fifteen day notice period.
7. ACCEPTABLE USE POLICIES
A. Acceptable Use Policy. MERCHANT METRIX maintains on its Web site MERCHANT METRIX's then-current Acceptable Use Policy ("AUP"). Customer agrees to abide by the AUP. MERCHANT METRIX may modify its AUP at any time, and shall post the then-current AUP on MERCHANT METRIX’s Web sites, which will be effective upon posting.
B. End Users to Comply with AUP. Customer acknowledges that MERCHANT METRIX may terminate an end user's access to Customer's Web site for noncompliance with MERCHANT METRIX's AUP. MERCHANT METRIX may thus terminate such end user's access to Customer's Content even if the end user has not violated Customer's own terms and conditions of use of its Web site. MERCHANT METRIX acknowledges that Customer may terminate a User's access to Customer's Content for noncompliance with Customer's terms and conditions.
8. SECURITY
Customer acknowledges that the Internet is not a secure or completely reliable system, and that the purpose of the Web Site Hosting Services is to allow end users easy access to Customer's Content. MERCHANT METRIX will take those precautions MERCHANT METRIX deems reasonable in its sole discretion to secure Customer's Web site from attack, but MERCHANT METRIX makes no warranty that there will be no outages or interruptions of service, or that Customer's Content will be secure against attack of any form by end users or other third parties.
9. CUSTOMER'S CONTENT
A. Ownership of Content. Customer acknowledges and agrees that (a) unless expressly stated elsewhere, MERCHANT METRIX has no proprietary, financial, or other interest in Customer's Content; (b) MERCHANT METRIX does not, by virtue of offering or hosting Customer's Content, edit, distribute, market, sublicense, publish, or otherwise provide Customer's Content to end users; and (c) Customer is solely responsible for the information, data, graphics, text, quality, performance, and all other aspects of its Content. Customer warrants that it owns or has the right to use and offer the Content in connection with Customer's Marks in the manner in which such Content is offered and will be offered by Customer during the term of this Agreement.
B. Protection of Content. Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its Content. Although MERCHANT METRIX provides data backup services, Customer is advised that MERCHANT METRIX in no way is responsible for any damages resulting from the loss of Customer's Content, regardless of the reason for such loss. Customer is solely responsible for backing-up/archiving Customer's Content.
10. MERCHANT METRIX'S CONTENT
Upon payment of any fees charged for the development of MERCHANT METRIX's Content, MERCHANT METRIX hereby provides Customer with a non-exclusive, royalty-free, irrevocable, non-supported license to use MERCHANT METRIX's Content as part of Customer's Web site. Customer agrees to maintain a text hyperlink to "http://www.merchantmetrix.com" in the header or footer of each Web page. The link must be visible and standard HTML, contain no javascript, and be approved by the Licensor.
11. PROHIBITED PRACTICES
MERCHANT METRIX shall have no duty or obligation to monitor Customer's Content or any other Content provided or distributed by others, and MERCHANT METRIX shall not edit or otherwise exercise any control over Customer's Content. Nevertheless, MERCHANT METRIX may, in its sole discretion at any time, without notice to Customer, and without liability to Customer, remove from public view, disconnect, or terminate the hosting of any of Customer's Content or other Content that MERCHANT METRIX deems in its sole discretion to be offensive or illegal, for any one or more of the following reasons: (i) the content is adjudicated to be in violation of the laws of the state where the server resides or the State of Oklahoma; illegal or sexually explicit Content or activities, or any Content that allegedly violates the law, rules or regulations of any country or subdivision thereof; (ii) the content constitutes harassment of Users, including, but not limited to, by means of Customer's billing practices; or (iii) Customer's noncompliance with or material breach of any of the terms and conditions of the AUP or this Agreement.; or (iv) claims made by third parties against MERCHANT METRIX that Customer or any of its end users has engaged in one or more of the above practices.
12. POINT OF CONTACT
Customer shall designate a single Point of Contact during the sign-up process. Customer's Point of Contact shall have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer agrees that MERCHANT METRIX may rely on representations made by Customer's Point of Contact. Customer may change its Point of Contact at any time by giving written notice to MERCHANT METRIX in accordance with the notice provisions of this Agreement. Said written notice must be delivered via Registered Common Courier to the address of MERCHANT METRIX. MERCHANT METRIX is under no obligation to accept instructions from anyone other than the Point of Contact.
13. CUSTOMER’S INDEMNIFICATION
Customer shall indemnify and hold harmless MERCHANT METRIX from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys fees, arising from or relating to Customer's provision, or an end user's use, of Customer's Content, or any act, error, or omission of Customer in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, or other intellectual property or other right; or violation of any applicable law.
14. WARRANTIES
Each party warrants and represents to the other party that it has the complete right to enter into and perform its responsibilities under this Agreement.
15. DISCLAIMER OF WARRANTIES
THE FOREGOING WARRANTIES ARE MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE AND WEB SITE HOSTING SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND MERCHANT METRIX NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR MERCHANT METRIX ANY OTHER LIABILITY IN CONNECTION WITH ANY SOFTWARE OR WEB SITE HOSTING SERVICES PROVIDED UNDER THIS AGREEMENT.
16. LIMITATION OF LIABILITY
MERCHANT METRIX ASSUMES NO RESPONSIBILITY WITH RESPECT TO CUSTOMER'S OR END USER'S USE OF THE SOFTWARE OR WEB SITE HOSTING SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF MERCHANT METRIX IS AWARE OF THE POSSIBILITY THEREOF. MERCHANT METRIX SHALL IN NO EVENT BE LIABLE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY IT FROM CUSTOMER FOR THE SERVICES DURING ANY 12-MONTH PERIOD.
17. NO ASSIGNMENT BY CUSTOMER
Customer may not assign this Agreement without the prior written consent of MERCHANT METRIX, which MERCHANT METRIX may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written permission shall be deemed null and void. MERCHANT METRIX may assign this Agreement, which shall be effective upon written notice provided to Customer.
18. NOTICES
(i) Any notice or other communication ("Notice") required or permitted under this Agreement shall be in writing and either delivered personally or sent by facsimile, overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested, to the address listed above in this Agreement, for MERCHANT METRIX or the address provided in the application form submitted with the payment for Customer; (ii) a Notice delivered personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by facsimile shall be deemed given when transmitted, provided that confirmation of that transmission was received. A Notice sent by overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been sent. A Notice that is sent by certified mail or registered mail shall be deemed given forty eight (48) hours after it is mailed. If any time period in this Agreement commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given; (iii) either party may designate, by Notice to the other, substitute addresses, addressees or facsimile numbers for Notices, and thereafter, Notices are to be directed to those substitute addresses, addressees or facsimile numbers.
19. MISCELLANEOUS
(i) The laws of the State of Oklahoma shall govern the validity and construction of this Agreement and any dispute arising out of or relating to this Agreement, without regard to the principles of conflict of laws; (ii) THE PARTIES SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF OKLAHOMA, AND AGREE TO VENUE IN CLEVELAND COUNTY, OKLAHOMA; (iii) a ruling by any court that one or more of the provisions contained in this Agreement is invalid, illegal or unenforceable in any respect shall not affect any other provision of this Agreement. Thereafter, this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had been amended to the extent necessary to be enforceable within the jurisdiction of the court making the ruling and to preserve the transactions originally contemplated by this Agreement to the greatest extent possible; (iv) the section and subsection headings have been included for convenience only, are not part of this Agreement and shall not be taken as an interpretation of any provision of this Agreement.; (v) this Agreement may be amended, waived, changed, modified or discharged only by an agreement in writing signed by all of the parties; (vi) this Agreement represents the entire understanding of the parties with respect to the subject matter hereof, and there are no representations, promises, warranties, covenants or understandings with respect thereto other than those contained in this Agreement. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any purchase order issued by Customer with respect to the Web Site Hosting Services provided under this Agreement shall not be applicable and that any acceptance of such purchase order by MERCHANT METRIX shall be for acknowledgment purposes only; (vii) failure to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of that term, covenant or condition or of any other term, covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time; (viii) the remedies set forth in this Agreement are cumulative and are in addition to any other remedies allowed by law. Resort to one form of remedy shall not constitute a waiver of alternate remedies; (ix) wherever used in this Agreement, the singular shall include the plural, and the plural shall include the singular. The use of any gender, tense or conjugation shall include all genders, tenses and conjugations; (x) the Parties are independent contractors and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership; and (xi) this Agreement is only between MERCHANT METRIX and Customer, and does not make any third-party a beneficiary of this Agreement, whether known or contemplated by either party. Further, this Agreement does not make Customer a third-party beneficiary of any agreement that MERCHANT METRIX may have with third-parties, nor does this Agreement make MERCHANT METRIX a third-party beneficiary of any agreement that Customer may have with third-parties.