Special Terms and Conditions (USA)
Effective Data: October 1, 2018
Special Terms and Conditions
These terms and conditions shall constitute an integral part of the Agreement between the Customer and the Company. These terms and conditions shall be read in conjunction with the General Terms and Conditions and other applicable guideline, policy, notice, etc. Any previous communications, representations or agreements are superseded by this Agreement.
1. RESPONSIBILITIES OF THE COMPANY
The Company agrees to design and develop the Website in accordance with the specifications which are set forth in the attached Schedule A or on the Service Order Schedule and other instructions and materials in written provided by the Customer from time to time during the terms of this STC (the “Specifications”), and the development schedule set forth in the attached Schedule B (the “Development Schedule”) or on the Service Order Schedule.
“Website” in this STC means the website designed and developed by the Company per the Customer’s request.
2. WEBSITE DEVELOPMENT
2.1 Design. The design of the website shall be in substantial conformity with the Specifications.
2.2 Materials Provided by the Customer. Website content, including but are not limited to text, images, sound, or animations (“Material”) will be supplied by the Customer unless copywriting services have been separately ordered and purchased by order form. The Materials shall be provided in soft format. The Customer shall provide all the material within ten (10) calendar days from the signing of the Agreement or the Service Order Schedule for the Company to timely meet the requirements of the Development Schedule or otherwise agreed by the Parties. The Materials showed in the Website shall not be obscene, offensive, abusive, defamatory, threatening, indecent, menacing, misleading or discriminatory, or otherwise intended to cause distress, annoyance, inconvenience, worry or upset to the public.
2.3 Accessibility during Development. Throughout the development of the prototype and the final Website, the Website shall be accessible to the Customer upon prior written request. Until the Customer confirms the final Website, none of the web pages for the Website will be accessible to end users.
2.4 Delivery. Upon the Customer’s confirmation of the final Website, the Company shall deliver such Website to Customer. The Customer has only the right to use the Website subject to other clause and terms contained herein. No source code will be delivered to the Customer unless otherwise agreed. The Company is entitled to refuse such delivery of Website if all the payment has not been fully received.
3. DOMAIN NAME
The Website shall have the domain name(s) designated by the Customer. The Customer shall inform the Company the registered domain name within ten (10) calendar days from signing of the Agreement or the Service Order Schedule, or the Company will register the domain name(s) designated by the Customer on behalf of the Customer, if such Service purchased by the Customer. Unless otherwise agreed in writing, the Customer shall be listed as the registrant, administrative and technical contact for the domain name. If by agreement of the Parties, the Company is listed as the registrant or technical or administrative contact for the domain name, the Company shall maintain and renew registration of the domain name(s), and pay any applicable fees associated therewith, throughout the term of this Agreement. The Customer shall reimburse the Company for any fee incurred by the Company in the maintenance and renewal within fourteen (14) working days after such request. Website displayed at such domain name maybe blocked/suspended if the Customer fails to make the reimbursement as required.
4. WEBSITE HOSTING
4.1 From and after the website delivery date, the Company will provide the Customer with the Services for hosting the Website on the World Wide Web portion of the Internet (the “Hosting Services”). The Company’s web server maintaining the Website (the “Host Server”) will be located within the Company’s facility or a hosting provider or colocation facility subcontracted by the Company. The Company shall provide the Hosting Services so that the Website is accessible to third parties via the World Wide Web portion of the Internet as specified herein.
4.2 The Customer’s Responsibilities. The Customer is solely responsible for all updates or modifications to the Website content.
4.3 The Company’s Responsibilities.
4.3.1 Availability. The Company will make the Website available on the World Wide Web and the Company will use commercially reasonable efforts, pursuant to the terms and conditions set forth in this Agreement, to make the Website accessible 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 will use its best efforts to ensure reasonable response times for users accessing the website. The Company shall incrementally backup the Website and store the backup materials in a safe and secure environment.
4.3.2 Security. The Company shall endeavor to keep the site files and data as secure as possible, but makes no warranties about the security of any site code or data. Should the Website files or content, whether provided by the Company or the Customer, become compromised through any manner of security breach or exploit, the Company shall, at its sole discretion, take down the site, repair the files and data, and bill the Customer for the work at prevailing hourly rates. The Company will communicate with the Customer regarding the nature of the breach or exploit and the nature of the resolution.
4.3.3 Consequence of termination/expiration of this Agreement.
18.104.22.168 In the event the Website is displayed at the domain name which the Company is listed as the registrant or technical or administrative contact, the Company may remove all the Website content and destroy all the site files and data immediately unless otherwise agreed by the Parties.
22.214.171.124 In the event the Website is displayed at the domain name registered by the Customer, subject to the Clause 5 below, the Company may use its best effort to deliver the Customer with all the site files and data which belonging to the Customer, and the Customer acknowledges that it may not be able to take full advantage of the Website.
5. INTELLECTUAL PROPERTY
5.1 Material provided by the Customer. The Company acknowledges, understands and agrees that the material provided by the Customer is proprietary, original work of authorship of the Customer, or licensed or duly assigned to the Customer. The Company is granted a right to use, such Material for the purpose of this STC.
5.2 Customer acknowledges, understands and agrees that Company may use its own preexisting work, open source, and/or may purchase third party’s license of certain product/service that are necessary for Company to develop the Website. Such preexisting work, open source and/or license may include, but are not limited to server-side applications, clip art, “back-end” applications, music, images, algorithms and modules. (“Outside Content”). Customer further acknowledges, understands and agrees that such Outside Content is owned by Company and/or such third parties and cannot be transferred to Customer and is hereby specifically not transferred to Customer and shall remain the property of Company and/or such third parties. Outside Content which is owned and/or purchased by Company may be used in the development of other websites.
5.3 Subject to Clauses 5.1 and 5.2 above, the Customer is granted an exclusive, non-transferable right of using the Website.
5.4 The Company retains all rights to the Hosting Services and any computer hardware, software, telecommunications or other equipment, including the Host Server. At no time shall the Customer have any ownership, property, or any other rights in, nor file any lien on, any of the Hosting Services or the Company equipment.
5.5 The Customer understands and agrees that the Company may make reference to the Customer in its website and/or display the delivered Website for demonstration purposes.
The Services provided will be charged in accordance with the terms and conditions set forth on the attached Schedule C or on the Service Order Schedule.
7. WARRANTIES AND INDEMNIFICATION
7.1 The Customer represents and warrants that:
(a) the content, material, messages and data transmitted or made available through the Services (including the Material) do not and shall not contain any material that is inaccurate or that violates any Applicable Law, rule or regulation or that infringes upon any common law or statutory right of any person or entity, including, without limitation, any proprietary, contract, moral, privacy or publicity right, copy right, patent, trademark, trade secret, or any other third party right, and the Customer owns the Material or otherwise has the right to place the Material on the Website;
(b) the content, material, message and data transmitted or made available through the Services ( including the Material) do not and shall not contain any material that, in the Company’s good faith judgment, is obscene, threatening, malicious, defamatory, libelous, slanderous, pornographic or which otherwise could expose the Company to civil or criminal liability;
(c) it has obtained any and all authorization(s) necessary for hypertext links from the Website to other third party’s Website; and
(d) it shall not use the Services to engage in any other offensive or harassing conduct, or conduct that unreasonably interferes with the Company’s ability to manage its network facilities or provide similar services to other customer.
In addition to any other remedy set forth in this Agreement, the Company reserves the right to immediately remove from the Website any material which violates any of the above warranties and/or to immediately suspend or disable any services necessary to remedy any violation or potential violation of the above warranties.
The Customer agrees to indemnify, defend and forever hold harmless the Company and any of its parent and affiliated companies, and the present and former officers, members, shareholders, directors, employees, representatives, attorneys, insurers and agents of any of these, and their successors, heirs and assigns (each, an “Indemnified Party”) from and against any and all losses liabilities, claims, costs, damages and expenses (including reasonable attorneys’ fees, disbursements and administrative or court costs) that (i) arise directly or indirectly out of any breach or alleged breach of its representations and warranties under this Agreement, or (ii) are the result of its willful misconduct. The Indemnified Party shall promptly provide the Customer with written notice of any claim which it believes falls within the scope of this paragraph and shall cooperate with the Customer in the investigation and defense of the same. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the Customer shall control such defense and all negotiations relative to the settlement of any such claim and 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.