For the fees stated on the face hereof or as otherwise stated herein, Teck Development will use its best efforts to furnish during its normal operating hours the following Services: (a) website development; (b) custom programming services; and (c) training. Ongoing services including website maintenance, server administration, help desk and technical support shall be procured via a separate agreement.
2.1 Teck Development Obligations. For all Orders accepted by Teck Development and subject to this Agreement, Teck Development agrees to provide the Services and the applicable support listed, subject to and in accordance with Teck Development’s Agreement.
2.2 Client Obligations. The Client agrees to (a) pay when due the fees for the Services and applicable charges; (b) use reasonable security precautions in light of Client use of the Services; (c) cooperate with Teck Development’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement; (d) keep Client’s billing contact, information, and other account information up to date; (e) immediately notify Teck Development of any unauthorized use of Client’s account or any other breach of the security of the Services; provided, that in the event of a dispute between the parties regarding the interpretation of applicable law, then Teck Development ‘s reasonable determination will control; (f) pay all applicable federal, state, and local sales, use, value added, surcharges, excise, license, and any other taxes assessed with respect to the Services; and (g) provide Teck Development with accurate factual information to help Teck Development determine if any tax is due with respect to the provision of the Agreement, and if Teck Development is required by law to collect taxes on the provision of the Services, then the Client must pay Teck Development the amount of the tax that is due.
- ACCEPTABLE USE POLICY.
By agreeing to the terms and conditions of this Agreement, the Client agrees to Teck Development ‘s Acceptable Use Policy, which is expressly incorporated herein by reference. This Acceptable Use Policy (the “AUP”) governs the Client’s use of all products and services (collectively, the “Services”) offered by Teck Development, as may be further described in any written proposal submitted by Teck Development to the Client or any service order forms submitted by the Client and accepted by Teck Development. This AUP applies to the Client and the Client’s employees, agents, contractors, or other users who obtain Services from Teck Development (each such person or entity being a “User”). BY REGISTERING FOR AND USING THE SERVICES, THE CLIENT ACKNOWLEDGES THAT HE/SHE HAS READ THIS AUP AND AGREE THAT ALL CLIENT’S USERS WILL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AUP.
3.1. Teck Development ‘s products and services may only be used for lawful purposes. Users may not use Teck Development ‘s Products or Services to engage in, foster, or promote illegal, abusive, or irresponsible behavior.
3.2 Intellectual Property Rights. The Client warrants, represents, and covenants to Teck Development that: (a) the Client possess the legal right and ability to enter into this Agreement; and (b) the Client and the Client’s Users will use the Services only for lawful purposes and in accordance with this Agreement.
3.3 Third Party Products. For the Client’s convenience, Teck Development may provide the Client access to Third Party Products through certain Third Party Vendors. Neither Teck Development nor any Third Party Vendor makes any representations or warranties of any kind, express or implied, regarding any Third Party Products. The Client agrees that he/she will not (a) copy any license keys or otherwise decrypt or circumvent any license key, (b) remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on or during use of any Third Party Product, or (c) reverse engineer, decompile, or disassemble any Third Party Product, except to the extent that such activity is expressly permitted by the Third Party Vendor or applicable law. The Client agrees to observe the terms of any license or applicable end user subscriber agreement for Third Party Products and Teck Development will not have any liability for the Client’s use of any Third Party Products or any violation of any license agreements that govern such Third Party Products.
3.4 Security. Teck Development is not responsible for any security breaches affecting servers or accounts under the Client’s sole control. If the Client’s server is responsible for or involved in an attack on, or unauthorized access into, another server or system, then the Client will notify Teck Development immediately, and Teck Development will have the right to respond accordingly including, without limitation, the right to identify, isolate, and block the source of the attack.
- PAYMENT FOR SERVICES.
4.1 The services described in the Investment Overview Section hereof shall be performed for the service fee specified. Additional work shall be subject to standard or reduced hourly rates as stated in the investment overview section of this agreement.
4.2 In addition to the fees due under this Agreement, Client shall pay to Teck Development the amount of any federal, state or local sales, use, excise or similar taxes applicable.
4.3 Teck Development shall be entitled to modify its fees and any other terms of this Agreement on a semi-annual basis so long as it does not increase its cumulative rate of increased fees by more than an average of fifteen percent (15%) per year and it gives at least thirty (30) day notice of such change.
4.4 In order for Teck Development to keep its rates low, payments must be made promptly. Bills will be deemed delinquent and assessed a $75 charge if payment is not received within thirty (30) days after the due date. If an amount remains delinquent more than forty-five (45) days after its due date, an additional ten percent (10%), or the highest rate allowable by law, will be added for each month of delinquency.
4.5 For recurring billing, Services are billed one month in advance and payments are due thirty (30) days of the date of invoice.
4.6 The Client will be responsible for any costs Teck Development incurs in enforcing collection of any amounts due under this Agreement, including, without limitation, reasonable attorney’s fees, court costs, or collection agency fees.
4.7 The Client will be responsible for costs due to insufficient funds and other charges that are incurred in connection with payment processing for the Client’s account. Teck Development has the right to charge the Client Non- Sufficient Funds (NSF) fees if the Client’s payment method is check (cheque) and it was returned by the bank due to insufficient funds.
4.8 If the Client pays by credit card or ACH or EFT, then Teck Development will charge the Client’s credit card or bank account (as applicable) to pay for any charges that may apply to the Client’s account.
- REFUND AND DISPUTES.
Except where expressly provided in this Agreement, all payments to Teck Development are nonrefundable. You must report any overcharges or billing disputes to Teck Development within 45 (forty-five) days of the time in which the Client became aware, or should have become aware, of the existence of the overcharge or dispute. In the event that the Client would like to cancel their subscription they must inform Teck Development (in writing) of their intention to cancel their subscription at least 30 (thirty) days before the next scheduled payment in their billing cycle to avoid being charged for the following month.
- DATA RETENTION POLICY.
Teck Development makes no guarantees about retaining any data stored on Teck Development ‘s systems or servers following expiration or termination of this Agreement. Teck Development will typically delete such data (a) seven days following termination of any Teck Development Managed Hosting Services by either the Client or Teck Development or (b) on the Client’s next billing date following termination of any Teck Development Dedicated Hosting Services by either the Client or Teck Development. The client may request a copy of all data, which will need to be manually copied by Teck Development staff to a portable hardware unit. All data will maintain its original format. The Client will be responsible for all reasonable labor and material costs associated with the manual process of data transfer. Unless data backup is requested, the Client will not have access to the Client’s data stored on Teck Development’s systems or servers after seven days following a termination.
Teck Development may modify any of the terms and conditions contained in this Agreement at any time at its sole discretion. If the Client does not agree to the terms of any modification, the Client may terminate the Agreement without any further liability by providing written notice to Teck Development within 30 days of the posting of any modifications by Teck Development.
- WARRANTY DISCLAIMER.
8.1 Teck Development warrants to Client that the service will be performed in a timely and professional manner.
8.2 Except as set expressly provided in Teck Development’s Agreement, Teck Development’s is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications, or third-party supplier failure).
- LIMITATION OF LIABILITY.
Except for a party’s indemnification obligations under this agreement, neither party will be liable to the other party, or any user or any third party, for any loss of profits or revenues or cost of replacement services (whether direct or indirect,) nor any indirect, incidental, consequential, punitive, or special damages of any kind arising from the use of the services, even if such parties have been advised of the possibility of such damages. Except for Teck Development’s indemnification obligations under this agreement, Teck Development’s liability to the Client for any reason and upon any cause of action, is limited to the amount the Client actually paid to Teck Development under this agreement during the three months immediately preceding the date on which the claim accrued. This limitation applies to all causes of action in the aggregate, including, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, or other torts. Nothing in this agreement is intended to exclude or limit either party’s liability with respect to those liabilities that cannot be legally excluded or limited even if any other provision may suggest otherwise.
9.1 Customer Indemnity. The Client agrees to indemnify, defend, and hold harmless Teck Development, its employees, officers, directors, partners, representatives or any such entity, from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorney’s fees) asserted against or suffered by Teck Development arising out of any breach of this Agreement by the Client, the Client’s Users, or the Client’s customers.
9.2 Teck Development Indemnity. Teck Development agrees to indemnify, defend, and hold harmless Client from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorneys’ fees) asserted against or suffered by Client arising out of any claim alleging that the Services as provided by Teck Development infringe any third party’s intellectual property rights.
- MONITORING USER ACTIVITY.
Users voluntarily engage in the activity of Internet use and bear the risks associated with that activity. Teck Development exercises no control over and expressly disclaims any obligation to monitor its customers and other Users with respect to breaches of this Agreement or any content of the information made available for distribution.
- TERM AND TERMINATION.
The initial term of this Agreement shall commence on the Effective Date, as stated on the face hereof, and shall continue until project completion. The initial and any subsequent terms may be terminated by Teck Development: (a) upon a breach by Client of its payment obligations under Section 3 hereof and a failure to cure such breach within forty-five (45) days after receiving written notice thereof, or any other breach of this Agreement or any other Agreement between the parties and a failure to cure such breach within forty-five (45) days after the receipt of written notice thereof; or (b) upon the occurrence of any one or more of the following events of default: (1) the entering into or filing by Client of a petition, arrangement or proceeding seeking an order for relief under applicable bankruptcy or insolvency laws, an assignment for the benefit of its creditors, readjustment of debt or Client’s dissolution or liquidation; (2) the filing or commencement against Client of any application, petition, action, or other proceeding seeking any of the relief, actions, or status described in subparagraph (1) hereof and the entering of a judgment, decree or order for relief granting any such relief, action or status which remains undismissed for a period of thirty (30) days or more; or (3) the insolvency of Client. Upon termination, all rights and obligations of the parties shall immediately terminate, except for Client’s obligation to pay any charges due for services rendered prior to termination.
- USE OF NAME.
Client gives Teck Development the right to use Client’s name in advertising, publicity and other promotional endeavors.
This Agreement constitutes the entire Agreement between the parties with respect to the transactions contemplated herein.
13.1 If any provision contained in this Agreement shall for any reason be held invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such provision had never been contained herein; however, notwithstanding the foregoing, either party may terminate this Agreement consistent with its terms if by operation of this paragraph the rights or obligations of that party are substantially altered thereby. This Agreement and its performance shall be governed by, subject to and construed in accordance with the laws of the State of Florida, without regard to conflict of laws principles. Any action to enforce this Agreement shall be brought in the appropriate state or federal court (Orange County, Florida), and all parties to this Agreement consent to the jurisdiction of such court.
13.2 This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Client may not transfer, assign or otherwise dispose of any of the rights and obligations granted or imposed upon it under this Agreement without the prior written consent of Teck Development, such consent not to be unreasonably withheld or denied.
13.3 Unless otherwise specified in this Agreement, all notices and other communications permitted or required by the provisions of this Agreement shall be in writing and shall be mailed or delivered to the other party at the address shown below the signature of such party to this Agreement or at such other address as either party may designate in writing to the other party during the term of this Agreement and shall be effective as of the date stated on the confirmation of receipt.