Last Updated: 08-April-2011
SERVICE AGREEMENT
Definitions:
- ”Services” means all consultation, plans, set-up, design, construction, implementation, hosting, updating, updates, and any work provided by Rock & Willy to the Client.
- ”Product” means any website, web page, computer file, artwork or graphic design, script, code, or software application, or any other product that results from the Services of Rock & Willy.
- ”Client” means the person or entity ordering or requesting the Products and/or Services (Products and Services) of Rock & Willy.
- “Rock & Willy” means Rock and Willy Inc.
THIS AGREEMENT (“Agreement”) is made and effective as of the date of acceptance, by and between you (“Client”) and Rock & Willy.
WHEREAS, Rock & Willy owns, distributes and provides various Products and Services for conducting business on the Internet including: website design, website hosting, website updating, graphic design, domain name sales, and the Rock & Willy family of Products and Services (hereinafter collectively referred to as the “Products and Services”).
WHEREAS, Client desires to utilize some or all of the Products and Services to develop, enhance or maintain Client's business and/or presence on the Internet.
NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:
1. Site Services
Rock & Willy agrees to provide to Client the Products and Services agreed upon between Rock & Willy and Client. Rock & Willy is under no obligation to accept orders or requests to supply Products and Services and may refuse to provide such Products and Services for any reason whatsoever. “Signing up” for products and services offered on www.rockwilly.com constitutes a request to supply Products and Services on the part of the Client. Once written acceptance from Rock & Willy is received it may be assumed that the request for Products and Services will be undertaken. Automatically generated email from Rock & Willy does not constitute written acceptance of requests for Products and Services.
2. Payment and Invoicing
2.1 In consideration of the performance of the Products and Services, Client shall pay Rock & Willy monthly in advance the amount set forth in Rock & Willy's customer database and/or website as such records are amended from time to time for the Products and Services during the term of this Agreement.
2.2 Client shall receive a confirmation letter via e-mail at the time Client contracts for the Products and Services, which shall confirm the fees payable to Rock & Willy. Thereafter, Client shall receive a monthly billing statement for the upcoming month. The monthly billing statement shall indicate any changes in fees, which fees shall become effective upon thirty (30) days' notice as set forth in Section 2.4 herein.
2.3 Client is responsible for all activities and charges resulting from Client's use of the Products and Services. Client agrees to pay all fees, bandwidth charges, connect time charges, surcharges, and other charges incurred by Client and set forth in the monthly billing statement. Client acknowledges that no refunds will be given by Rock & Willy in the event that Client's account is terminated by Rock & Willy or Client mid-term. In the event of a breach of security, Client will remain liable for any unauthorized use of the Products and Services until Client notifies Rock & Willy by sending an e-mail with account information to sales@rockwilly.com.
2.4 Current rates for using the Products and Services may be obtained on our web site at www.rockwilly.com. Rock & Willy reserves the right to change fees, surcharges, monthly membership fees or to institute new fees at any time. In addition, Rock & Willy may institute special trial offers, from time to time, that shall be reflected in the confirmation letter sent to Client upon sign up. If Rock & Willy does not receive the full amount of Client's Service account balance within three (3) days of invoice date, a late charge equal to 1.5% per month or highest amount allowed by law per month will be added to Client's bill and shall be due and payable. Client shall also be responsible for all attorney and collection fees arising from Rock & Willy's efforts to collect any unpaid balance of Client's account(s), and Rock & Willy may terminate Client's account immediately without further notice to Client.
2.5 All hosting Products and Services renew automatically. Client may opt out of automatic renewals by contacting sales@rockwilly.com.
3. Responsibilities and Rights of Rock & Willy
3.1 Means of Performance. Rock & Willy shall provide Client with the Rock & Willy Products and Services, as described at www.rockwilly.com hereto. Rock & Willy has the right to control and direct the means, manner, and method by which the host Products and Services are performed.
3.2 Support. Rock & Willy shall provide a reasonable level of support to Client via email or Web page for the term of this Agreement.
3.3 Other Work. Rock & Willy has the right to perform and license products to others during the term of this Agreement. Rock & Willy may elect to electronically monitor the host Products and Services and may disclose any content or records to satisfy any law, regulation, or other governmental request or to properly operate host Products and Services and protect its Clients. Rock & Willy reserves the right to block any site hosted by Rock & Willy that contains any content that Rock & Willy deems in its sole discretion to be unacceptable or undesirable.
4. Responsibilities and Rights of Client
4.1 Client. Client represents and warrants that (i) Client is at least eighteen (18) years of age, (ii) Client possesses the legal right and ability to enter into this Agreement, and (iii) the performance of Client's obligations and use of the Products and Services by Client, its customers and users, will not violate any applicable laws, regulations or the rules and regulations or cause a breach of any agreement with any third parties or unreasonably interfere with other Rock & Willy Clients' use of Products and Services. Client assumes all risks related to processing of transactions related to electronic commerce. Client agrees to provide Rock & Willy with accurate, complete and updated information required by the registration of the Rock & Willy Products and Services (Client Registration Data), including Client's legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). Client agrees to notify Rock & Willy within thirty (30) days of any changes in Client's Registration Data.
4.2 Breach of Warranties. In the event of the breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Rock & Willy will have the right, in its sole discretion, to suspend or terminate immediately any Products and Services.
4.3 Fees and Expenses. Client shall be responsible for payment of all costs, fees and expenses assessed by third parties in the course of being provided Products and Services. Such costs include, but are not limited to, the fees required to register and maintain domain names, which is governed by a separate agreement between Client and a third-party domain name registrar.
4.4 Third-Party Software. Third-party software available through the Products and Services may be governed by separate end user licenses. By using the Products and Services and the third-party software, Client agrees to be bound by the terms of such end user licenses regarding the applicable third-party software. Client consents and authorizes Rock & Willy to delegate the authorizations Client provides to Rock & Willy to its third party service provider(s) as Rock & Willy deems necessary or desirable to provide the applicable Products and Services. Client agrees that the terms and conditions of this Agreement, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement, inure to the benefit of such third party service providers and such third party service providers are deemed to be third party beneficiaries of the Agreement, including any other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement. Client also agrees that all reference to “Rock & Willy” within this Agreement and any incorporated terms are also deemed to include, where applicable, Rock & Willy's agents, such as the third party service providers.
Rock & Willy undertakes to protect the intellectual property and copyright of the owners of digital material used in its websites. In some cases, acknowledgements or links to third-party websites may be required. If the Client does not agree to this then the applicable images and material may not be used.
4.5 Advertising, Solicitation, and Client Name Harvesting. Client may not use the Products and Services to send unsolicited advertising, promotional materials, or other forms of solicitation to the Rock & Willy clients or other Internet users unless Client receives the express permission of such individuals. Client may not use the means of unsolicited advertising to advertise a site hosted on the Rock & Willy network. Client may not use the Products and Services to collect or “harvest” user-names of Rock & Willy clients or other Internet users without the expressed prior permission of the member. Rock & Willy reserves the right to block or filter mass email solicitations sent from sites hosted on the Rock & Willy network.
4.6 Management of Site. Client shall be solely responsible for all content available on or through its site, and shall at all times be subject to the terms of this Agreement, Rock & Willy's then-standard Terms of Service (“TOS”) and any generally applicable guidelines and service standards published by Rock & Willy. Client warrants that its site hosted on the Rock & Willy network (i) will conform to the Rock & Willy TOS attached hereto as Exhibit A; (ii) will not infringe and will not contain any content that infringes on or violates any copyright, U.S./Canadian patent or any other third-party right; and (iii) will not contain any content which violates any applicable law, rule or regulation. Rock & Willy shall have no obligations with respect to the content available on or through any site hosted on the Rock & Willy network, including, but not limited to, any duty to review or monitor any such content. Rock & Willy reserves the right to block any site that violates any of the above-stated terms, or which in Rock & Willy's sole discretion, Rock & Willy deems objectionable or offensive, or otherwise violates a law or Rock & Willy policy, or, in the alternative, to terminate this Agreement in accordance with Section 7.3 herein.
4.7 Compliance Laws. Client agrees that it will use the Products and Services only for lawful purposes and in accordance with this Agreement. Client will comply at all times with all applicable laws and regulations and the TOS, as updated by Rock & Willy from time to time. The TOS are incorporated herein and made a part hereof by this reference. Rock & Willy may change the TOS, with notice, which notice may be provided by posting such new TOS at the Rock & Willy Site. Client may request a current copy of the TOS by sending or faxing a request to Rock & Willy. Client agrees that it has received, read and understands the current version of the TOS.
4.8 Proprietary Rights. Unless otherwise specified, all work performed hereunder by Rock & Willy, is the property of Rock & Willy, and all title and interest therein shall vest in Rock & Willy unless otherwise agreed upon in writing by Rock & Willy and the Client. To the extent that title to any such works may not, by operation of law, vest in Rock & Willy all rights, title and interest therein are hereby irrevocably assigned to Rock & Willy. All such materials shall belong exclusively to Rock & Willy, and Rock & Willy shall have the right to obtain and to hold in its own name, copyrights, trademarks, registrations, or such other protection as may be appropriate to the subject matter; and any extensions and renewals thereof. Client agrees to give Rock & Willy and any person designated by Rock & Willy such reasonable assistance, at Rock & Willy's expense, as is required to perfect the rights defined in this paragraph.
5. Limitation of Liability, No Other Warranty, and Disclaimer
5.1 Limitation. In the event that any limited guarantees are provided by Rock & Willy, such limited guarantees are null and void if Client fails to follow Rock & Willy's TOS and other policies or otherwise breaches this Agreement in any respect.
Under no circumstances, including but not limited to a negligent act, will Rock & Willy or its affiliates, agents, employees, or licensors (including third party service providers) be liable for any damages of any kind that result from the use of, or the inability to use, Products and Services, even if any such party has been advised of the possibility of such damages.
Rock & Willy will not be liable for any loss (whether direct or indirect) caused to the Client by any act or omission by any third party who provides services to Rock & Willy which form part of the Products and Services provided to the Client, or by any third party’s malicious act towards (or hacking of) any assets of Rock & Willy or any third party provider, or any malicious act towards (or hacking of) the Products or Services provided to the Client.
In no event will Rock & Willy or its third party service providers be liable to Client or any third Party for any tort, contract or any other liability arising in connection with the use of the Products and Services, or reliance on any information or Products and Services provided by Rock & Willy. Rock & Willy and its third party service providers will under no circumstances be liable to Client and/or any third party, regardless of the form of action, for any loss of profits, goodwill, use, data or other intangible losses, or any direct, indirect, special, consequential, incidental or punitive damages whatsoever, even if Rock & Willy or its third party service providers has been advised of the possibility of such damages, resulting from: (i) the use of or the inability to use the Products and Services; (ii) the timeliness, deletion, misdelivery, or failure to store any user date, data, communications or personalization settings; (iii) the cost of getting substitute goods and Products and Services resulting from any products, data, information or Products and Services purchases or obtained or messages received or transactions entered into, through or from the Products and Services; (iv) statements or conduct of anyone on the Products and Services; (vi) the use, inability to use, unauthorized use, performance or non-performance of any third party, even if the third party has been advised previously of the possibility of such damages; or (vii) any other matter relating to the Products and Services. Client agrees that Client will not in any way hold Rock & Willy responsible for any selection or retention of, or the acts or omissions of, third parties (including third party service providers) in connection with the Client Products and Services.
Because some states, provinces, or countries prohibit the limitation of liability for consequential or incidental damages, in such states, provinces, or countries the limitation of liability only with respect to consequential or incidental damages may not apply to Client, and the respective liability of Rock & Willy and its third party service providers, employees, distributors and agents is limited to the greatest extent allowable under applicable law in those states, provinces, or countries.
In the event that a court or arbitration panel, as the case may be, should hold that the limitations of liability or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any of Client's remedies under this Agreement fail, then Client expressly agrees that under no circumstances will the total, aggregate liability of Rock & Willy and its third party service providers, employees, distributors, agents or affiliates, to Client or any party claiming by or through Client for any cause whatsoever exceed $300 (U.S.) regardless of the form of action and whether in contract, statute, tort or otherwise.
5.2 No Other Warranty. Rock & Willy does not monitor or exercise control over the content of the information transmitted through its facilities. Use of the Products and Services or any information that may be obtained there from is at Client's own risk. The Products and Services are provided on an “as is” basis, and Client's use of the Products and Services is at its own risk. Rock & Willy does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. Rock & Willy does not represent or warrant that the Products and Services will be uninterrupted, error-free, or completely secure.
5.3 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. Rock & Willy does not and cannot control the flow of information to or from Rock & Willy's network and other portions of the Internet. Such flow depends in large part on the performance of the Internet Products and Services provided or controlled by third parties. At times, actions or inactions of such third parties may impair or disrupt Client's connections to the Internet (or portions thereof). Rock & Willy cannot guarantee that such events will not occur. Accordingly, Rock & Willy disclaims any and all liability resulting from or related to such events.
6. Indemnification
Client agrees to indemnify, defend and hold Rock & Willy and its affiliates, agents, employees, and licensors (including the third party service providers) harmless from any and all claim, demand, loss, costs or expense, including attorneys' fees, made by any person arising out of Client's violation of this Agreement, State or Federal Securities laws or regulations, or any other person's rights including but not limited to infringement of any copyright or violation of any proprietary or privacy right.
7. Termination
7.1 Without Cause. This Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than five (5) days' prior email notice of termination. No matter which party terminates the Agreement pursuant to this Section 7.1, any and all payment obligations of Client under this Agreement for Service(s) provided through the date of termination will immediately become due, and Client shall be required to prepay for any portion of the Products and Services that have not been paid for and are to be rendered during such five (5) day period.
7.2 For Cause. In addition to any other rights it may have under this Agreement or applicable law, Rock & Willy may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) a default in payment, or (ii) Client's breach or failure to comply with the TOS or other policies of Rock & Willy. Client may terminate this Agreement if Rock & Willy breaches any material term or written notice of same. If this Agreement is terminated by Rock & Willy under this Section 7.2, all balance of the then current term shall immediately become due and payable. In addition to the foregoing, Rock & Willy reserves the right to prohibit any conduct or to remove any materials or content in violation of the TOS or which Rock & Willy believes in its sole discretion to be illegal or potentially harmful to others or may expose Rock & Willy to harm or liability.
7.3 No Liability for Termination. Neither party will be liable to the other for any termination or expiration of any Products and Services of this Agreement in accordance with its terms.
7.4 Survival. The following provisions will survive any expiration or termination of the Agreement: Section 4, 5, 6, 7, and 8.
7.5 IP Address. Upon expiration, cancellation or termination of this Agreement, Client shall relinquish any Internet protocol (“IP”) numbers, address or address blocks assigned to Client by Rock & Willy or its network Products and Services supplier (but not the URL or top level domain connected therewith). Rock & Willy reserves, in its sole discretion, the right to change or remove any and all such IP numbers, addresses or address blocks.
8. General
8.1 Assignment. Client may not assign this Agreement or any of Client's rights or obligations hereunder without the prior written consent of Rock & Willy, and any such attempted assignment shall be void. This Agreement shall be binding upon the parties' respective successors and permitted assigns.
8.2 Notices. Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below (1) on the delivery date if delivered personally to the party, or a representative of the party; (2) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, whether or not received, if sent by mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile.
If to Rock & Willy:
sales@rockwilly.com, facsimile: 888-977-0524
If to Client:
To Client address provided at account set-up.
8.3 Governing Law. This Agreement, and all future agreements Client may enter into with Rock & Willy, unless otherwise indicated on such other agreement, will be governed by the laws of the Province of Alberta, Canada, without regard to conflicts of law principles thereof. This is the case regardless of whether you reside or transact business with Rock & Willy in Alberta or elsewhere. Unless a dispute would be governed by an applicable arbitration clause, Client agrees to submit to the personal and exclusive jurisdiction of the courts located within the city of Lethbridge, Alberta. If any part of the Agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
8.4 Modifications. No modifications, amendment, supplement to or waiver of this Agreement or any exhibit hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
8.5 Waiver. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.
8.6 Severability. In the event any one or more of the provisions of the Agreement or any exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
8.7 Force Majeure. Rock & Willy and its affiliates, agents, employees, or licensors (including third party service providers) shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure to transport, accident, ware, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for fifteen (15) days, the other party may terminate this Agreement without penalty and without further notice.
8.8 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
8.9 Terms of Products and Services. Client agrees to be bound by Rock & Willy's TOS for all Products and Services and products used by Client. The current TOS can be found on Rock & Willy's website at www.rockwilly.com. Should Client disagree with any updates to Rock & Willy's TOS, it is Client's responsibility to notify Rock & Willy of Client's desire to terminate their Products and Services immediately.
8.10 Implied Agreement. CONTINUED USE OF THE PRODUCTS AND SERVICES AND/OR PRODUCTS CONSTITUTES IMPLIED AGREEMENT WITH THIS AGREEMENT AND ROCK & WILLY'S TOS IN THEIR ENTIRETY. BY USING THE PRODUCTS AND SERVICES, CLIENT AGREES TO BE BOUND BY ALL TERMS ASSOCIATED WITH SAID PRODUCTS AND SERVICES, INCLUDING THIS AGREMEENT AND THE TOS.
CLIENT'S ONLY RECOURSE IN THE EVENT OF A DISAGREEMENT IS TO TERMINATE THIS CONTRACT IMMEDIATELY IN ACCORDANCE WITH SECTION 7 HEREIN.
8.11 Entire Agreement. This Agreement, and the exhibits reference herein, sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which are different from or in which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.
8.12 No Party Deemed Drafter. In the event that any provision hereof is construed by a court of law or equity or an arbitrator, no provision herein shall be construed more harshly against either party as drafter.
Exhibit A: Rock & Willy Terms of Service (TOS)
Rock & Willy's current Terms of Service are available at the following URL: http://www.rockwilly.com/terms_of_service.html or by clicking here
Questions
Any questions regarding this agreement should be sent to Rock & Willy's sales department prior to signing up for service.