This Internet Terms of Service Agreement (“Agreement”) between SiteWit Corporation, a Florida corporation (“SiteWit Corporation”) and the Customer shall be effective on the date the Customer first makes use of the SiteWit Corporation Internet services (as defined below). Customer’s consent to comply with and be bound by the terms and conditions of this Agreement is deemed to occur upon Customer’s first use of SiteWit Corporation services (as defined below).
This Agreement governs Customer use of the following SiteWit Corporation Internet services (the “SiteWit Corporation Services”), which may be amended from time to time:
1. Pay-per-Click Management Software
2. Website Analytics
3. Customer Relationship Management Software
4. Online Marketing Software
2. License and Service Use
2.1. License; Authorized User. Customer is hereby granted a revocable, non-transferable and non-exclusive license to use the SiteWit Corporation Services. SiteWit Corporation will issue to one Customer employee (“Designee”) an individual logon identifier and password. Only the Designee shall be authorized to legally act on behalf of Customer in connection with the SiteWit Corporation Services. The Designee shall assign any other authorized Customer users (“Authorized User”) a unique logon identifier and password and be responsible for such Authorized User’s access to the SiteWit Corporation Services. Customer shall require the Designee and all Authorized Users to execute appropriate Nondisclosure Agreements and use its reasonable efforts to ensure that each Authorized User will: (a) not disclose such logon identifier to any person or entity; (b) be responsible for the security of his or her logon identifier; and (c) use the SiteWit Corporation Services without notice in accordance with the terms and conditions of this Agreement. Customer will be responsible for advising its Desginee and each Authorized User of his or her obligations under this Agreement and all costs related thereto. SiteWit Corporation reserves the right to deny or revoke access to the SiteWit Corporation Services without notice if it reasonably believes Customer, its Designee, or its Authorized Users are in breach of this Agreement. Customer will be responsible for procuring, at Customer’s sole expense, all equipment or other software, if any, required for use of SiteWit Corporation Services.
2.2. Rights and Limitations on Use of SiteWit Corporation Services. The Customer shall comply with SiteWit Corporation’s rules (as may be in effect during the term of this Agreement) appropriate to any network to which SiteWit Corporation provides access. The Customer is not permitted to post any material that is illegal, libelous, tortuous, indecent, or is otherwise inappropriate, or that is likely to directly or indirectly cause harm to SiteWit Corporation. SiteWit Corporation reserves the right to refuse or terminate service at any time that SiteWit Corporation, it its sole discretion, determines there is a violation of this Section.
Customer agrees that Customer, its Designee, and its Authorized Users will not: (a) sell, lease, license or sublicense the SiteWit Corporation Services; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the SiteWit Corporation Services; (c) disclose or make available the SiteWit Corporation Services to any third party; (d) copy any part of the SiteWit Corporation Services; (e) engage in spamming, mail-bombing, spoofing or any other illegal or unauthorized use of the SiteWit Corporation Services; (f) knowingly introduce into or transmit through the SiteWit Corporation Services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (g) alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the SiteWit Corporation Services; or (h) engage in or permit any action involving the SiteWit Corporation Services that is inconsistent with the terms and conditions of this Agreement.
2.3. Availability. SiteWit Corporation shall use commercially reasonable efforts to keep the SiteWit Corporation Services available on a continuous basis, subject to scheduled downtime for maintenance purposes, or unscheduled maintenance and/or systems outages. The parties acknowledge that the Internet is neither owned nor controlled by any one entity and SiteWit Corporation makes no guarantees that any particular user will be able to access the SiteWit Corporation Services at all times. SiteWit Corporation shall not be liable to Customer for failure of access to the SiteWit Corporation Services.
2.4. SiteWit Corporation’s Licensors. Customer agrees that SiteWit Corporation Services may be provided by third party licensors to SiteWit Corporation. For all SiteWit Corporation Services provided by third party licensors, Customer agrees to abide by any third party licensor terms and conditions which are available upon request and shall be incorporated by reference into this Agreement.
2.5. Changes to SiteWit Corporation Services. Customer acknowledges that SiteWit Corporation may, at its sole discretion, change any third party licensors, or add or delete services from the SiteWit Corporation Services provided it uses reasonable efforts to prevent service interruptions.
2.6. Advertising Networks. SiteWit Corporation Services are intended to support Customer management of pay-per-click or other forms of online advertising. In the course of providing active management services, the SiteWit Corporation Service may interact with third party advertising networks, typically through published application programming interfaces. Customer agrees to allow SiteWit Corporation Service to automatically transmit data to and from such third party advertising networks, or otherwise transmit instructions to any and all advertising accounts that are explicitly associated with SiteWit Corporation Services. As such, Customer warrants all permissions and rights to allow such interactions. Customer also agrees that SiteWit Corporation is not responsible for any liability associated with programmatic communications between the SiteWit Corporation Service and any third party advertising networks on behalf of the Customer. Customer acknowledges that any third party advertising services are provided through outside agreements between you and a designated advertising provider, and not owned or controlled by SiteWit Corporation. All data originating from third party advertising networks is subject to errors or delays in collection and transmission. SiteWit Corporation Service relies on such third party data for analyses and the development of suggested advertising campaign policies, and therefore does not warrant the accuracy or timeliness of the analytic results. Any recommendations or suggestions made by SiteWit Corporation Service are simply opinions based on the best available data from third party advertising networks. Customer assumes all responsibility to verify such opinions directly through their own advertising network accounts before making any advertising decisions.
2.7. Continuing Operations. SiteWit Corporation Services are not designed to provide for ongoing business operations and carry no guaranty of uninterrupted access. Customer bears all responsibility for maintaining adequate backup data and the ability to conduct business, without access to SiteWit Corporation Services, relying solely on direct access to Customer third party advertising network accounts. Furthermore, Customer acknowledges that SiteWit Corporation Service access (and all mediated access to third party advertising networks) may be modified, suspended or terminated at any time for any reason. SiteWit Corporation assumes no liabilities for such service interruptions.
3. Payment for Service Use
3.1. Fees and Taxes. Customer shall be responsible for all sales, use, transfer, privilege, excise and all other taxes and duties relating to this Agreement. Customer shall pay all amounts due under any invoice to SiteWit Corporation in advance via credit card including any application fees or user fees according to SiteWit Corporation’s then applicable fee schedule. Many of the SiteWit Corporation services such as Pay Per Click campaign management and Search Engine Optimization management are monthly services that require periodic payments. Some SiteWit Corporation services are a “pre-buy” service, wherein the Customer elects to buy a set number of months up front together with a discount. Regardless of the type of services that Customer ultimately purchases, Customer authorizes SiteWit Corporation to charge a monthly payment for such services until contract termination. Automatic payment to a Customer credit card or other account may be authorized on a monthly basis, unless terminated by Customer according to the termination provision of 9.3. In the case of failure to pay or a late payment, SiteWit Corporation may without notice suspend access to SiteWit Corporation Services or terminate this Agreement. Any such suspension or termination will not relieve Customer from paying any outstanding fees plus interest and late charges. Customer will be responsible for any costs associated with collecting such fees including attorneys’ fees and court costs.
4. Representation and Warranties
4.1. Representations and Warranties. Customer represents and warrants to SiteWit Corporation that: (a) it has the authority to enter into this Agreement and perform its obligations under this Agreement; (b) Customer, its Designee, and its Authorized Users will not violate any law, or the intellectual property rights of any third party; and (c) Customer is not located in a country where export or re-export of the contents of information received via the Internet is prohibited. Should Customer receive notice of any claim regarding the SiteWit Corporation Services, Customer shall promptly provide SiteWit Corporation with a written notice of such claim. SiteWit Corporation warrants that: (a) SiteWit Corporation has the authority to enter into this Agreement and perform its obligations under this Agreement; and (b) SiteWit Corporation will perform the services required under this Agreement in a professional and workmanlike manner.
5. Disclaimer of Service Warranties
5.1. Disclaimer of Service Warranties. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT:
1. CUSTOMER’S USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. SITEWIT CORPORATION AND ITS SUPPLIERS PROVIDE THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, AND THE CUSTOMER SITE(S) “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
2. SITEWIT CORPORATION AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S EXPECTATIONS.
3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, OR CUSTOMER SITES IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
5.2. Limitation of Liability. IN NO EVENT SHALL SITEWIT CORPORATION AND/OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF SITEWIT CORPORATION OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, ARISING OUT OF OR IN CONNECTION WITH
1. THE USE OR INABILITY TO USE THE SERVICE,
2. THE PROVISION OF OR FAILURE TO PROVIDE SERVICES,
3. ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SERVICE OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE,
4. STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR
5. ANY OTHER MATTER RELATING TO THE SERVICE. SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO CUSTOMER IN SUCH STATES. NOTWITHSTANDING THE ABOVE, IN NO EVENT SHALL SITEWIT CORPORATION’S AGGREGATE LIABILITY TO CUSTOMER AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT CUSTOMER ACTUALLY PAYS TO SITEWIT CORPORATION UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR $500.00, WHICHEVER IS LESS.
5.3. Without limiting the foregoing, neither SiteWit Corporation, nor its suppliers, is responsible for any of Customer’s data residing on the Service or SiteWit Corporation’s suppliers’ hardware. Customer is responsible for backing-up Customer’s data and information that may reside on the SiteWit Corporation Services or SiteWit Corporation’s suppliers’ hardware, whether or not such information is produced through the use of the SiteWit Corporation Services. It is Customer’s responsibility to take the necessary steps to ensure that Customer’s primary means of business is maintained (if applicable).
Customer agrees to indemnify, defend and hold harmless SiteWit Corporation, its managers, directors, officers, employees, independent contractors and agents, and defend any action brought against same with respect to any claim, including reasonable attorneys’ fees and court costs, to the extent that such claim arises out of Customer’s direct or indirect use of the SiteWit Corporation Services.
7. Protection of Confidential Information
The term “Confidential Information” includes any software or data related to software provided by SiteWit Corporation, the logon identifiers and/or passwords provided to Customer, the prices charged, or information delivered under this Agreement. Customer acknowledges and agrees that: (a) the Confidential Information constitutes valuable trade secrets; and (b) it will not disclose, or permit to be disclosed, the Confidential Information without prior written consent. Customer will safeguard the confidentiality of the Confidential Information including, at a minimum, those precautions taken to protect its own Confidential Information. Confidential Information will not include information that is: publicly available; already in the other party’s possession and not subject to a confidentiality obligation; independently developed by the other party without reference to the disclosing party’s Confidential Information; or required to be disclosed by order of a court or other governmental entity.
8. Intellectual Property Rights
8.1. Proprietary Rights. “Proprietary Rights” mean all interests of SiteWit Corporation Services in source code, know-how, business information and any and all rights that are protectable by law and the courts in any and all jurisdictions including, without limitation, copyrights, invention registrations, patents, designs, trade secrets, trademarks, service marks and trade dress. All proprietary rights not expressly granted in the License of 2.1 are reserved to SiteWit Corporation Services, Customer shall use the proprietary rights granted under the License of 2.1 solely for the purpose of accessing and using the services of SiteWit Corporation Services, and any proprietary rights granted in the License of 2.1 are automatically terminated upon the termination of this Agreement. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other Proprietary Rights of SiteWit Corporation Services during the term of this Agreement and/or after the termination of this Agreement.
8.2. Trademarks. SiteWit Corporation Services trademarks, tradenames, service marks, logos, trade dress, other names, marks and domain names, and other related product and service names, design marks and slogans, are the sole and exclusive property of SiteWit Corporation Services, and Customer shall not use any of the foregoing in any advertising, publicity or in any other commercial manner, except with express written permission of SiteWit Corporation Services.
8.3. Copyrights. All works of authorship of SiteWit Corporation Services that are fixed in a tangible medium of expression are copyrighted upon publication. Customer shall not use any of SiteWit Corporation Services copyrighted materials, except as permitted under the License or 2.1, and Customer shall not copy, reproduce, distribute or make derivative works of any copyrighted materials of SiteWit Corporation Services, without the express written permission of SiteWit Corporation Services.
8.4. Suggestions. Any and all feedback, data, questions, survey responses, ideas or other types of suggestion and the like (collectively “Suggestions”) that are made by Customer to SiteWit Corporation Services, whether solicited or unsolicited, shall be the sole property of SiteWit Corporation Services, and SiteWit Corporation Services shall not be obligated to pay Customer anything in return for the Suggestions, even if SiteWit Corporation Services decides to use the Suggestions to improve the services offered to other customers.
8.6. Customer Content. “Customer Content” means text and images of the Customer that are uploaded to SiteWit Corporation servers or otherwise posted to Customer’s website. Customer Content belongs to the Customer, and SiteWit Corporation has no obligation to review Customer Content prior to Customer posting Customer Content on Customer’s website. Customer will not upload any content not owned by Customer or licensed by Customer for use on Customer’s website.
8.7. Copyright Infringement – Software Piracy Policy. The SiteWit Corporation Services may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of federal, state, or local law or regulation, is prohibited, including, without limitation, infringement of trademark, trade secret, or other intellectual property rights. SiteWit Corporation Services has the right to block, suspend access, or otherwise remove, without notice, anything that SiteWit Corporation Services believes, in its sole discretion, violates this provision, and the sole remedy of Customer is to request reversal of any block, suspension or removal after showing to the satisfaction of SiteWit Corporation Services that the Customer has a proper right to use and display the blocked, suspended or removed materials.
9. Term and Termination
9.1. Term. This Agreement will be effective on the date the Customer first makes use of the SiteWit Corporation Services and shall continue thereafter on a month to month basis unless terminated in writing in accordance with this provision, or as otherwise provided herein. The parties agree that email and fax are not acceptable means of notice hereunder this provision.
9.2. Termination by SiteWit Corporation Except as otherwise provided herein, SiteWit Corporation shall have the right, upon thirty (30) calendar days written notice to Customer, to terminate this Agreement without cause. SiteWit Corporation shall have the right to terminate this Agreement immediately for cause if: (a) Customer fails to timely pay SiteWit Corporation any amount due hereunder; (b) Customer materially breaches any term or condition of this Agreement, provided such breach is not cured by Customer within twenty (20) calendar days following SiteWit Corporation’s notice to Customer of such breach; or (c) Customer (i) terminates or suspends its business activities; (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
9.3. Termination by Customer. SiteWit Corporation provides the SiteWit Corporation Customer with a utility to terminate service with SiteWit Corporation and Customer agrees to use the utility to terminate SiteWit Corporation Services as the sole and exclusive method of service termination. Customer may terminate the SiteWit Corporation Services at any time with the use of such utility, provided that the Customer will not be entitled to a refund of any portion of any fees that have been paid to SiteWit Corporation prior to the date of termination, and the SiteWit Corporation Services will continue to be available to Customer through the end of the monthly billing cycle during which termination occurs.
9.5. Survival. Sections 2, 6, 7, 8, 9 and 10 shall survive termination of this Agreement.
10.1. Assignment. This Agreement is not assignable by Customer without SiteWit Corporation’s prior written consent. SiteWit Corporation may assign this Agreement at any time upon written notice to Customer.
10.2. Acts of God. Events of Force Majeure shall excuse performance hereunder specifically including, but not limited to, acts of God, acts of terrorism, civil or criminal disobedience, and/or power, communications, satellite or network failures.
10.3. Waiver. Waiver or modification of this Agreement shall not be effective unless executed in writing and signed by an authorized representative of SiteWit Corporation and Customer.
10.4. Severability. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement.
10.5. Press Releases. SiteWit Corporation shall have the right to use Customer’s name in press releases and similar items.
10.6. Legal Matters. This Agreement shall be governed by the laws of Florida, without regard to conflict of law principles. All disputes arising out of this Agreement shall be brought only in the district and federal courts located in or for Hillsborough County, Florida and the Parties consent to exclusive personal jurisdiction and venue of all courts in Hillsborough County, Florida.
10.7. Non-solicitation. Customer agrees that, during the term of this Agreement and for twenty-four (24) months after the termination, Customer will not directly or indirectly solicit any SiteWit Corporation personnel or consultants.
10.8. Security. The Customer is solely responsible for any breaches of security affecting its servers. In the event of a virus, attack or similar issue, Customer shall be responsible for the cost of damage to the Customer’s server. SiteWit Corporation shall not be responsible for the security of information transmitted over SiteWit Corporation’s equipment or facilities.
10.9. Network Responsibility; Bulk Email. SiteWit Corporation reserves the right to cancel service to any Customer using the SiteWit Corporation Services to adversely affect other SiteWit Corporation customers, including hacking or similar activities harmful to SiteWit Corporation or other customers. SiteWit Corporation will cooperate fully with any civil or criminal litigation arising from the violation of this policy, including violation of the Child Protection Act of 1984 concerning child pornography. Customer understands and agrees that it is responsible for the actions of its clients, and will be liable for illegal material posted by Customer or Customer’s clients. Use of the SiteWit Corporation Services to transmit unsolicited commercial or bulk-e-mail is expressly prohibited, including the hosting of web sites or services on a server, advertised therein. SiteWit Corporation also prohibits the sending of any fraudulent, malicious, harassing, false or misleading electronic communications, including, but not limited to, chain letters, pyramid schemes, or e-mails with forged headers.
10.10. Suspension. If SiteWit Corporation in its sole discretion determines that a Customer’s server has become the source or target of any violation hereunder, SiteWit Corporation reserves the right to suspend network access to that server. SiteWit Corporation will use its best efforts to contact the Customer before suspending network access to the Customer’s server. SiteWit Corporation may, at its sole discretion, contact law enforcement and other agencies regarding these activities. Customers are responsible for all costs relating to such investigation, suspension, administration and handling of their servers before, during and after the suspension period.
10.11. Customer Contact Information. Customer must keep Contact Information, including email, fax and mailing address, current using the self-updating procedures provided by SiteWit Corporation for Customer’s account. SiteWit Corporation is not responsible for attempting to keep Customer Contact Information current by any other method, and
FAILURE OF CUSTOMER TO UPDATE CONTACT INFORMATION MAY DELAY OR PREVENT CUSTOMER FROM RECEIVING IMPORTANT NOTICES AND AMENDMENTS TO THIS AGREEMENT. NOTICE SHALL BE DEEMED DELIVERED BY EMAIL TRANSMISSION, FAX TRANSMISSION INDICATING RECEIPT OK, DELIVERY BY CERTIFIED MAIL WITH RETURN RECEIPT OR INDICATION OF ATTEMPTED DELIVERY TO THE ADDRESS PROVIDED IN THE CURRENT CONTACT INFORMATION BY FEDERAL EXPRESS OR OTHER DELIVERY SERVICE PROVIDER, WHICHEVER METHOD IS CHOSEN BY SITEWIT CORPORATION, AT SITEWIT CORPORATION’S SOLE DISCRETION.
10.12 AMENDMENTS. AMENDMENTS TO THIS AGREEMENT MAY BE MADE BY SITEWIT CORPORATION AT ANY TIME AND WILL BECOME EFFECTIVE THIRTY (30) CALENDAR DAYS AFTER NOTICE IS GIVEN TO CUSTOMER, UNLESS CUSTOMER OBJECTS IN WRITING PRIOR TO THE EXPIRATION OF THIS THIRTY (30) CALENDAR DAY NOTICE PERIOD. IF ACTUAL NOTICE OCCURS AFTER THIS THIRTY (30) DAY NOTICE PERIOD, THEN CUSTOMER MAY OBJECT WITHIN TEN (10) CALENDAR DAYS OF ACTUAL RECIEPT OF NOTICE AND THE TERMS OF THE PREVIOUS AGREEMENT WILL BE REINSTATED EFFECTIVE TEN (10) CALENDAR DAYS AFTER RECEIPT OF THE OBJECTION BY SITEWIT CORPORATION
10.13 Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. Any modification of this Agreement shall only be valid if in writing properly executed by authorized representatives of the parties hereto.