General Web Apps ("GWA") has developed certain technology, as further described below, to provide a service that provides the ability for any website to quickly and easily add a Hot Links page. The company identified during registration ("Customer") desires to subscribe to the GWA Service (as defined below) in order to place it on its web site for the use by the visitors to that web site, and GWA desires to provide access to the GWA system and provide the GWA Service on the terms and conditions set forth herein.
GWA is willing to provide access to the service and documentation described below to Customer only on the condition that Customer accepts all of the terms in this Subscription Agreement ("Agreement"). You hereby agree that you enter into this Agreement on behalf of Customer and that you have the authority to bind Customer to the terms and conditions of this Agreement.
By clicking on the "I Agree" button on the web page http://generalwebapps.com/client/join, Customer acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. If Customer does not agree to any of the terms below, GWA is unwilling to provide access to the GWA Service to Customer, and you should discontinue the registration process.
1. Definitions. As used in this Agreement:
1.1 "End User" is a user of your site who uses the Hot Links page on your site.
1.2 "Customer Data" means any electronic data or information contained in any database, template or other similar document submitted by Customer through the GWA Service.
1.3 "Customer Data" means any electronic data or information contained in any database, template or other similar document submitted by an End User through the GWA Service.
1.4 "Documentation" means the user manuals, handbooks, online materials, specifications or forms provided by GWA that describe the features, functionality or operation of the GWA System.
1.5 "Fees" means the fees paid by Customer prior to accessing the GWA Service.
1.6 "GWA Service" means the online Hot Links service delivered by GWA to Customer using the GWA System.
1.7 "GWA System" means the technology, including hardware and software, used by GWA to deliver the GWA Service to Customer in accordance with this Agreement.
1.8 "Subscription Administrator" means the individual assigned by Customer having responsibility for all administrative and billing matters relating to Customer's use of the GWA Service, as identified during the online registration process.
1.9 "Term" means the duration of this Agreement.
1.10 "Customer ID" means the unique identification name and password assigned to each Customer for access to the GWA Service.
2.1 Subscription to the GWA Service. Subject to the terms of this Agreement, GWA hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the GWA Service.
2.2 Service Levels. Subject to the terms of this Agreement, GWA shall use commercially reasonable efforts to: (a) maintain the security of the GWA Service, and (b) make the GWA Service generally available 24/7 (24 hours a day, 7 days a week), except for: (i) planned downtime, which shall be any period outside of the hours of 6 am to 9 pm, Pacific Time, Monday through Friday and 8 am to 5 pm Pacific Time, Saturday, Sunday and Holidays, for which GWA uses commercially reasonable efforts to give eight (8) hours or more notice that the GWA Service will be unavailable; and (ii) downtime caused by circumstances beyond GWA's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications or network failures or delays, computer failures involving hardware or software not within GWA's possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks), but only if such unavailability results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes.
2.3 Security. GWA has implemented Appropriate Security Measures (as hereinafter defined) and maintains the GWA Service at reputable third party Internet service providers and hosting facilities. "Appropriate Security Measures" means commercially reasonable technical, physical and procedural controls to protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by GWA, whether by accident or otherwise. However, Customer acknowledges and agrees that, notwithstanding such Appropriate Security Measures, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Platform Services and Customer Data. Accordingly, GWA cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.
3.1 Access and Security Guidelines. Customer shall be responsible for ensuring the security and confidentiality of its Customer ID. The Customer ID may be assigned to and used by only one individual User. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the GWA Service, and will notify GWA promptly of any such unauthorized use. Customer will not use its access to the GWA Service to: (a) harvest, collect, gather or assemble information or data regarding End Users without their consent; (b) knowingly interfere with or disrupt the integrity or performance of the GWA Service or the data contained therein; or (d) harass or interfere with another Customer's use and enjoyment of the GWA Service. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in its use of the GWA Service.
3.2 Customer Data. Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. GWA may take remedial action if Customer Data violates this Section 3.2; however, GWA is under no obligation to review Customer Data for accuracy or potential liability.
3.3 Use Restrictions. Customer is responsible for all activities that occur under Customer's User accounts. Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the GWA System; (b) interfere in any manner with the operation of the GWA Service or the GWA System; (c) allow a third party to access the GWA Service or transfer to a third party any of Customer's rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the GWA Service for the benefit of a third party or to operate a service bureau; (d) copy, modify or make derivative works based on any part of the GWA System; "frame" or "mirror" any of GWA's content which forms part of the GWA Service (other than on Customer's own web site); or (e) otherwise use the GWA Service in any manner that exceeds the scope of use permitted under Section 2.1 hereof.
3.4 You must be at least thirteen (13) years of age to use the GWA Service. GWA reserves the right to refuse service to anyone at any time without notice for any reason.
4.1 As consideration for the subscription to the GWA Service provided by GWA under this Agreement, Customer will pay GWA the Fees set forth in the applicable Order Form. All Fees will be billed on an annual basis and are due within thirty (30) days of receipt of invoice, unless stated otherwise in the Order Form. Overdue amounts shall accrue interest at the rate of 1 ½% per month, or at the highest legal interest rate, if less. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, or other transactions contemplated under this Agreement, except for employment taxes and taxes based on GWA's net income. GWA reserves the right (in addition to any other rights or remedies GWA may have) to discontinue the GWA Service and suspend all Customer IDs and Customer's access to the GWA Service if any Fees set forth in an Order Form are more than thirty (30) days overdue, until such amounts are paid in full. Customer shall ensure that its Subscription Administrator maintains complete, accurate and up-to-date Customer billing and contact information via the online account section of the GWA Service at all times.
4.2 GWA reserves the right to modify, suspend, or discontinue the Service at any time, and GWA will not be liable to you should it exercise such right.
4.5 GWA reserves the right to decide which sites may receive the service for free, and to decide which sites will be required to pay if they wish to make use of the service.
5.1 GWA System and Technology. Customer acknowledges that GWA retains all right, title and interest in and to the GWA System and all software, materials, formats, interfaces, information, data, content and GWA proprietary information and technology provided to Customer by GWA in connection with the GWA Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or learned as a result of Customer's use of the Service (the "GWA Technology"), and that the GWA Technology is protected by intellectual property rights owned by or licensed to GWA. Other than as expressly set forth in this Agreement, no license or other rights in the GWA Technology are granted to the Customer, and all such rights are hereby expressly reserved by GWA.
5.2 Customer Data. Customer retains all right, title and interest in and to the Customer Data.
6.1 Term. Term will begin on the Effective Date and continue for the period of time specified in the initial Order Form. Thereafter, this Agreement will automatically renew for successive Terms, unless one of the parties gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Term. GWA shall provide Customer with no less than sixty (60) days prior written notice of the end of the term. GWA reserves the right to increase the Fees applicable to any renewal term upon prior written notice to Customer.
6.2 Early Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. Upon the termination of this Agreement for any reason: (a) any amounts owed to GWA under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other all property of the other party in its possession or control. GWA agrees that upon any early termination of this Agreement, GWA will allow the Customer to download all User Data submitted by End Users of Customer's web site. Thereafter, GWA will remove all Customer Data from the GWA System and all Customer access to or use of the GWA System and GWA Service will be immediately suspended. The rights and duties of the parties under Sections 4, 5, 6.2, 7, 8, 9 and 10 will survive the termination or expiration of this Agreement.
GWA makes no warranty concerning the GWA System or GWA Service and Customer acknowledges that GWA's sole obligation with regard to the GWA Service is to use commercially reasonable efforts to meet the service levels described in Section 2.3 hereof. ACCORDINGLY, THE GWA SERVICE, THE GWA SYSTEM AND ALL OTHER DATA, MATERIALS, AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY GWA AND ITS SUPPLIERS ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. GWA AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. GWA DOES NOT WARRANT THAT THE GWA SERVICE WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE OR VIRUS-FREE.
8.1 By Customer. If any action is instituted by a third party against GWA: (a) arising out of or relating to the use of the GWA System or GWA Service (including claims by any customer or business partner of Customer) by Customer or any third party with Customer's Customer ID; or (b) alleging that the User Data, or the use of User Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of GWA and shall pay all damages attributable to such claim which are finally awarded against GWA or paid in settlement of such claim. Customer shall have no obligation under this Section for any claim or action that arises out of a breach of this Agreement by GWA.
8.2 Conditions. As a condition of the foregoing indemnification obligations, the indemnified party will: (a) inform the indemnifying party of a claim as soon as reasonably practicable after the indemnified party receives notice of the claim; (b) permit the indemnifying party to assume direction and control of the defense of the claim (including the right to settle solely for monetary consideration); and (c) cooperate as requested by the indemnifying party (at its expense) in the defense of the claim. The indemnified party shall have the right to participate, at its expense, in the defense of any claim that is subject to indemnification as set forth in this Section 8.
GWA'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISNG FROM OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), THE GWA SERVICE AND THE GWA SYSTEM, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO GWA BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER'S FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER. ALL CLAIMS THAT CUSTOMER MAY HAVE AGAINST GWA WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL GWA BE LIABLE FOR SPECIAL, INCIDENTAL, DIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE GWA SYSTEM OR GWA SERVICE, EVEN IF GWA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
10.1 Publicity. GWA and Customer may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. Customer agrees to allow GWA to use Customer's name in customer lists and other promotional materials describing Customer as a customer of GWA and a user of the GWA Service.
10.2 Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without GWA's prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. GWA may assign this Agreement without Customer's consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, and GWA may subcontract certain aspects of the GWA Service to qualified third parties, provided that any such subcontracting arrangement will not relieve GWA of any of its obligations hereunder.
10.3 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court sitting in Los Angeles, CA (provided, however, that nothing in this Agreement will prevent GWA from seeking injunctive relief to enforce the terms of this Agreement in any competent venue or jurisdiction), and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
10.4 Remedies. Except as provided in Section 8, the parties' rights and remedies under this Agreement are cumulative. Customer acknowledges that the GWA System contains valuable trade secrets and proprietary information of GWA, that any actual or threatened breach of Section 3 will constitute immediate, irreparable harm to GWA for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach, and waives any requirement by GWA for posting bond. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.
10.5 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the physical and/or email address set forth in the initial Order Form (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested), (c) sent via email, cable, telegram, telex, telecopier, fax (all with confirmation of receipt) or (d) sent by recognized air courier service.
10.6 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.7 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
10.8 Amendment. GWA reserves the right to amend any of the terms of this Agreement at its sole discretion by posting the revised terms on the GeneralWebApps.com website. Your continued use of the Service after the effective date of any such amendment shall be deemed your agreement to be bound by such amendment.
10.9 Entire Agreement. This Agreement, together with any related Order Forms is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.