By proceeding I acknowledge that I have read and agree to the following terms and conditions:
THIS HOSTING AGREEMENT (the "Agreement") is made and entered into as of this day, by and between AST Sportswear, a California Corporation dba BAYSIDE , with a principal place of business at 2701 E. Imperial Hwy., Brea, California 92821 ("BAYSIDE "), and customer listed below.
WHEREAS, BAYSIDE and Customer currently have a business relationship with each other whereby BAYSIDE sells certain goods to Customer for resale or further distribution; and WHEREAS, the parties wish to expand such business relationship by entering into this Agreement for the provision of certain web hosting services by BAYSIDE to Customer.
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Recitals; Defined Terms. The foregoing recitals are hereby incorporated into this Agreement as if fully rewritten and restated in the body of this Agreement. The following terms are defined as set forth below.
(a) "Customer Data" shall mean all supporting data files, data structures, graphics, sound, and such other materials provided by the Customer for use on the Web Server.
(b) "Customer Website" shall mean the internet website that Customer operates through the Web Server (as defined hereinafter).
(c) "End-Users" shall mean Customer's customers and other member's of the general public who access the Customer Website.
(d) "End-User Data" shall mean all data, including without limitation, names, addresses and contact information, placed on the Web Server by End-Users via select dialogue boxes and other data entry fields located on the Customer Web Site and which are previously approved by BAYSIDE in its sole discretion.
(e) "Physical Server" shall mean the serving computers, hardware, operating system, and software owned or licensed by BAYSIDE necessary to operate and support the Web Server (as defined hereinafter) in accordance with this Agreement.
(f) "Web Server" shall mean the server space on the Physical Server and the related software owned or licensed by BAYSIDE provided to the Customer in connection with the operation of Customer's Website.
(g) "Website Downtime" shall mean the period of time during which there is any interruption, limitation or general lack of public and/or Customer access to the Customer Website.
2. Scope of Services.
(a) BAYSIDE will provide Customer, at no fee, with certain hosting and maintenance services, including without limitation, use of its Physical Server necessary to reasonably operate and support the Web Server and Customer Website. Notwithstanding the foregoing, Customer is solely responsible for providing all telephone, computer, hardware and software equipment necessary to access the Physical Server, and BAYSIDE makes no representations, warranties, or assurances that Customer's equipment is compatible or adequate for such access. The Web Server shall be connected to the internet and shall be configured to allow for public access of Customer's Website, and BAYSIDE shall use reasonable efforts to ensure that Website Downtime is limited, provided however, Customer acknowledges that Website Downtime may occur on account of (i) any previously scheduled maintenance, or (ii) any interruption to the Physical Server or Web Server which is beyond BAYSIDE 's control, including without limitation, acts of nature, third party equipment or transmission failures, or security breaches, or (iii) such other reasonable interruptions not set forth herein.
(b) BAYSIDE may perform any maintenance services to the Web Server and/or the Physical Server as it deems reasonably necessary or appropriate, and such services may result in Website Downtime. Notwithstanding anything to the contrary contained herein, BAYSIDE will not provide Customer any prior notice
of any such maintenance services and/or any resulting Website Downtime, nor shall BAYSIDE be liable in any manner with respect to any such maintenance services and/or resulting Website Downtime.
(c) Notwithstanding anything to the contrary herein, Customer shall have the sole responsibility to protect and/or back-up, electronically or otherwise, all Customer Data and End-User Data placed on the Web Server, and BAYSIDE shall have no responsibility, regardless of negligence, for the loss of any such Customer Data and/or End-User Data from the Web Server.
3. End-User Data.
The End-User Data shall be collected solely for the benefit and use of Customer. Subject to the terms and conditions contained herein, Customer shall be provided reasonable access to any End-User Data residing on the Web Server. BAYSIDE hereby agrees that it shall not use the End-User Data for its own purposes
nor intentionally disseminate the End-User Data to parties other than Customer except as otherwise required by applicable law or with Customer's prior written consent. Notwithstanding the foregoing, BAYSIDE may access the End-User Data solely in connection with (i) processing any purchase or other orders on behalf of Customer that are placed through the Customer Website by End-Users, and (ii) any maintenance services to the Web Server and/or Physical Server and other related purposes, provided however, the foregoing access shall not be deemed to grant BAYSIDE any rights to use the End-User Data for any purposes unrelated to such permitted uses.
5. Apparel Design Studio Art Usage
Final artwork can be used to print and sell apparel and accessories carried by BAYSIDE . You cannot resell the clip art from BAYSIDE Apparel Design Studio modified or unmodified as clip art itself for further use or modification. Artwork is for your use and can be applied to apparel and accessories sold by BAYSIDE and the finished printed or embroidered product can be sold to your customers.
6. Apparel Design Studio Customer Supplied Artwork
BAYSIDE is not responsible for insuring legal ownership of your customerâs uploaded artwork. BAYSIDE can not be held responsible for any artwork generated by your customers that could be considered libelous, defamatory, obscene, profane (according to standards established by the FCC), portraying irresponsible
use of alcohol or other substances, advocating persecution based on gender, age, race, disability or national origin, containing explicit sexual content or is otherwise inappropriate
This Agreement shall commence on the Effective Date and continue indefinitely until either party so terminates this Agreement upon five (5) days prior written notice to the other party. This Agreement may be terminated by either party for any or no reason. Notwithstanding the foregoing, BAYSIDE may terminate this
Agreement immediately and without any prior written notice to Customer should there be a violation of any provision herein, or a default in any other obligation owed to BAYSIDE by Customer.
8. Customer's General Conduct and Use.
(a) The Customer Website shall be used solely for the sale of certain goods and services previously approved
by BAYSIDE , in its sole discretion, and the Web Server shall only be used in connection therewith. Customer may not place any links to other websites on the Customer Website not otherwise previously approved by BAYSIDE .
(b) Customer shall comply at all times with all local, state, federal, international and all other applicable laws and regulations in its performance under this Agreement and in the use and operation of the Web Server and Customer's Website, including without limitation all applicable laws governing technology, software, trade secrets, and copyrights.
(c) Customer shall hold all necessary rights with respect to all of the Customer Data and End-User Data so that the use thereof on the Web Server and Customer Website does not infringe on any intellectual property or other proprietary rights of any third party, including without limitation, any patents, copyrights, trademarks, trade names, or trade secrets.
(d) Customer shall not place any Customer Data on the Web Server that is, in BAYSIDE 's sole discretion, unlawful, obscene, of an "adult nature", pornographic, relates to or promotes gambling, is threatening, abusive, libelous, or encourages conduct that would constitute a criminal offense, or may give rise to civil liability.
Furthermore, no Customer Data or End-User Data placed on the Web Server or Customer Website may contain any false or misleading advertising, constitute unfair competition, defamation, invasion of privacy, misappropriation of rights of celebrity, violate any anti-discrimination laws, or in any way be objectionable to BAYSIDE in its sole discretion.
(e) Customer shall not send or distribute unsolicited bulk mail messages, commonly referred to as "spam" or "junk mail" through the Web Server and/or Physical Server. The foregoing includes without limitation, the bulk-mailing of commercial advertising and informational announcements that have not otherwise been specifically requested or permitted by the parties receiving such communication.
(f) Customer's use of the Web Server and Customer Website shall not result in excess, as determined in BAYSIDE 's sole discretion, computer processing capacity and/or bandwidth use on the Physical Server, regardless of whether such excess use is related to Customer's ordinary course of business, unauthorized hacking of the Web Server or Customer Website, viruses, or such other activities.
(g) Customer shall maintain necessary security for all forms and scripts in connection with the Customer Data and End-User Data in order to prevent "hacking" and any other exploitation by third parties through the Web Server and/or Customer Website.
(h) Except for End-User Data, Customer may not sell, license or otherwise permit another party to use the Web Server in any manner or place any material, including without limitation, written data, graphics, and sound, unto the Customer Website without the prior written approval of BAYSIDE .
9. No Warranty and Limitation of Liability.
THE WEB SERVER AND ALL OTHER SERVICES PROVIDED BY BAYSIDE ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS. BAYSIDE GIVES NO WARRANTY, EXPRESSED OR IMPLIED, FOR THE SERVER SERVICES PROVIDED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY AND/OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. OR OF NON INFRINGEMENT.
Customer expressly agrees that use of the Web Server and Customer Website is at
Customer's own risk. BAYSIDE , regardless of negligence, shall not be responsible for any damages, whether direct, indirect, incidental, special, consequential, punitive, or otherwise arising from or related to any Website Downtime, and/or Customer's and/or any End User's use of the Web Server, Customer Website or any other services provided by BAYSIDE in connection therewith, or by Customer's and/or any End User's inability to use any of the foregoing for any reason, including without limitation, the loss of any Customer Data, End User Data, profit, good will, time, or revenue. This limitation on BAYSIDE 's liability includes
without limitation any damages arising from or related to any mistakes, omissions, interruptions, deletion of files, errors, defects, delays, and such other events caused by BAYSIDE , or any of BAYSIDE's officers, agents, employees, or any other individual acting at BAYSIDE 's direction, as well any acts of nature, theft, destruction or unauthorized access to BAYSIDE 's records and/or Physical Server by unrelated parties. In the event that BAYSIDE is found liable to Customer, for any reason, Customer expressly limits the liability of BAYSIDE to $1,000.
Customer shall indemnify, defend and hold harmless BAYSIDE , its directors, officers, employees, agents and successors and assigns from any and all losses, costs, damages, liability or expenses as incurred (including attorneys' fees and legal costs) arising out of or related to any claim, suit or judgment brought by or in favor of any person or persons for damages, losses or expenses which may arise from or be related to Customer's and/or any End User's use of the Web Server, Customer's Website or this Agreement, except for such damages, losses or expenses caused by the sole active gross negligence or willful misconduct of BAYSIDE.
If any sentence, paragraph, clause or combination of the same in this Agreement is held to be unenforceable,invalid or illegal in any jurisdiction, such sentence, paragraph, clause or combination shall be deemed deleted from this Agreement and the remainder of this Agreement shall remain binding on the parties as if such unenforceable, invalid, or illegal sentence, paragraph, clause or combination had not been contained herein.
The failure by BAYSIDE at any time or times to enforce any provision of this Agreement shall in no way be construed to be a waiver of such provision or to affect the validity of this Agreement or any part hereof, or to limit the right to BAYSIDE thereafter to enforce each and every provision in accordance with the terms of this Agreement.
Nothing in this Agreement or to be done pursuant to its terms and conditions is intended to, or shall, create a partnership or joint venture, for tax purposes or otherwise, between BAYSIDE and Customer.
14. Governing Law and Venue.
This Agreement is governed by the internal laws of the California. Customer hereby irrevocably submits to the exclusive jurisdiction of the state or federal courts located in Orange County, California, for purposes of any suit, action or other proceeding arising out of or based on this Agreement or the subject matter hereof.
Any notice or other communication to be given by either party hereto to the other party hereto shall be in writing and mailed by certified, registered, or overnight mail with receipt or return receipt to the party to be notified at its address set forth at the beginning of this Agreement, or at such other address as the party to receive the notice may designate by written notice to the other party.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be and original, but all of which shall be one and the same instrument.
17. Entire Agreement.
This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, replacing any and all prior agreements, communications, and understandings (both oral and written) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.