Services Agreement
Effective September 18, 2007
THIS SERVICES AGREEMENT (“Agreement”) is by and between VISI Incorporated, with its principal place of business at 12 South Sixth Street, Suite 630, Minneapolis, MN 55402 (“VISI”) and each customer (the “Customer”) that submits an order to purchase or license services from VISI.
1. SERVICES. This Agreement sets forth the terms and conditions pursuant to which Customer agrees to purchase and VISI agrees to provide to Customer such services and/or products (collectively the “Services”) as may be offered for sale or license by VISI. By using the Services you hereby agree to the terms and conditions of this Agreement. If you do not agree with these terms and conditions, please discontinue your use of the Services. The particular service or product that Customer purchases or licenses from VISI shall be described in the VISI generated order form that is provided to Customer (the “Order(s)”). Each Order shall become part of this Agreement and shall describe the Services to be provided, the term applicable to such Services, pricing, and any other information pertaining to such Services.
2. RESTRICTIONS AND ACCEPTABLE USE.
2.1 Use of Service. Customer may use the Services only for authorized and lawful purposes. Customer’s use of the Services shall be in strict compliance with VISI’s acceptable use policy found at [http://www.visi.com/acceptableuse.aspx], as such policy may be periodically changed by VISI (the “AUP”). Some of the Services provided by VISI allow a Customer to create and post a personal website on the Internet (the “Personal Website”). In no event shall the Customer use the Personal Website to transact business or commerce of any kind. VISI reserves the right to terminate unattended or inactive connections from dial-up Customers. The Customer will be responsible for any connection charges from VISI or third-party vendors resulting from extended usage or failure to disconnect. In USENET newsgroups, at our option or the option of our news partners, peers or providers, and without further notice, anti-spam technologies may be used, such as automatic word and spam filters, that may terminate Customer messages without delivering them, or prevent messages from reaching Customer. Customers targeted by denial of service attacks or negatively affecting the VISI network and/ services may be subject to suspension or termination if deemed necessary to maintain the security of the VISI network.
2.2 Customer Materials. Customer will ensure that any materials and information transmitted through, stored on, derived from or in any way related to the Services (“Customer Materials”) will be in strict compliance with the restrictions of the AUP.
2.3 Customer and Third party Use of Services. Customer’s right to use the Services provided hereunder is limited to Customer and is non-transferable, except as set forth herein. Customer agrees to assume responsibility and liability for any damages arising out of or relating to any third party use of the Services provided to Customer.
2.4 Customer Compliance. While VISI assumes no obligation to monitor Customer’s behavior with respect to the Services or Customer’s usage of the Services, VISI maintains the right to monitor Customer’s behavior and usage, and to immediately and without notice suspend or terminate this Agreement, any Order, or the provision of any Services hereunder, if VISI reasonably believes that the Customer has violated any of the restrictions set forth in this Agreement, including, but not limited to, the AUP or is otherwise the cause of harm or interference with VISI’s rights or property, or the rights or property of others.
2.5 Use of Services and Data. Unless Customer has purchased data back-up services as part of the Services, it is the sole responsibility of Customer to back-up and/or create duplicate copies of all Customer Data or information used by Customer in conjunction with the Services, all at its own expense.
3. PRIVACY.
3.1 Customer Personal Information. Except as set forth in VISI’s Privacy Statement (a copy of which can be found at [http://www.visi.com/privacy.aspx]), as such policy may be periodically modified by VISI (the “Privacy Policy”), VISI will not sell, distribute or transfer any Customer information or data to third parties without Customer’s prior written consent.
3.2 Administrative Reports. Customer acknowledges that Internet use and related Services provided under this Agreement may require registration and related administrative reports which are public in nature.
4. FEES, EXPENSES, AND PAYMENT. Unless otherwise provided in an Order, Customer will receive a monthly invoice for the Services and related fees. Fees based on amount of Customer usage will be billed monthly in arrears; all other fees will be billed in advance. All invoices are payable upon receipt. Customer also agrees to pay or reimburse VISI for all sales, use, excise and other taxes (except for those taxes based on VISI’s income) and governmental charges that VISI is at any time required to pay or collect in connection with the sale, licensing or furnishing of the Services under this Agreement. Any invoiced amounts not received by VISI within thirty (30) days of the applicable invoice date shall incur late charges at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed by law. All returned checks will be subject to a $20.00 fee for each time they are rejected by Customer’s bank. Access to Services may be suspended if a bad check is not paid in full by Customer with all applicable fees within five (5) days of receipt of a returned check notice from Customer’s bank. If Customer believes that a billing discrepancy has occurred, Customer must notify VISI in writing within sixty (60) days of the date of the relevant invoice. Customer agrees to pay all attorney and collection fees arising out of any efforts undertaken by VISI to collect any unpaid balance of Customer’s account.
VISI reserves the right to change its fees and charges for use of portions of the Services, to institute new or additional fees, and to change its policies and procedures with respect to pricing and billing at any time, provided, however, that VISI gives Customer thirty (30) days prior written notice of any such change.
5. HARDWARE, EQUIPMENT AND SOFTWARE. Unless otherwise expressly set forth in a Order, Customer is responsible for and must provide at its own cost all computer hardware equipment, software, and services necessary to access and use the Services. VISI makes no representations, warranties or assurances that Customer’s equipment, software or services will be compatible with the Services.
6. RIGHT TO MAKE SERVICE CHANGES. VISI retains the right to change in its discretion and without liability to Customer, the methods, processes and/or the suppliers by which VISI provides Services to Customer, as well as the right to change, add to or delete Service or Service offerings provided that VISI gives appropriate notice of any such change.
7. CUSTOMER’S REPRESENTATIONS AND WARRANTIES. Customer represents and warrants that: (a) the Customer Materials and the display or transmission of the same, does not and will not (i) violate or infringe upon the copyright, patent, trademark, trade secret, (or any other proprietary or intellectual property rights) or the right of publicity or privacy of any third party; or (ii) slander or defame any third party; (b) Customer has all rights necessary to maintain, use, modify, display and transmit the Customer Materials; (c) Customer Materials and any action by Customer related to the Service(s) or this Agreement do not as of the Effective Date, and will not during the term of this Agreement, operate in any manner that would violate this Agreement or any applicable code, law, rule, regulation, ordinance or order; and (d) Customer has the full authority to enter into and to fully perform all of its duties and obligations under this Agreement.
8. INDEMNIFICATION. Customer agrees to defend, indemnify, and hold harmless VISI, its affiliates, agents, officers and employees against all claims, costs and expenses (including reasonable attorneys’ fees) and liabilities arising out of or relating to: (a) an actual or alleged violation of any of the restrictions contained in Section 2 of this Agreement by Customer or any of its officers, employees, agents or invitees; or (b) an actual or alleged breach of any warranties contained in Section 7 of this Agreement by Customer or any of its officers, employees, agents or invitees.
9. LIMITED WARRANTY. VISI represents and warrants that it will provide the Services in substantial accordance with the description of such Services found in the Orders.
10. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9 OF THIS AGREEMENT, ALL SERVICES ARE FURNISHED BY VISI AND ACCEPTED BY CUSTOMER “AS IS.” ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY VISI. VISI DOES NOT WARRANT THAT ANY SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW APPLIES TO THIS AGREEMENT.
11. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL VISI BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOSS OF DATA, OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF VISI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. VISI’S AGGREGATE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO VISI UNDER THIS AGREEMENT FOR THE ONE (1) MONTH IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW APPLIES TO THIS AGREEMENT AND YOU MIGHT HAVE ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
12. TERM AND TERMINATION.
12.1 Term and Renewal. The Services shall commence and continue as specified in each applicable Order (the “Initial Term”). Unless otherwise specified in an Order, the Initial Term of an Order for Services will automatically renew for successive one (1) month periods (the “Renewal Term”), unless terminated in accordance with this Section 12.
12.2 Termination.
12.2.a This Agreement and/or its Order(s) may be terminated by VISI, immediately and without notice, if: (i) Customer violates Section 2 above (ii) Customer violates Section 7 above; or (iii) Customer violates any applicable law, rule, regulation, or ordinance while using the Services.
12.2.b This Agreement and/or its Order(s) may be terminated by either party(i) if the other party is in material breach which has not been cured within fifteen (15) days of receipt of written notice of such material breach; or (ii) without cause upon thirty (30) days prior written notice. Requests to so terminate this Agreement and/or its Orders must be submitted in writing via US Mail, email to billing@visi.com or via fax. Our current mailing address and fax number are available at our home page [http://www.visi.com]. If Customer elects to send us written notice via email, the email must originate from a valid VISI email account. VISI may contact Customer (or their authorized representative) by phone to confirm their decision to terminate this Agreement and/or its Orders.
12.2.c Prior to termination of this Agreement or any Order, Customer shall pay all unpaid fees due and payable for the Service through the date of termination and other amounts due and payable. In the event Customer has prepaid funds that exceed the amount owed by Customer to VISI at the time of termination, VISI shall refund such remaining funds within forty-five (45) days of the termination date. No refunds shall be paid on fees paid by Customer to VISI related to SSL certificates or domain name registration services. Upon termination of this Agreement, paragraphs 3, 4, 7, 8, 9, 10, 11, 12, 15, 17, 21 and 22 of this Agreement shall survive.
13.2.d If the Services are suspended or interrupted for any reason, except a force majeure event in accordance with Section 14 or a breach of this Agreement by VISI, and this Agreement is not terminated, Customer shall not be relieved of its obligation to pay all fees and charges in accordance with this Agreement.
13. NOTICES. Any notice permitted or required by this Agreement must be in writing and shall be deemed given, in the case of VISI, when delivered to the applicable VISI address set forth below, and in the case of Customer, when delivered to the Customer address provided by Customer or the email address provided by Customer. If to VISI:
VISI Incorporated
d/b/a VISI
Attn: Mike Sowada, CEO
12 South Sixth Street, Suite 630
Minneapolis, Minnesota 55402
14. FORCE MAJEURE. VISI shall not be liable for any delay or failure in performing any obligation under this Agreement where cause for such failure or delay is beyond VISI’s reasonable control.
15. NON-WAIVER. VISI’s failure at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. VISI’s waiver of any default shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
16. SEVERABILITY. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect.
17. CHOICE OF LAW AND VENUE. This Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws of the State of Minnesota, without regard to conflict of law principles. Customer expressly agrees that the exclusive jurisdiction for any claim or action arising out of or relating to this Agreement shall be in the state or federal courts located within the State of Minnesota. Customer agrees that it must commence any claim or action arising out of or relating to this Agreement within one (1) year after the claim or cause of action arose.
18. ASSIGNMENT. Customer may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of VISI. VISI may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations hereunder to a parent, subsidiary or other company under common control or to any person or entity which purchases or otherwise succeeds to substantially all of its assets.
19. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Any attempted assignment not in compliance with this paragraph shall be null and void. No third party beneficiaries are intended or shall be construed as created by virtue of this Agreement.
20. RELATIONSHIP OF THE PARTIES. VISI is an independent contractor. Nothing in this Agreement shall be construed as creating any joint venture, partnership, employment or agency relationship between the parties.
21. ORDERS AND EXHIBITS. The Order(s) executed by both parties, and any related exhibits SLAs thereto, the AUP and the Privacy Policy are all incorporated into this Agreement by reference. To the extent any term on an Order contradicts the terms of this Agreement, the terms of the Order shall control. To the extent any term of this Agreement contradicts the terms of the AUP or Privacy Statement, the terms of this Agreement shall prevail.
22. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and understanding between VISI and Customer regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. Except as otherwise set forth in this Agreement (and except for the AUP and Privacy Policy), this Agreement, and any Order entered into by the parties pursuant to this Agreement, may only be modified by the written agreement of the parties.