|Last Updated on
October 31, 2011
The following agreement (“Agreement”) contains the complete terms and conditions that will apply between you (“Customer”) and Granite Web Design, Inc. (“Granite Web”), a New York corporation having a business office and address at 8 Angela Lane, Lake Grove, NY 11755, if all of the following conditions are met: (1) you read and agree to the terms and conditions of the Agreement and indicate your acceptance of the terms and conditions of the Agreement by clicking “I Agree” at the Order Page; (2) you fully and correctly submit all information requested of you in the following Order Form or provide the requested information to Granite Web Sales staff; and (3) you submit proper payment pursuant to Section 3, of this Agreement. This Agreement shall become effective on the date (the “Effective Date”) that payment is received and accepted by Granite Web.
GRANITE WEB IS WILLING TO PROVIDE SOFTWARE AND HOSTING SERVICES TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS HEREIN, GRANITE WEB IS UNWILLING TO PROVIDE SOFTWARE AND HOSTING SERVICES TO YOU.
WHEREAS, Granite Web has developed, owns and markets proprietary, Internet-based, e-commerce solutions and offers web site hosting services on the Internet; and
WHEREAS Customer wishes to make use of the e-commerce solutions and retain the web site hosting services of Granite Web;
NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, Granite Web and Customer agree as follows:
A. “Customer’s Content” means any and all material developed, purchased, or otherwise acquired by Customer that is published, made available or otherwise used in conjunction with Customer’s Web Site. Customer’s Content includes, but is not limited to, end user data collected by Customer, and information regarding merchandise or services sold by Customer through its Web Site.
B. “Hosting Services” means the services described in Section 2.A of this Agreement.
C. “Software” means the“CS-Cart” ecommerce software, current release version, including any updates provided by CS-Cart, and CS-Cart’s proprietary technology and source code.
D. “Granite Web’s Content” means any and all material developed by Granite Web and made available for use by Customer, including any designing of Customer’s Web Site, and templates prepared by Granite Web for use by Customer.
E. “Web Site” means Customer’s Internet presence, identified by the domain name provided by Customer.
F. “Service” means the combined hosting and ecommerce software mentioned in “B” and “C” above.
2. SOFTWARE AND HOSTING SERVICES
A. Hosting Services. Granite Web shall provide storage for the Software, and content of Customer’s Web Site and make it available for end-users to access;
B. Service Levels. Granite Web shall provide the Hosting Services in substantial compliance with the hosting functionality service levels set forth in the SLA.
C. Service Level Agreement. Granite Web guarantees that the network will be available 99.99% of the time in a given month. This service level warranty shall not apply to performance issues: (1) to the extent caused by factors outside of Granite Web’s reasonable control; (2) that resulted from any actions or inactions of Customer or any third parties not affiliated with Granite Web; (3) that resulted from Customer’s equipment and/or third party equipment; (4) that resulted from software related issues; or (5) that are scheduled by Granite Web for purposes of maintaining or updating the Web Site or the Software. Upon experiencing network downtime above and beyond the 99% availability, Granite Web will refund a customer 5% of the monthly fee for each 30 minutes of downtime (up to and not to exceed 100% of customer’s monthly fee or the calculated fee for the current month if the Customer pays under a different payment term). Network downtime exists when a particular customer is unable to transmit and receive data and Granite Web records such failure in the Granite Web online support ticket system or calls Granite Web. Network downtime is measured from the time the trouble ticket is opened by the customer or the call or voicemail are received … to the time the server is once again able to transmit and receive data. If Customer fails to comply with this requirement, Customer forfeits its right to a receive service credit.
A. Fees. In consideration of the Hosting services, Customer will pay to Granite Web all fees due according to the prices and terms listed on the invoice. All sales are final and Granite Web offers no partial or full refunds of any kind on any purchase, unless meeting the following requirements: the purchase is cancelled within 30 days of the initial purchase. Only under these conditions will the Customer receive a full refund of their first Monthly Fee only (or their initial pre-paid term). There are no refunds of the Monthly Fee (or pre-paid term) if the account is cancelled after that 30 day period. Granite Web offers no partial or full refunds whatsoever on the Setup Fee, the purchase or set-up of an SSL Certificate or on any other product or service offered through Granite Web, other than the Monthly Fee (or pre-paid term) for accounts cancelled within 30 days of the initial purchase.
B. Change in Fees. Granite Web may change its fee schedules on sixty (60) days notice by postal mail, electronic mail, or by posting the same on Granite Web’s own Web Site. Upon such notice, Customer shall have thirty (30) calendar days prior to the effective date of the fee schedule to notify Granite Web the online Support Ticket System or via telephone, should it not agree to such rate increase and that Customer wishes to terminate this Agreement.
C. Payment. Granite Web will invoice Customer according to their plan’s payment terms, and all payments are due within five (5) days of the invoice due date. If a payment is returned or rejected by Granite Web’s bank, or incurs additional costs for Granite Web (e.g., bank fees) for any reason, then Granite Web shall reserve the right to charge the Customer a service fee of $40 and require Customer to reimburse all such fees and costs incurred by Granite Web, and Customer shall be immediately deemed to be in default of this Agreement. Accounts not paid in full by the 30th day after Granite Web submits its invoice may have their service interrupted or terminated, but any interruption does not relieve Customer from the obligation to pay all fees due to Granite Web, including the monthly account charge. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is less, until fully paid. If Customer defaults, Customer agrees to pay Granite Web its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights.
D. Taxes. All fees charged by Granite Web for the Hosting Services are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Hosting Services, all of which Customer will be responsible for and will pay in full, except for taxes based on Granite Web’s net income. If Granite Web is required to pay directly any such taxes, Customer will, upon receipt of Granite Web’s invoice, promptly reimburse Granite Web for any such taxes paid by Granite Web.
E. Errors/Disputes. If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
F. Excess Data Transfer and Data Storage Fees.
If the amount of data transfer required for your account exceeds your plan limit, you will be charged the then-current bandwidth fees. This information is available when logging into your accounts Cpanel. Granite Web reserves the right to establish or modify its general practices and limits relating to Customer bandwidth.
If the amount of disk storage required for your account exceeds your plan limit, you will be charged the then-current storage fees. This information is available when logging into your accounts Cpanel. Granite Web reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
Customer may not sublicense or resell any of Granite Web’s Software or Hosting Services to any third parties without the prior written permission of Granite Web. As an example, Customer may not provide Web Hosting services to any third party without Granite Web’s prior written permission. Any attempts to do so would be considered a material breach and grounds for termination of this Agreement.
5. USE OF CUSTOMER’S NAME AND TRADEMARKS
Customer hereby grants Granite Web a non-exclusive right and license to use Customer’s name and such of Customer’s trade names, trademarks, and service marks (collectively, “Customer’s Marks”) as are listed on Customer’s Content or otherwise provided to Granite Web in connection with this Agreement (a) on Granite Web’s own Web Sites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing Granite Web’s Services, and, (c) in applications reasonably necessary and ancillary to the foregoing. Customer may use Granite Web’s trade name, trademarks, and service marks (collectively, “Granite Web’s Marks”) in advertising and publicity in conjunction with the offering of Customer’s Content via Granite Web, provided that Customer shall submit copy to Granite Web for its prior written approval, and provided further that under no circumstances shall such use imply that Granite Web endorses, sponsors, certifies, approves or is responsible for Customer’s Content. Notwithstanding the foregoing, Customer need not obtain Granite Web’s prior written approval where use of Granite Web’s Marks is limited to inclusion in a list of systems via
which Customer’s Content is available.
6. TERM AND TERMINATION
A. Term. The term of this Hosting Services Agreement shall begin on the Effective Date, and shall continue on a month to month basis, unless either Party gives the non-terminating Party Thirty (30) days notice of its election to terminate this Agreement.
B. Termination For Breach. Each Party shall have the right to terminate this Agreement upon Fifteen (15) days prior written notice if the other Party is in material breach of any term of this Agreement, including without limitation the payment of monies, and the breaching Party fails to remedy such breach within the fifteen day notice period.
C. Cancelling Accounts. To cancel your account, your request must be received via our online support ticket system. To ensure that you are not billed for another month of service, you must cancel your account before your billing cycle due date. All accounts requesting cancellation are terminated upon receipt of submission. Cancellation requests submitted before the completion of a billing cycle will not receive a prorated refund.
7. ACCEPTABLE USE POLICIES
A. Acceptable Use Policy. Granite Web maintains on its Web site Granite Web’s then-current Granite Web Acceptable Use Policy (“AUP”). Customer agrees to abide by the AUP. Granite Web may modify its AUP at any time, and shall post the then-current AUP on Granite Web’s Web site, which will be effective upon posting.
B. End Users to Comply with AUP. Customer acknowledges that Granite Web may terminate an end user’s access to Customer’s Web Site for noncompliance with Granite Web’s AUP. Granite Web may thus terminate such end user’s access to Customer’s Content even if the end user has not violated Customer’s own terms and conditions of use of its Web Site. Granite Web acknowledges that Customer may terminate a User’s access to Customer’s Content for noncompliance with Customer’s terms and conditions.
8. SECURITY & PCI-DSS COMPLIANCE
Customer acknowledges that the Internet is not a secure or completely reliable system, and that the purpose of the Hosting Services is to allow end users easy access to Customer’s Content. Granite Web will take those precautions Granite Web deems reasonable in its sole discretion to secure Customer’s Web Site from attack, but Granite Web makes no warranty that there will be no outages or interruptions of service, or that Customer’s Content will be secure against attack of any form by end users or other third parties. Additionally, the Customer hereby acknowledges that it is their sole responsibility to fully research and perform all required actions in order to achieve and maintain PCI-DSS Compliance as where required by their agreement with their merchant bank.
9. CUSTOMER’S CONTENT
A. Ownership of Content. Customer acknowledges and agrees that (a) unless expressly stated elsewhere, Granite Web has no proprietary, financial, or other interest in Customer’s Content; (b) Granite Web does not, by virtue of offering or hosting Customer’s Content, edit, distribute, market, sublicense, publish, or otherwise provide Customer’s Content to end users; and (c) Customer is solely responsible for the information, data, graphics, text, quality, performance, and all other aspects of its Content. Customer warrants that it owns or has the right to use and offer the Content in connection with Customer’s Marks in the manner in which such Content is offered and will be offered by
Customer during the term of this Agreement.
B. Protection of Content. Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its Content. Although Granite Web provides data backup services, Customer is advised that Granite Web in no way is responsible for any damages resulting from the loss of Customer’s Content, regardless of the reason for such loss. Customer is solely responsible for backing-up/archiving Customer’s Content.
10. ACCOUNT INFORMATION & DATA
Granite Web does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Granite Web, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Granite Web shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Granite Web will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. Granite Web reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Granite Web shall have no obligation to maintain or forward any Customer Data.
11. GRANITE WEB’S CONTENT
12. Intellectual Property Ownership
Granite Web alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the CSC-Commerce Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Granite Web Technology or the Intellectual Property Rights owned by Granite Web. The Granite Web name, the Granite Web logo, and the product names associated with the Service are trademarks of Granite Web or third parties, and no right or license is granted to use them except the "Ecommerce Solutions & Shopping Cart Software powered-by CSC-Commerce" text/link included in the footer/copyright area of the storefront of each shop. The "Ecommerce Solutions & Shopping Cart Software powered-by CSC-Commerce" text/link may not be removed without the expressed permission of Granite Web and removal of this text/link is in breach of this agreement.
13. THIRD-PARTY INTERACTIONS
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Granite Web and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Granite Web does not endorse any sites on the Internet that are linked through the Service. Granite Web provides these links to you only as a matter of convenience, and in no event shall Granite Web or its licensors be responsible for any content, products, or other materials on or available from such sites. Granite Web provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
14. PROHIBITED PRACTICES
Granite Web shall have no duty or obligation to monitor Customer's Content or any other Content provided or distributed by others, and Granite Web shall not edit or otherwise exercise any control over Customer's Content. Nevertheless, Granite Web may, in its sole discretion at any time, without notice to Customer, and without liability to Customer, remove from public view, disconnect, or terminate the hosting of any of Customer's Content or other Content that Granite Web deems in its sole discretion to be offensive, illegal, or in violation of its AUP for any one or more of the following reasons: (i) the content is adjudicated to be in violation of the laws of the state where the server resides; illegal or sexually explicit Content or activities, or any Content that allegedly violates the law, rules or regulations of any country or subdivision thereof; (ii) the content constitutes harassment of Users, including, but not limited to, by means of Customer's billing practices; or (iii) Customer's noncompliance with or material breach of any of the terms and conditions of the AUP or this Agreement.; or (iv) claims made by third parties against Granite Web that Customer or any of its end users has engaged in one or more of the above practices.
15. POINT OF CONTACT
Customer shall designate a single Point of Contact in the accompanying Order Form. Customer's Point of Contact shall have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer agrees that Granite Web may rely on representations made by Customer's Point of Contact. Customer may change its Point of Contact at any time by giving written notice to Granite Web in accordance with the notice provisions of this Agreement. Granite Web is under no obligation to accept instructions from anyone other than the Point of Contact.
16. CUSTOMER'S INDEMNIFICATION
Customer shall indemnify and hold Granite Web, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Granite Web (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Granite Web of all liability and such settlement does not affect Granite Web's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Each party warrants and represents to the other party that it has the complete right to enter into and perform its responsibilities under this Agreement.
18. DISCLAIMER OF WARRANTIES
THE FOREGOING WARRANTIES ARE MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE AND HOSTING SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND GRANITE WEB NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR GRANITE WEB ANY OTHER LIABILITY IN CONNECTION WITH ANY SOFTWARE OR HOSTING SERVICES PROVIDED UNDER THIS AGREEMENT.
19. LIMITATION OF LIABILITY
GRANITE WEB ASSUMES NO RESPONSIBILITY WITH RESPECT TO CUSTOMER'S OR END USER'S USE OF THE SOFTWARE OR HOSTING SERVICES AND SHALL NOT BE LIABLE FOR
CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO:
LOSS OF USE
LOSS OF PROFITS
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES
COPYRIGHT, TRADEMARK OR PATENT INFRINGEMENT CLAIMS
EVEN IF GRANITE WEB IS AWARE OF THE POSSIBILITY THEREOF. GRANITE WEB SHALL IN NO EVENT BE LIABLE FOR
MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY IT FROM CUSTOMER FOR THE SERVICES DURING ANY 12-MONTH PERIOD.
20. FORCE MAJEURE
Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite or network failures.
21. NO ASSIGNMENT BY CUSTOMER
Customer may not assign this Agreement without the prior written consent of Granite Web, which Granite Web may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written permission shall be deemed null and void. Granite Web may assign this Agreement, which shall be effective upon written notice provided to Customer.
22. NOTICES OF TRADEMARK AND COPYRIGHT INFRINGEMENT
To cover the increasing cost of processing DMCA, trademark, and copyright infringement claims, Granite Web reserves the right to charge a $250 processing fee for each instance of notification received from a legitimate copyright holder. Granite Web reserves the right to close any store that, upon notification, fails to comply with a legitimate infringement claim within the specified time.
The parties acknowledge and agree that Granite Web is providing access to and use of the Granite Web Services to multiple customers and that such services are non-exclusive.
(i) Any notice or other communication ("Notice") required or permitted under this Agreement shall be in writing and either delivered personally or sent by facsimile, overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested, to the address listed above in this Agreement, for Granite Web or the address provided in the application form submitted with the payment for Customer; (ii) a Notice delivered personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by facsimile shall be deemed given when transmitted, provided that confirmation of that transmission was received. A Notice sent by
overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been sent. A Notice that is sent by certified mail or registered mail shall be deemed given forty eight (48) hours after it is mailed. If any time period in this Agreement commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given; (iii) either party may designate, by Notice to the other, substitute addresses, addressees or facsimile numbers for Notices, and thereafter, Notices are to be directed to those substitute addresses, addressees or facsimile numbers.
25. ASSIGNMENT; CHANGE IN CONTROL
This Agreement may not be assigned by you without the prior written approval of Granite Web but may be assigned without your consent by Granite Web to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Granite Web directly or indirectly owning or controlling 50% or more of you shall entitle Granite Web to terminate this Agreement for cause immediately upon written notice.
(i) The laws of the State of New York shall govern the validity and construction of this Agreement and any dispute arising out of or relating to this Agreement, without regard to the principles of conflict of laws; (ii) THE PARTIES SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, AND AGREE TO VENUE IN SUFFOLK COUNTY, NEW YORK; (iii) a ruling by any court that one or more of the provisions contained in this Agreement is invalid, illegal or unenforceable in any respect shall not affect any other provision of this Agreement. Thereafter, this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had been amended to the extent necessary to be enforceable within the jurisdiction of the court making the ruling and to preserve the transactions originally contemplated by this Agreement to the greatest extent possible; (iv) the section and subsection headings have been included for convenience only, are not part of this Agreement and shall not be taken as an interpretation of any provision of this Agreement.; (v) this Agreement may be amended, waived, changed, modified or discharged only by an agreement in writing signed by all of the parties; (vi) this Agreement represents the entire understanding of the parties with respect to the subject matter hereof, and there are no representations, promises, warranties, covenants or
understandings with respect thereto other than those contained in this Agreement. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any purchase order issued by Customer with respect to the Hosting Services provided under this Agreement shall not be applicable and that any acceptance of such purchase order by Granite Web shall be for acknowledgment purposes only; (vii) failure to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of that term, covenant or condition or of any other term, covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other
time; (viii) the remedies set forth in this Agreement are cumulative and are in addition to any other remedies allowed by law. Resort to one form of remedy shall not constitute a waiver of alternate remedies; (ix) wherever used in this Agreement, the singular shall include the plural, and the plural shall include the singular. The use of any gender, tense or conjugation shall include all genders, tenses and conjugations; (x) the Parties are independent contractors and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership; and (xi) this Agreement is only between Granite Web and Customer, and does not make any third-party a beneficiary of this
Agreement, whether known or contemplated by either party. Further, this Agreement does not make Customer a third party beneficiary of any agreement that Granite Web may have with third parties, nor does this Agreement make Granite Web a third-party beneficiary of any agreement that Customer may have with third parties.