Web Development & Support Agreement
Whereas the following Agreement is made between POWERPRO LIVE and the Web Hosting, Domain, Website, Support customer, who will be referred to in this document as "Customer". The parties agree to the following, which shall apply during the term of this agreement: As part of the Service, PowerPro Live will provide Customer with use of the Service, including a Frontend browser interface, access and hosting which includes storage, search engine optimization, directory management, training and analytics. Customer's registration for, or use of, the Service shall be deemed to be Customer's employees or agents that agree to abide by this Agreement including any materials available on the PowerPro Live website incorporated by reference herein, including but not limited to the Privacy and Security Statements.
1. Charges and Payment of Fees
Customer shall pay all fees or charges to its account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the development costs and monthly support fees as detailed by the supplied PowerPro Live website pricing options. Payments are to be made monthly consistent with the Initial Terms unless otherwise stated in writing by a representative of PowerPro Live. These fees are nonrefundable. Customer agrees that they are liable for the fees in total during the month to month term. Support fees are charged at the beginning of each month for that months service. Customer must provide PowerPro Live with valid credit card as a condition once the online order form has been submitted. PowerPro Live, Inc. reserves the right to change the fees, applicable charges and usage policies and to introduce new charges at any time, upon at least 30 days prior notice to Customer, which notice may be provided by e-mail.
Support (Support) term shall be month to month unless otherwise noted. Certain Optional Functions shall be an initial six month term and continue month to month thereafter. See initial Sign Up Form for clarification. Customer shall be notified in writing if modifications are to be made to this monthly Support agreement.
Customer is liable for support fees or optional functions fee when there is a significant delay in providing feedback during the development or if situations are outside of PowerPro Live's control and delays are longer than two weeks then PowerPro Live may charge its fees for these products or services.
2. Excess Data Storage Fees
The maximum disk storage space provided to Customer at no additional charge, depending on the support plan choosen is a maximum of 150GB for site hosting. If the amount of disk storage required exceeds this limit, Customer will be charged the then-current storage fees. PowerPro Live will use reasonable efforts to notify Customer when the average storage used reaches approximately 90% of the maximum; however, any failure by PowerPro Live to so notify Customer shall not affect Customer's responsibility for such additional storage charges. PowerPro Live reserves the right to establish or modify its general practices and limits concerning storage of Customer data.
3. Billing and Renewal
PowerPro Live charges and collects in advance of use of the Service, PowerPro Live will automatically bill Customers’s credit card or issue an invoice to Customer every month for monthly fees at PowerPro Live's discretion. The renewal charge will be equal to the then current fee in effect at the time of renewal Fees for other services and will be charged per published rates on PowerPro Live's website. PowerPro Live's fees are exclusive of-all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties.
Customer agrees to provide PowerPro Live with complete and accurate billing and contact information. This information includes Customer’s legal company name, street address, e-mail address, name, cellular/mobile phone and telephone number of an authorized billing contact. Customer agrees to update this information within 5 days of any change to it. If the contact information Customer has provided is false or fraudulent, PowerPro Live reserves the right to terminate Customer's access to the Service in addition to any other legal remedies. If nonpayment is a result of a declined Customer credit card, PowerPro Live reserves the right to charge $5 per day until credit card has been sucessfully processed. Late payment fees begin after the 5th day of the month starting from the initial date of the first declined transaction.
For credit card payers, invoices will be generated at the start of a billing period and Customer's credit card will be charged simultaneously. If paying by other means, invoices will be generated at the start of a billing period and approximately one month in advance of the start of any renewal or subsequent billing period and shall be due within 30 days. Customer's account will be considered delinquent (in arrears) if payment in full is not received by the billing period start date.
4. Non-Payment and Suspension
In addition to any other rights granted to PowerPro Live herein, PowerPro Live reserves the right to suspend or terminate this Agreement and Customer's access to the Service if Customer's account becomes thirty (30) days or more delinquent (falls into arrears). Customer understands that PowerPro Live will deliver a complete website at the time of going live. Development and support fees are due to PowerPro Live and can be billed during the development stages if for any reason the Customer becomes unresponsive or incapable of adhearing to the development timeline due to the Customers own negligence. Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Customer will continue to be charged for Service during any period of suspension. If Customer Or PowerPro Live initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer's account computed in accordance with the Charges and Payment of Fees section above. Customer agrees that PowerPro Live may charge such unpaid fees to Customer's credit card or otherwise bill Customer for such unpaid fees and that PowerPro Live has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Customer’s account is 30 days or more delinquent.
5. Privacy & Security
PowerPro Live privacy and security policies may be viewed at http://www.powerprolive.com (homepage footer). PowerProLive.com reserves the right to modify its privacy and security policies from time to time.
6. License Grants
PowerProLive.com grants Customer a non-exclusive, non-transferable worldwide right to use the Service, solely for Customer's own internal business purposes subject to the terms of this Agreement. Customer grants to PowerPro Live the nonexclusive, worldwide, right to use, copy, store, transmit and display Customer Data solely to the extent necessary to provide the Service as requested by Customer. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Service or the content, (ii) modify or make derivative works based upon the PowerPro Live Service or the Content; (iii) commercially exploit the Service or the Content in any way, or (iv) create internet “links” to the Service or “frame” or “mirror” any Content contained in, or accessible from, the Service on any other server, wireless or Internet-based device. PowerPro Live shall not use the Customer Data for any purpose other than to provide the Service to Customer. All rights not expressly granted to Customer are reserved by PowerPro Live and its licensors.
7. Restrictions
You are permitted to store, manipulate, analyze, reformat, print, and display the Content only for your company’s business use. Including usage by suppliers, customers and potential customers. Unauthorized use, resale or commercial exploitation of the Service and/or the Content in any way is expressly prohibited. You agree not to reverse engineer the Service, or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service. You shall not copy, license, sell, transfer, make available, distribute, or assign this license or the Content to any third-party. You shall not create internet “links” to the Service or “frame” or “mirror” any Content contained on, or accessible from, the Service on any other server or internet-based device while this agreement is in effect.
8. Third-Party Interaction
Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Service or the Content, (ii) modify or make derivative Service of the content in any way, or (iii) create Internet links to the Service or “frame” or “mirror” any Content contained in, or accessible from, the Service on any other server, wireless or Internet-based device. PowerPro Live shall not use the Customer Data for any purpose other than to provide the Service to Customer.
9. Customer Responsibilities
Customer is responsible for any and all activities that occur under Customer's user accounts and shall abide by all applicable local state, national and foreign laws, treaties and regulation in connection with use of the Service, Customer shall: (i) notify PowerPro Live immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to PowerPro Live immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer or its users; (iii) assure that use of the Service shall at all times comply with all applicable local, state, federal, and international laws, regulations, and conventions, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data; and (iv) not impersonate another PowerPro Live user or provide false identity information to gain access to or use the Service.
10. Account Information and Data
All data submitted by Customer to the Service whether posted by Customer or by third parties, shall remain the sole property of Customer or such third parties, as applicable, unless specifically notified in advance. Customer, not PowerPro Live, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability; appropriateness and copyright of all Customer Data, and PowerPro Live shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data. In the event that Customer terminates this Agreement (other than by reason of Customer's breach), PowerPro Live will make available to Customer a file of the Customer Data within 30 days of termination notice if Customer so requests. PowerPro Live reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Customer's non-payment. Upon termination for cause, Customer's right to access or use Customer Data immediately ceases, and PowerPro Live shall have no obligation to maintain or forward any Customer Data.
11. Termination
This Agreement commences on the Effective Date of the completed PowerPro Live Order or Sign Up Form at PowerProLive.com or on the initial go live date. The Initial Term of this Agreement shall be determined by the Website Package Development and/or Support & Optional Functions phases at the time of subscription. If termination is requested prior to a Customer website going live, the Customer will be billed the then prevailing "Set Up" fee. Commencing on the Effective Date, Customer agrees to pay for the Service by completing Order Form and this Agreement. Support Services will commence on the first day of the site going live or the “Go Live” date. This Agreement will automatically renew in monthly increments upon the expiration of the initial term or any renewal term. Initial term may be (1) one or more months. Either party shall notify the other within 30 days prior to the end of the current term of its notice to terminate the Agreement. In the event that Customer terminates this Agreement (other than by reason of Customer's breach), PowerPro Live has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination. PowerPro Live will bill for its services regardless of termination notice by the client for any month where PowerPro Live services are still in effect.
Upon termination and after the initial term , PowerPro Live shall deliver a combined (a) website files and (b) mySQL database digital file. Otherwise PowerPro Live may waive services fee for those Customers that do not require Web Package Development services and where an existing PowerPro Live template is used for Customers use. In these instances, upon termination, PowerPro Live shall deliver only a mySQL database digital file.
Site backups are performed on a monthly basis. Site backups include site contents and mySQL database. Backups kept for a period of one month from the date of the most recent backup. Additional site backups are outside of this agreement and may be requested at an additional cost to Customer. Please contact your PowerPro Live representative for more information.
In the event of termination during the first initial term, one-half of remaining support fees are due for the remainder of this initial term. PowerPro Live representative shall deliver a written summary via email that lists the remaining period and the associated costs that Customer agrees to pay. Payment is due within (5) working days. Once payment is received, PowerPro Live may then deliver Customer website files as per this agreement.
12. Termination for Cause
Any breach of Customer's payment obligations or unauthorized use of the PowerPro Live Technology or Service will be deemed a material breach of this Agreement. PowerPro Live, in its sole discretion, may terminate Customer’s password, account or use of the Service if Customer breaches or otherwise fails to comply with this Agreement. PowerPro Live will make every effort to inform client of this termination and inform Customer at least five (5) business days prior to termination. In the event of a material breach of this Agreement PowerPro Live shall immediately notify Customer of such breach and Customer shall have 30 days from time of notification to cure such material breach before termination for cause can be implemented.
13. PowerPro Live Ownership
PowerPro Live alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the PowerPro Live Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service. PowerPro Live may use hyperlinks and/or work developed for its Customers or other communication items to promote its business in any matter as it sees fit. This includes all work whether completed or not.
This Agreement is not a sale and does not convey any rights of ownership in or related to the Service, PowerPro Live Technology or Intellectual Property owned by PowerPro Live to Customer. The PowerPro Live name, the PowerPro Live logo, and the product names associated with the Service are trademarks of PowerPro Live or third parties, and no right or license is granted to use them.
Websites are built at no charge to Customer however Customer does not own the website files or database. Ownership for websites can be transferred from PowerPro Live once Customer engages PowerPro Live support services for two years or more.
14. Third Party Rights
During use of the Service, Customer may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors, customers and suppliers 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 Customer and the applicable third-party. PowerPro Live and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third-party. PowerPro Live does not endorse any sites on the Internet that are linked through the Service. PowerPro Live may provide links to Customer only as a matter of convenience, and in no event shall PowerPro Live or its licensors be responsible for any content, products, or other materials on or available from such sites. PowerPro Live provides its services to Customer pursuant to the terms of this Agreement. Customer recognizes, however, that certain third-party providers of ancillary software, hardware, or services may require Customer's agreement to additional or different license or other terms prior to Customer's use of or access to such software/ hardware, or services on behalf of Customer.
15. Representation & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. PowerPro Live represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online help documentation under normal use and circumstances. PowerPro Live does not guarantee the help documentation content as supplied from third parties. Customer shall inform PowerPro Live and its representative of any inconsistency with Service and its functions and allow PowerPro Live to determine cause and provide Customer with its suggested solution(s) or third parties suggested solution within (5) working days from initial Customer contact. Customer represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Service and that Customer's billing information is correct.
16. Mutual Indemnification
Customer shall indemnify and hold PowerPro Live, 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 Customer of the representations and warranties; or (iii) a claim arising from the breach by Customer or Users of this Agreement, provided in any such case that PowerPro Live (iv) promptly gives written notice of the claim when Customer becomes aware of such claim (v) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless it unconditionally releases PowerPro Live of all liability and such settlement does not affect PowerPro Live’s business or Service); (vi) provides to Customer all available information and assistance; and (vii) has not compromised or settled such claim.
PowerPro Live shall indemnify and hold Customer and its 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 the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or trademark of a third party; (ii) a claim, which if true, would constitute a violation of PowerPro Live’s representations or warranties; or (iii) a claim arising from breach of this Agreement by PowerPro Live; provided that Customer (iv) promptly gives written notice of the claim to PowerPro Live; (v) gives PowerPro Live sole control of the defense and settlement of the claim (provided that PowerPro Live may not settle or defend any claim unless it unconditionally releases Customer of liability); (vii) provides to PowerPro Live all available information and assistance; and (viii) has not compromised or settled such claim. PowerPro Live, Inc. shall have no indemnification or obligation, and Customer shall indemnify PowerPro Live pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Customer's products, service, hardware or business processes.
17. Disclaimer of Warranties
POWERPRO LIVE, LINEAR SC AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY; SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT; POWERPRO LIVE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE/ TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (G) THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS; AND (H) ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE/ OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITED BY APPLICABLE LAW BY POWERPRO LIVE, LINEAR SC AND ITS LICENSORS.
18. Internet Delays
POWERPRO LIVE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. POWERPRO LIVE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
19. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20. E-Mail Services
The Customer has agreed that its email will not be hosted on PowerPro Live’s or its contractors or suppliers servers. When Customer selects that their email not be hosted on PowerPro Live's servers then PowerPro Live will redirect all e-mail traffic to Customers Email Hosting Service or the customer will be in control of DNS settings and it is soley their responsibility for all email functions and serviceability.
PowerPro Live is not responsible for email, Junkmail or any other type of communications that may be sent to Customer by individuals, form processors or by any other sources. Customer agrees that receiving emails and the process inherent within, is the responsibility of the Customer. PowerPro Live does not offer advice or consultation on Customer email methods, practices or standards for receiving or sending of Customers email.
21. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
22. Local Laws and Export Control
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. The user of this site (“User”) acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to Afghanistan, Burma, Cuba, Iraq, Iran, Libya, Sudan, or any other countries to which the United States and/or the European Union maintains an embargo, or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using this Site, User represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. User agrees to comply strictly with all U.S. and European Union export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required. This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, PowerPro Live and its licensors make no representation that the Service is appropriate or available for use in other locations. If Customer uses the Service from outside the United States of America and/or the European Union, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons or missile projects, unless specifically authorized by the United States Government or appropriate European body for such purposes.
23. Notice
PowerPro Live may give notice by means of a general notice on the Service, electronic mail to Customer's email address on record in PowerPro Live’s account information, or by written communication sent by first class mail or pre-paid post to Customer's address on record in PowerPro Live’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Customer may give notice to PowerPro Live (such notice shall be deemed given when received by PowerPro Live) at any time by any of the following: letter sent by confirmed facsimile to PowerPro Live at the following fax numbers (whichever is appropriate): 510-614-5651
24. Modification to Terms
PowerPro Live reserves the right to change the terms and conditions of this Agreement or its policies relating to the Service at any time and shall notify Customer in writing with an updated version of this Agreement within 30 days prior to modifications. Customer is responsible for reviewing this Agreement. Continued use of the Service after any such changes shall constitute Customer's consent to such changes.
25. Assignment
This Agreement may not be assigned by Customer without the prior written approval of PowerPro Live but may be assigned by PowerPro Live 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.
26. General
With respect to the U.S. Customers, this Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Alameda County, California.
As used in this Agreement and in any order now or hereafter associated herewith:
“Agreement” means this services agreement whether written or submitted online and any materials available on the PowerPro Live website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by PowerPro Live from time to time in its sole discretion; “Content” means the audio and visual information, documents, software, products and services contained or made available to Customer in the course of using the Service; “Customer, You or Customer's” means the individual or legal entity, its directors, officers, affiliates agents, and employees, as identified in the registration and identification data provided to PowerPro Live; “Customer Data” means any data, information or material provided or submitted by Customer to PowerPro Live in the course of utilizing the Service; “Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen or upon a signed estimate of services, “Initial Term” means the period during which Customer is obligated to pay for the Service equal to the billing frequency selected by Customer during the subscription process, if subscription process is applicable. If the billing frequency is quarterly, the Initial Term is one quarter; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature; “Administrator(s)” means those Users designated by Customer who are authorized make substantial changes to all Content, functions or other website elements. In the event of any conflict between the terms of this Agreement and the terms of any additional agreements, the terms of the most current (by date) Agreement shall prevail; “PowerPro Live” a division of Linear SC, Inc. a California corporation, having its principal place of business at 303 W. Joaquin Ave., Suite 240, San Leandro, CA 94577; PowerPro Live proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by PowerPro Live in providing the Service; “Service(s)” means the specific edition of PowerPro Live online website software, customer relationship management, billing, data analysis, and other corporate services identified during the ordering process, developed, operated, and maintained by PowerPro Live to which Customer is being granted access under this Agreement, Including the PowerPro Live Technology and the Content; “System Administrator(s)” means those Users designated by the Customer – who are authorized to create User accounts and otherwise administer Customer's use of the Service; “User(s)” means Customer's, employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by PowerPro Live at Customer's request).
27. Authorization
The Customer engages POWERPRO LIVE as an independent contractor for the specific project of developing software to be hosted on PowerPro Live’s or its contractors or suppliers, web servers. The Customer hereby authorizes PowerPro Live as its web site developer. The Customer hereby authorizes this contract as written notification.
28. Services Overview
PowerPro Live shall provide:
(A) Domain Name registration services. These services will include payment to Internet governing body for an annual term. It is necessary for PowerPro Live to administer to this requirement to point/guide traffic to its or its suppliers website servers that will host Customer web pages. PowerPro Live and its representatives will instruct the Customer at the appropriate time that fees for this phase of development are due. Upon payment this phase shall be considered complete. Processed payments shall serve as a notice to Customer indicating the management and coordination of this phase as complete. This is a nonrecurring charge for (1) domain name as long as Customer is within their initial term or has agreed to renew on an annual basis. Other domains used for forwarding or other use are not part of the included fees of PowerPro Live. Payments for (1) domain name are considered part of the monthly Support Plan charges. For Domain names not in direct control or administered by PowerPro Live, PowerPro Live will not be responsible for fees or control of these Domain names. If failure to administer to Customer controlled Domain names occur, it is the Customers responsibility to manage and correct their Domain name administration and coordination failures. If PowerPro Live is asked to consult or assist in any way, PowerPro Live may charge Customer at the then prevailing consulting rate for its work or services when assisting Customer.
(B) Creative development services. Creative Development services are directly related to specific goals and objectives as defined by Customer and PowerPro Live. It is not the intention of this agreement to clarify or define a Customers look and feel or creative content. Preliminary discussions between Customer and PowerPro Live shall define creative goals and objectives. Upon completion of Domain name registration services, creative work shall commence. Upon completion and approval of creative development, Customers website shall “golive”. The Customers live site shall indicate the creative development phase as complete and payment for this phase of development shall be due.
(C) Support
All PowerPro Live websites require a Support Plan. Several plan types exist and Customer will need to select from the then appropriate plan types. Work hours shall not rollover from one month to another. Hours expire at the end of each month. Support Plans and their fees begin and are recorded on the first day of a live website. New Support Plan agreements are required when new functions, services or changes in the type of Support Plan is chosen. At the time of revision, new Support Plans start dates are recorded and a new Support Plan becomes effective. Customer can upgrade/move up in support plan at any time. Customer will need to provide a 30 day, advance notice when moving up to another support plan. To downgrade support plans, customer must have been at current plan for at least 6 months.
C1. Web/email hosting services. PowerPro Live does not offer email services. Clients will use 3rd party services such as Outlook 365 or Gmail For Business. These email services are exclusive of PowerPro Live’s monthly Support Plan agreement. PowerPro Live representatives will not administer to a clients email configuration. It is up to the Customer to manage their email effectively.
C2. Search engine optimization services. Search Engine Optimization (SEO)
Customer acknowledges that PowerPro Live and Customer representative will be responsible for SEO implementation upon approved agreement.
SEO services are intended to provide the Customer with preferential positioning in selected search engines. SEO services include:
• Research keywords and phrases to select appropriate, relevant search terms.
• Edit various URL's, html tags and page text as necessary.
• Edit image text as necessary.
• Create as required, additional web pages for the purpose of “catching” keyword/phrase searches.
• Provide "Backlinks" for Customer where possible.
Customer acknowledges that PowerPro Live has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. This service is inclusive of PowerPro Lives monthly support agreement.
C3. Site Analytic reports
Analytic Reports generate detailed statistics about Customers visitors to their website. The service provides (1) monthly report of site positioning. These reports are available one per month. Reports may be requested for other periods of site usage at an additional cost. Please contact your PowerPro representative for additional information on report functions. This service is inclusive of PowerPro Lives monthly support agreement. PDF reports are emailed to Customer at the beginning of each month summarizing the prior months activitiy.
C4. Training
PowerPro Live will assist in training (1) Customer employee or representative in the proper use of adding and editing content to their PowerPro Live website. This training shall consist of a verbal review of content editing procedures and/or a training video loaded to the private area of Customers website. Training not to be more than (1) hour per month for any Support Plan offered by PowerPro Live. See the most current PowerPro Live Summary of Fees and Plan Types document for more information. PowerPro Live is not responsible for the proper use of Customer’s computers or software and/or it’s ability to properly use email or browser functions.
29. Service Level
PowerPro Live shall guarantee system availability to the Service (excluding limitation outside of the control of PowerPro Live and its vendors) on a guaranteed 98% basis between the hours of 9 am and 6 pm Pacific time five days a week. The Service will be available on a non-guaranteed basis all other hours of the day. From time to time the Service will be unavailable for purposes of maintenance, upgrades, reconfigurations, etc. This maintenance will generally take place during evening or weekend hours, however, in certain circumstances, it may take place during the guaranteed hours stated above. In such cases, PowerPro Live will make every effort to notify Customer and Users of any planned downtime with a minimum 24 hour notice. If for any reason within the control of PowerPro Live, the Service is unavailable during the guaranteed hours outlined above for a period of time which exceeds the guaranteed level, PowerPro Live will credit Customer’s account an amount equal to 5% of the Customer’s bill for such unavailable product feature of the Service for each 24 hours of downtime, not to exceed the total portion of such feature charges as billed for the previous month.
30. Force Majeure
Neither party shall be considered in default in performance of its obligations of this Agreement if performance of such obligations is prevented or delayed by acts of war, natural disasters, labor disputes, or any similar cause beyond the control of the other party. Time of performance of either party’s obligations under this Agreement shall be extended by the time period reasonably necessary to overcome the effects of such force majeure occurrence. In no event shall this section excuse, or delay the time for, any payments otherwise due from or previously billed to Customer.
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The above terms and conditions have been read and understood and are hereby accepted.