TECHNOLOGY SERVICES AGREEMENT
THIS WEBSITE DESIGNING AND HOSTING AGREEMENT (hereinafter “Agreement”) is made as of today, by and between _MunchEm (Division of Sappote, Inc.), having address at _6735 Conroy Windermere Road Suite 213 Orlando, FL 32835_ (hereinafter “Provider”), and Your Restaurant (hereinafter “Customer”). The Provider and the Customer may individually be referred to as “Party”, or, collectively as “Parties”.
WHEREAS, Provider is engaged in designing websites and applications of electronic data and documents (hereinafter “Website” and Apps);
WHEREAS, Customer desires to use the services of Provider;
WHEREAS, Provider wishes to enter in this Agreement to perform such services on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration as set forth herein, and intending to be legally bound, the Parties hereto agree as follows:
1. DESCRIPTION OF SERVICES
Provider shall conduct design and implementation services as well as optional services as chosen by Customer from amongst a listing of service options currently available and listed by Provider at www.munchem.com. Customer shall submit a written request (by U.S. mail, electronic mail or by facsimile) to Provider detailing the services that the Customer desires Services shall generally include the following: graphical design, conversion of conventional media into electronic form, design of HTML code for document formatting, an internet account to host the implemented Website, help with submission of Website identification address to search engines. The Initial Services may be extended or modified, at the electronic written request of Customer, to encompass design work that is in addition or in deviation to those outlined by Customer as the Initial Services (the “Additional Service”).
Our Service Charges
Please refer to www.munchem.com/pricing.aspx for feature and pricing options.
2. LAUNCH DATE
The projected launch date of the Website is 2 weeks from the sign up date, provided the Customer provides Provider with all necessary materials and personal support. Customer understands that any delays in providing all necessary materials and support personal will prolong the launch date of the Website.
3. PAYMENT
Payment shall be made by credit card, cash, check, or money order, in US dollars, made payable to Provider. First payment needs to be for the first full year’s amount, made up-front at the time of signing this agreement. All monthly hosting fees contracted will commence monthly billing on the first of the month after contract is received by Provider and domain is registered or transferred. All prices are subject to change with thirty (30) days written notice to Customer. The charge for Additional Services, as mentioned in paragraph 1 above shall be billed at the per hour rate listed by Provider under the heading of “Additional Services” by MunchEm.
4. DELINQUENT PAYMENT PENALTIES
Provider reserves the right to render the site inaccessible if monthly invoices are delinquent by fifteen (15) days or more. Also, the customer support center will remain inaccessible until all outstanding invoices are paid in full. In the event that the Customer's invoices are delinquent for a period of forty five (45) days or more, the Provider reserves the right to terminate this Agreement under the provisions as mentioned in paragraph 12 below.
Customer agrees to pay any and all federal, state, or municipal sales or excise taxes that may apply to the contracted services provided by Provider. Should Provider be found to accrue any of these taxes in direct relation to the Customer, the amounts of those taxes will appear as an adjustment to the prices as mentioned in Paragraph 3 above.
5. LIMITATION OF LIABILITY
Provider makes no warranties of any kind, whether expressed or implied, for his services. Provider specifically disclaims any implied warranties of merchantability or fitness for any particular purpose. Provider will not be responsible for any losses or damages resulting from delays, non-deliveries, missed-deliveries, service interruption, downtime, or Customer’s errors or omissions. In the event that through his own negligence Provider fails to provide services, Provider’s total liability will be limited to the refund of Customer’s monthly service fee for the month during which interruption occurred, prorated according to the actual time for which Provider failed to provide services. Downtime for regularly scheduled maintenance of Provider’s network shall not be considered failure to provide services. Provider shall have no liability for failure to provide services resulting from the acts or omissions of third parties. Provider will not under any circumstances be responsible for consequential damages, including, but not limited to, any consequential damages arising from Provider’s failure to provide services in accordance with this Agreement.
6. INDEMNIFICATION
Customer agrees to indemnify, defend and hold Provider harmless from and against all claims, suits, proceedings, expenses, losses, liabilities, or damages (collectively “Claims”) arising from the use of services pursuant to this Agreement. This includes but is not limited to:
a. Claims of third parties, including patrons of Customer, arising out of, resulting from, or related to Customer’s negligence or any other use of the Website by Customer.
b. Any Claims for libel, slander, invasion of privacy, or infringement of copyright for materials provided by Customer and posted by Provider or posted by Customer.
Customer agrees to defend Provider against any such Claim he is legally liable for and to pay, without limitation, all litigation costs, reasonable attorney’s fees and court costs, settlement payments, and any damages awarded or resulting from any such Claim. Provider agrees to indemnify, defend and hold harmless the Customer against all claims, suits, proceedings, expenses, losses, liabilities, or damages (collectively “Claims”) arising from the use of services pursuant to this Agreement. This includes but is not limited to:
a. Claims of third parties, arising out of, resulting from, or related to Provider’s negligence.
b. Claims for libel, slander, invasion of privacy, or infringement of copyright for materials provided by and posted by Provider. Provider agrees to defend the Customer against any such Claim he is legally liable for and to pay, without limitation, all litigation costs, reasonable attorney’s fees and court costs, settlement payments, and any damages awarded or resulting from any such Claim.
7. OFFENSIVE OR ADULT MATERIALS
Provider exercises no control over material available from the internet including material accessed through the Provider’s network. Some material may be considered offensive or adult in nature. All responsibility for access to material is with the Customer. Provider may refuse to host and/or design any web page or site it so chooses. Customer hereby releases and agrees to indemnify Provider from all claims resulting out of the Customer’s Website content, unless intentionally placed there by someone in direct employment of Provider.
8. OWNERSHIP OF INTELLECTUAL PROPERTY
Copyright to the finished assembled work of web pages produced by Provider is owned by Provider. The Customer is assigned rights to use as a Website the design, graphics, and text contained in the finished assembled Website. Rights to photos, graphics, work-up files, and computer programs are specifically not transferred to the Customer, and remain the property of Provider. Provider and its subcontractors retain the right to display graphics and other web design elements as examples of their work in their respective portfolios. Source code, graphics and text provided by Customer, is owned by Customer.
9. USE BY CUSTOMER
Customer agrees and represents to Provider that Customers use of the Website shall be for lawful activities only.
10. LAWS AFFECTING ELECTRONIC COMMERCE
From time to time governments enact laws and levy taxes and tariffs affecting internet electronic commerce. The Customer agrees that the Customer is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Provider and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Customer’s exercise of internet electronic commerce.
11. TERM AND TERMINATION OF AGREEMENT
The term of this Agreement shall be one year from the day and year first written above unless terminated pursuant to the provisions. Customer may terminate this Agreement without cause. If Customer chooses for any reason to terminate this Agreement prior to the term as listed above, the Customer agrees to reimburse Provider for any outstanding invoices due and for any services provided but unbilled as of the date of termination. Note that first year hosting charges are non-refundable.
Provider may terminate this Agreement at any time without cause and in such an event, However, in the event Provider terminates this Agreement for the reasons as specified in paragraph 4, Customer shall remain liable for any invoices unpaid and for any services provided and unbilled at the time of termination.
12. WAIVER
Failure to invoke any right, condition, or covenant in this Agreement by either Party shall not be deemed to imply or constitute a waiver of any rights, condition, or covenant and neither Party may rely on such failure.
13. HEADINGS
The various headings and titles used in this Agreement are for convenience only and shall not affect the interpretation of any of the provisions of this Agreement.
14. COUNTERPARTS
This Agreement may be executed in counterparts, all of which when taken together shall be deemed a fully executed agreement.
15. SEVERABILITY
If any part of this Agreement is unenforceable, the unenforceable part shall be construed to reflect as nearly as possible, the original intentions of the Parties. However, the other provisions of this Agreement shall remain in full force and effect.
16. AMENDMENT
No amendment, modification or extension of this Agreement shall be valid and binding on the Parties unless in writing and signed by both Parties.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the Parties with regard to the subject matter hereof, and replaces and supersedes all other agreements or understandings, whether written or oral.
18. GOVERNING LAW
This Agreement shall be construed according to and governed by the laws of the State Florida without regard to the conflicts of laws or provisions thereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed the day and year set forth above.