TERMS OF SERVICE
This document (the Agreement)
sets forth the principles, guidelines and requirements of
the Terms of Service of Warren Nash doing business as WozzaWorks(the
"Developer") governing the use by the customer ("Customer")
of Developer's services and products ("Services and Products").
The Developer retains the right to modify these Terms of Service
at any time and from time to time and any such modification
shall be automatically effective as to all customers when
adopted by Developer and published at
www.wozzaworks.com. Developer shall be the sole and final
arbiter as the interpretation of the following. By utilizing
the Developer's services and products, the Customer agrees
to be bound by the terms herein outlined.
1.1 "Change Notice"
shall have the meaning set forth in Section 3.
1.2 "Change Proposal"
shall have the meaning set forth in
1.3 "The Developer's Tools"
means any tools, both in object code
and source code form, which the Developer has already developed
or which the Developer independently develops or licenses
from a third party.
1.4 "Content" means
all text, pictures, sound, graphics, video and other data
supplied by Client for the Internet Site, as such materials
may be modified from time to time.
1.5 "Design Fee" means
the fees set forth in the Work Order for the development services
provided pursuant to Section 2.
1.6 "Domain Name" means
the domain name specified for the Internet Site by Client
from time to time. The initial Domain Name is specified in
the Work Order.
1.7 "Intellectual Property Rights"
means all know-how, trade secrets,
trademarks, copyrights, and patentable inventions, including
materials notes, designs, technical data, ideas, know-how,
research, reports, documentation and other information related
1.8 "Internet Site" means
the Content made available on pages under the Domain Name.
1.9"Pre-existing Developer Materials"
shall have the meaning set forth in
shall have the meaning set forth
in Section 8.
Client's requirements set forth in the Work Order, as amended
or supplemented in accordance with this Agreement.
1.12"Work Product" means
all HTML files, Java files, graphics files, animation files,
data files, technology, scripts and programs, both in object
code and source code form, all documentation and any other
deliverable prepared for Client by the Developer in accordance
with the terms of this Agreement.
2. INTERNET SITE DEVELOPMENT.
2.1 Delivery of Initial Content.
Client shall deliver to the Developer
all Content that Client intends for the Developer to incorporate
into the Work Product (the "Initial Content"). The
Initial Content shall be in the format(s) specified in the
2.2 Development and Delivery. The
Developer shall provide design, programming and other consulting
services as specified in the Work Order for the Design Fee
set forth therein. The Developer will use commercially reasonable
efforts to provide the Work Product to Client in accordance
with the Milestone Delivery Schedule. Acceptance of the Work
Product by Client shall not be unreasonably withheld and will
be deemed to have taken place on the first to occur of any
of the following: (i) fifteen (15) days have elapsed from
the date of delivery without Client having given the Developer
written notice of a material failure of the Work Product to
substantially conform to the Specifications set forth in the
Work Order; (ii) Client notifies the Developer in writing
that it accepts the Work Product or (iii) Client makes any
commercial use of the Work Product, other than purely for
testing purposes. Client may reject the Work Product only
if it does not substantially conform to the Specifications.
If the Developer receives a notice from Client of a material
failure of the Work Product to substantially conform to the
Specifications, the Developer shall use commercially reasonable
efforts to correct the nonconformance. The corrected Work
Product shall be delivered to Client for acceptance pursuant
to this Section. If the Developer cannot, after repeated efforts,
remedy such nonconformance, Client may terminate this Agreement
provided that the Developer returns to Client any fees previously
paid to the Developer hereunder.
2.3 Project Liaisons. Each
party's primary contact for development efforts shall be the
project liaisons specified in the Work Order or the person
otherwise designated in writing by Client or the Developer,
as the case may be.
2.4 Search Engine Registration. When
the Developer makes the initial final version of the Work
Product available to Client, the Developer shall propose to
Client six (6) search engines and directories where the Internet
Site should be registered. If requested by Client, the Developer
at its expense shall use commercially reasonable efforts to
promptly register all Internet Site pages with all (or a designated
subset) of such sites.
3. MODIFICATIONS. If
either party desires to modify the Internet Site (including
the Platform Requirements set forth in the Work Order) at
any time during the term of this Agreement, such party shall
describe the additional services or deliverables to the other
party (the "Change Notice"). Within __ days
of such Change Notice, the Developer shall submit a change
order proposal (the "Change Proposal") which includes
a statement of any additional charges and, if the Change Notice
is provided prior to initial delivery of the Work Product,
any adjustments to the Milestone Delivery Schedule resulting
from the proposed Change Notice. On Client's written approval
of the Change Order, the Change Order will become a part of
this Agreement. The Developer shall quote all charges for
the Change Orders at its then-current standard charges.
4. WEB HOSTING.
4.1 Services. Web hosting services
will be provided by Godaddy.com at the fees and
charges set forth in Exhibit A. Terms and Conditions for the
web hosting services may be found at Godaddy.com.
These terms and conditions may be subject to future change
at any time without noticiation to Client. Client represents
and warrants that it will comply with such terms and conditions.
Failure to comply will result in the termination of such services.
Client further agrees that any breach of such terms and conditions
may be subject to Section 9 of this Agreement.
4.2 Domain Name. If
requested by Client, the Developer shall cooperate with Client
in registering the Domain Name with GoDaddy.com. Client shall
be responsible for all registration expenses and shall own
all right, title and interest in and to the Domain Name and
all Intellectual Property Rights related thereto. Unless otherwise
specified by Client, the Developer shall list Client's project
liaison, as the administrative, technical and billing contact.
5.1 Fees. Except as otherwise specified
in the Work Order, the Developer shall invoice all fees monthly,
and payment terms are net thirty (30). The fee amounts indicated
on the Work Order do not include any federal, state,
local or other governmental taxes, excise taxes, tariffs or
other governmental charges that may be imposed on the sale,
transportation, production, storage or export of the Work
Product. Client shall pay any and all such taxes and charges
and the Developer, its agents and distributors, shall have
no liability therefore.
5.2 Expenses. Client
shall reimburse the Developer for all reasonable out-of-pocket
expenses which have been approved in advance by Client and
which are incurred by the Developer in the performance of
services hereunder, including but not limited to travel and
lodging expenses, long distance calls, and material and supply
costs, within thirty (30) days after Client's receipt of expense
statements including appropriate receipts or other evidence
of the expense.
6.1 Work Product. All right, title
and interest to Content and Intellectual Property in the Work
Product created by the Developer under this Agreement shall
be owned by Client, but such rights shall be subject to the
provisions of this Agreement (including without limitation
Section 6.2) and any rights of the Developer in Pre-existing
Developer's Materials incorporated into the Work Product.
6.2 Pre-existing Developer's Materials.
Notwithstanding anything in this Agreement
to the contrary, the Developer shall retain ownership of all
right, title and interest in and to the the Developer's Tools,
Content and all Intellectual Property developed, purchased
or licensed by the Developer or on the Developer's behalf
prior to this Agreement and to all Intellectual Property developed,
purchased or licensed by or on the Developer's behalf during
the term of this Agreement without the active participation
of Client ("Pre-existing Developer's Materials").
The Developer hereby grants to Client the perpetual, irrevocable,
nonexclusive, worldwide, royalty-free right and license to
use the Pre-existing Developer's Materials solely in connection
with the Work Product.
6.3 The Developer's Use of Work Product.
The Developer shall have the irrevocable,
perpetual, nonexclusive, worldwide, royalty-free right and
license to use, execute, reproduce, display, perform, distribute
internally or externally, and prepare derivative works based
upon the Work Product. It shall be a condition of this paragraph
that all Client Proprietary Information and any reference
to Client has been removed from the Work Product before such
use of the Work Product.
7. WARRANTIES AND COVENANTS.
7.1 The Developer's Warranties.
(a) The Developer warrants that
for a perod of three (3) months after delivery of the Work
Product pursuant to Section 2.2 (the "Warranty Period"),
the Work Product when installed and used in accordance with
any documentation the Developer may provide to Client, will
substantially conform to the description of the Work Product
as set forth in the Specifications in the Work Order. Client's
exclusive remedy and the Developer's sole liability under
this warranty shall be for the Developer (at the Developer's
own expense) to attempt through reasonable efforts to correct
any material failure of the Work Product to perform as warranted,
if such failure is reported to the Developer within the Warranty
(b) The Developer warrants that it has no knowledge
that any part of the the Developer's Tools infringe or otherwise
make use of any copyright, trademark, trade secret or other
proprietary right of any other party. In the event that a
court of competent jurisdiction rules by a ruling that cannot
be appealed that the Developer has, in fact, infringed upon
the copyright of a third party, the Developer shall either
(i) obtain a license from that third party or modify the Developer's
Tools so that they are not infringing but still functions
as represented in this Agreement, or (ii) if such alternative
is not commercially reasonable, the Developer may terminate
this Agreement and return to Client the Design Fees paid by
Client hereunder, pro rated over a one(1) year period. The
remedies set forth in this Section 7 shall be Client's exclusive
remedies in the event of any breach by the Developer of the
representations set forth in this Section 7.1(b).
(c) The Developer makes no warranty regarding the web host
services. Client may rely on the warranties provided in the
terms and conditions found at Godaddy.com.
In the event of a breach of such warranties by Godaddy.com,
Client agrees to seek redress against Godaddy.com.
Client agrees that this is its exclusive remedy and that Developer
has no liability whatsover.
7.2 WARRANTY DISCLAIMER; LIMITATION
THE ABOVE ARE THE ONLY WARRANTIES OF ANY KIND, EITHER EXPRESS
OR IMPLIED, THAT ARE MADE BY THE DEVELOPER AND THE DEVELOPER
DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED
TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT
AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION
OR ADVICE GIVEN BY THE DEVELOPER, ITS AGENTS OR EMPLOYEES
SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF
THE WARRANTIES IN THIS AGREEMENT. SUCH WARRANTIES SHALL NOT
BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE SO LONG
AS THE DEVELOPER IS MAKING GOOD FAITH EFFORTS TO REMEDY ANY
BREACH UNDER THE TERMS OF THE WARRANTY. NEITHER THE DEVELOPER
NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION
OR DELIVERY OF THE WORK PRODUCT SHALL BE LIABLE FOR ANY DIRECT,
INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF
THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE WORK
PRODUCT, EVEN IF THE DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO CASE SHALL THE DEVELOPER'S AGGREGATE
LIABILITY FOR ALL MATTERS ARISING OUT OF THE SUBJECT MATTER
OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE,
EXCEED THE DESIGN FEE ACTUALLY RECEIVED BY THE DEVELOPER FROM
CLIENT PURSUANT TO THIS AGREEMENT.
7.3 Client Covenants.
Client shall not distribute on the
Internet Site any Content that: (a) infringes on the Intellectual
Property Rights of any third party or any rights of publicity
or privacy; (b) violates any law, statute, ordinance or regulation
(including without limitation the
laws and regulations governing export control, unfair competition,
or antidiscrimination), (c) is defamatory, trade libelous,
unlawfully threatening or unlawfully harassing; (d) is obscene,
pornographic or indecent; or (e) contains any viruses, trojan
horses, worms, cancelbots or other computer programming routines
that are intended to damage, interfere with, surreptitiously
intercept or expropriate any system, data or personal information.
is confidential and valuable information which a party desires
to protect against disclosure or competitive use or which
is in written form and designated as proprietary or confidential
or is disclosed orally and is designated either orally or
in writing as being proprietary or confidential. The Developer
and Client shall each safeguard the other's Proprietary Information
in the same manner as they safeguard their own valuable proprietary
information. Each of the parties acknowledges that the other's
Proprietary Information constitutes such party's valuable
proprietary information and trade secrets, and that unauthorized
disclosure or use of this information would cause irreparable
damage to the proprietor of such information. Each of the
parties expressly agrees and acknowledges that it is entering
into this Agreement, and providing the other copies of its
Proprietary Information hereunder, in reliance upon the other's
foregoing promise of confidentiality. Any provisions herein
concerning non-disclosure and non-use of Proprietary Information
of a party shall not apply to any such information which (i)
is already known to the other party when received from the
disclosing party, (ii) is or becomes publicly known through
publication or otherwise and through no wrongful act of the
other party, (iii) is received from a third party without
similar restriction and without breach of this Agreement,
(iv) is approved for release or use by written authorization
of the other party; provided, however, that prior to any disclosure
or use by a party in reliance upon the above-referenced exemptions,
the disclosing party will give the other party ten (10) days'
notice specifying the information to be disclosed and the
exemption being relied upon.
9.1 Client. Client
shall indemnify, defend and hold harmless the Developer from
and against (a) all liability to others and all claims, causes
of action and suits of others, including without limitation
employees, subcontractors or agents of the Developer, arising
out of the Content or out of or from the use by Client of
the Internet Site, or the exercise by Client of any rights
granted to it under this Agreement, and (b) reasonable cost
and expense (including, without limitation, reasonable attorneys'
fees) arising from or relating to the foregoing. Client shall
be notified promptly of any such claims in writing and, if
requested to defend said action, given full and complete authority,
information and assistance for the defense of same, provided,
however, Client shall have no authority to enter into any
settlement on behalf of the Developer without the prior written
consent of the Developer. In all events, the Developer shall
have the right to participate in the defense of any proceedings
with counsel of its own choosing.
9.2 The Developer. The
Developer shall indemnify and hold harmless Client from and
against (a) all liability to Client and all claims, causes
of action and suits arising out of or from the direct infringement
by the Developer of a third party's copyright, patent or trade
secrets, and (b) reasonable cost and expense (including reasonable
attorneys' fees) arising from or relating to the foregoing.
Client shall notify the Developer promptly of any such claims
in writing, and if requested to defend said action, give full
and complete authority, information and assistance for the
defense of same; provided , however, that the Developer shall
have no authority to enter into any settlement on behalf of
Client without the prior written consent of Client. In all
events, Client shall have the right to participate in the
defense of any proceedings with counsel of its own choosing.
TERM AND TERMINATION.
10.1 Term. The initial
term of this Agreement shall be as specified in the Work Order,
and this Agreement shall automatically renew on a month-to-month
basis thereafter unless and until terminated with thirty (30)
days' prior written notice by one party to the other; provided,
however, that the term of the web hosting agreement set forth
in Section 4.1 shall terminate at the end of the next month
following written notice from one party to the other.
10.2 Termination for Cause. Except
as otherwise provided for herein, either party may terminate
this Agreement upon the material breach of the other party,
if such breach remains uncured for thirty (30) days following
written notice to the breaching party.
10.3 Termination During Initial Internet
Site Development. In
the event that Client terminates the Agreement prior to initial
acceptance of the Work Product, Client shall return all Work
Product to the Developer and the Developer shall return any
Initial Content and refund to Client any portion of the Design
Fee previously paid to the Developer hereunder, excluding
the Developer's reasonable expenses to date. All licenses
granted hereunder shall terminate.
Sections 1, 4.1, 5, 6, 7, 8, 9
and 10 shall survive any termination or expiration of this
11.1 Governing Law. This
Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Massachusetts. The parties
hereto consent to the jurisdiction of the courts of the Commonwealth
of Massachusetts and the United States District Court of Massachusetts,
as well as to the jurisdiction of all courts from which an
appeal may be taken from which courts, for the purposes of
any suit, action or other proceeding relating to this Agreement
or with respect to any transaction contemplated hereby, and
expressly waive any and all objections the parties hereto
may have as to the venue of such courts to settle or adjudicate
any claim or controversy arising hereunder, with respect to
any transaction contemplated hereby. The parties hereto further
agree, to the fullest extent permitted by law, that a summons
or complaint commencing an action or proceeding in any of
such courts shall be served properly and shall confer personal
jurisdiction if served personally or by registered or certified
mail to such party at the address provided for it in this
Agreement or as otherwise provided under the laws of the Commonwealth
11.2 Scope of Relationship. No
agency, partnership, joint venture or employment is created
between the parties as a result of this Agreement. Neither
party is authorized to create any obligation, express or implied
on behalf of the other party, nor to exercise any control
over the other party's methods of operation.
11.3 Severability; Waiver. If
any provision of this Agreement is held to be invalid or unenforceable
for any reason, the remaining provisions will continue in
full force without being impaired or invalidated in any way.
The parties agree to replace any invalid provision with a
valid provision which most closely approximates the intent
and economic effect of the invalid provision. The waiver by
either party of a breach of any provision of this Agreement
will not operate or be interpreted as a waiver of any other
or subsequent breach.
11.4 Headings. Headings
used in this Agreement are for reference purposes only and
in no way define, limit, construe or describe the scope or
extent of such section or in any way affect this Agreement.
Neither party may assign
this Agreement or the rights and duties hereunder without
the prior written consent of the other party.
11.6 Notice. Any
notices required or permitted hereunder shall be given to
the appropriate party at the address specified below or at
such other address as the party shall specify in writing.
Such notice shall be deemed given: upon personal delivery;
if sent by facsimile, upon confirmation of receipt; if sent
by recognized overnight carrier, upon confirmation of receipt;
or if sent by certified or registered mail, postage prepaid,
five (5) days after the date of mailing.
11.7 Counterparts. This
Agreement may be executed in one or more counterparts, each
of which shall be deemed an original and all of which shall
be taken together and deemed to be one instrument.
11.8 Entire Agreement. This
Agreement, including any Exhibits attached hereto, sets forth
the entire understanding and agreement of the parties and
supersedes any and all oral or written agreements or understandings
between the parties as to the subject matter of this Agreement.
This Agreement may be amended only by a writing or a Work
Order signed by both parties. Neither party is relying upon
any warranties, representations, assurances or inducements
not expressly set forth herein.
1. All Content shall be provided
to the Developer by Client in the formats specified below:
2. All text shall be provided in [ASCII, RTF, MS Word, PDF,
MS Publisher, PageMaker or HTML].
3. All graphics shall be provided in [TIFF, GIF, JPEG, or
The Internet Site shall not include
any of the Developer's Tools.
The Work Product and the Developer's
Tools provided to Client by the Developer shall be compatible
with the following browser(s): Netscape 4+, MS Internet Explorer
The Work Product shall be implemented for a NT/Windows 2000
server running on the following server softwareASP.
Internet Site Specifications
1. The graphics used in Client's
Internet Site shall be in GIF or JPEG.
2. No item in the Internet Site shall exceed 750 pixels in
3. Each page shall include the following initial "head"
<meta name="description" content=" ">
<meta name="keywords" content=" ">
<meta name="revisit-after" content="14 days">
<meta name="robots" content="index, ALL,
4. The Developer shall develop the Internet Site to project
the highest professional image. The Developer shall not include
any links to other sites without Client's prior written consent.
5. The maximum size for any page shall be 75Kb the average
size of any page shall be 25Kb, and the user shall have the
option to select a low-graphics version of the Website to
minimize download time.