BIGGIWEB SERVICE AGREEMENT :
THIS SERVICES AGREEMENT IS ENTERED INTO BETWEEN
BIGGIWEB AND THE PERSON OR ENTITY THAT USES AND OR PURCHASES BIGGIWEB SERVICES. ANY CUSTOMER
WHO DOES NOT AGREE TO BE BOUND BY THESE TERMS SHOULD IMMEDIATELY STOP USE OF THE SERVICES AND
NOTIFY BIGGIWEB ACCOUNT MANAGEMENT SO THAT THE CUSTOMER’S SERVICE CAN BE CANCELLED.
PLEASE READ THE TERMS CAREFULLY BEFORE USING BIGGIWEB SERVICES. BY USING BIGGIWEB SERVICES, YOU ACKNOWLEDGE
THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE
TO BE BOUND BY IT.
Biggiweb provides website Development and development services
via the Internet and other platforms The Services through
Biggiweb's Internet webservices. Customer will use the Services
in accordance with this Agreement and as Biggiweb request.
Hosting Services are provided by Biggiweb in accordance with
the Hosting Agreement found at here under. Biggiweb is willing
to provide Customer with the Services as set forth below.
The parties agree as follows:
1. PROVISION OF SERVICES; LICENSE.
(a) If Customer pays Biggiweb the fees set forth in the order
summary, Biggiweb will provide Customer with the Services
ordered and the website Biggiweb creates ("Deliverable")
as described in the order summary under this Agreement's terms
and conditions. (b) Biggiweb grants to Customer a limited,
personal, non-exclusive, non-transferable license to use the
Deliverables set forth in the Customer order summary. (c)
This is a license, not a transfer of title, and is subject
to the following restrictions: Customer may not (1) modify
the Deliverables except with the tools incorporated into the
Deliverables; (2) use Deliverables for any third party commercial
purpose; (3) decompile, reverse engineer, or disassemble software
Deliverables; (4) remove any copyright or other proprietary
notices from the Deliverables; or (5) transfer the Deliverables
to another person. Customer will prevent any unauthorized
copying of the Deliverables. (d) With respect to any Biggiweb
logos and hypertext link logos provided with the Deliverables,
Biggiweb grants Customer a non-assignable, non-exclusive,
royalty free license solely to use the logos or link logo
as a hypertext link icon to allow users to link from Customer's
web page to the Biggiweb web pages, based on the following
terms and conditions:
1.1 Customer acknowledges the validity and Biggiweb's exclusive
ownership of all right, title, and interest in and to all
Biggiweb logos and link logo marks (the "Marks")
and, during or after the term of this Agreement, will not
contest, or help others to contest, the ownership or the validity
of any registrations or rights of Biggiweb now owned or obtained
relating to the Marks. 1.2 Customer will not use any names,
marks, terms, graphics, or other materials on its Web page
or site that are likely to cause confusion with or dilute
the distinctiveness of the Marks or to damage the reputation
or commercial image of Biggiweb or any of their products.
1.3 Biggiweb, in its sole discretion, may terminate this license
immediately for any reason. Upon termination of this license,
Customer will immediately cease all further use of the Marks,
or any other similar mark, name or logo, including any name
or mark comprising the term "Biggiweb" and "Biggiweb
Internet Solutionsi".
2. OWNERSHIP
Biggiweb and its suppliers will retain all title to and ownership
of the Deliverables. Deliverables are copyrighted and are
protected by worldwide copyright laws and treaty provisions.
Except as provided in this Agreement, the Deliverables may
not be copied, reproduced, modified, published, uploaded,
posted, transmitted, or distributed in any way, without Biggiweb's
prior written permission. Except as expressly provided in
this Agreement, Biggiweb does not grant any express or implied
right to Customer under any patents, copyrights, trademarks,
or trade secret information. Other rights may be granted to
Customer by Biggiweb in writing or incorporated elsewhere
in the Deliverables.
3. BIGGIWEB OBLIGATIONS.
Except for initial edits made before final delivery, Biggiweb
is not obligated to correct any bugs, defects or errors in
the Services or Deliverables or to otherwise support or maintain
the Services or Deliverables. Biggiweb will provide reasonable
technical support to Customer in the form of telephone consulting
and "e-mail" to Customer during Biggiweb's normal
business hours and at Biggiweb's standard pricing.
4. TERM AND TERMINATION.
(a) This Agreement is effective on the date Customer accepts
the terms of this Agreement and will continue unless terminated
under Section 4(b). (b) Customer may terminate this Agreement
without cause upon notice to Biggiweb. Biggiweb may terminate
this Agreement after 5 days' written notice to Customer if
Customer materially breaches this Agreement, including failure
to pay and failure to cure the breach during the 5-day period.
(c) Upon the termination of this Agreement, Customer will
return to Biggiweb all copies of any Deliverables Biggiweb
provided to it. Sections 1(c) 2, 5, 4 and 6 will survive termination
of this Agreement.
5. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
(a) THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY
WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OR TITLE, WHICH BIGGIWEB DISCLAIMS.
(b) BIGGIWEB IS NOT LIABLE FOR: (1) ANY LOSS OF USE, LOSS
OF DATA, INTERRUPTION OF BUSINESS, OR (2) ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND
(INCLUDING, LOST PROFITS) REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY
OR OTHERWISE, EVEN IF BIGGIWEB HAS BEEN ADVISED OF THE POSSIBILITY
OF THESE DAMAGES. BIGGIWEB'S LIABILITY WILL NOT EXCEED THE
AMOUNT CUSTOMER PAID TO BIGGIWEB DURING THE 3-MONTH PERIOD
BEFORE THE ACTION AROSE. CUSTOMER ACKNOWLEDGES THAT THESE
LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND
ABSENT SUCH LIMITATIONS BIGGIWEB WOULD NOT ENTER INTO THIS
AGREEMENT.
6. MISCELLANEOUS
This Agreement will be governed solely by the laws of the
State of Arizona, excluding its principles of conflicts of
laws. Any action under or relating to this Agreement will
be brought solely in the state and federal courts located
in Maricopa County, Arizona and each party submits to the
personal jurisdiction of these Courts. Each party's performance
under this Agreement will in all respects conform to all applicable
laws, rules and regulations of the United States governing
the export of technical information. Customer may not assign
this Agreement without the prior, written permission of Biggiweb.
Any purported assignment will be void and without any effect.
This Agreement may not be modified or amended except in writing,
signed by both parties. Any purported oral modification or
amendment of this Agreement will not be effective. Neither
party may waive any right under this Agreement, except expressly
and in writing. Any other purported waiver of any right will
not be effective. This Agreement is the entire agreement between
the parties with respect to this subject matter, and supersedes
all prior and contemporaneous discussions, negotiations, communications
and agreements with respect to this subject matter.
Webspace & Consulting Services Agreement:
Welcome to Biggiweb, Web site services brought to you by
Biggiweb Internet Solutions as a result of a marketing alliance
with the Internet ! This service Agreement ("Agreement")
governs your purchase and use of all Web site services, including
the Web development Services and the Hosting Services (collectively,
the "Services"), as described in the Order Form,
that you order and Biggiweb Internet Solutions ("Biggiweb")
accepts. The Web Development and Hosting Services include
the E-Commerce Services. You must register and accept the
terms of this Agreement in order to use the Services. BY CLICKING
ON THE "I ACCEPT" BUTTON BELOW, AND /OR REGISTERING
FOR AND USING or SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ
THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS
AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.
Biggiweb may modify any of the terms and conditions contained
in this Agreement and any policy or guideline by reference,
at any time in its sole discretion and may also determine
whether and when the modifications apply to existing or future
customers. Any modifications are effective upon posting of
the revisions on the Biggiweb Web site (the "Site").
Biggiweb will post a notice of modifications to this Agreement
on the Site for 30 days. Biggiweb may post modifications to
referenced policies and guidelines without notice to you.
Your continued use of the Services following Biggiweb's posting
of any modifications constitutes your acceptance of the modifications.
IF YOU DO NOT AGREE TO THIS AGREEMENT'S TERMS STOP THE USE OF BIGGIWEB SERVICES. IF YOU DO NOT AGREE TO THE
TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE our SERVICES
AND IMMEDIATELY NOTIFY Biggiweb OF YOUR TERMINATION OF THIS
AGREEMENT IN THE MANNER DESCRIBED IN SECTION 1.2 BELOW.
1. Term and Payment for Services
1.1 Term. This Agreement will be for an "Initial Term"
of either: (a) 30 days if you register for Web Services,
(b) 12 months from the order date if you register for pro
Services, or (c) as otherwise chosen by you in the Order Form,
located on the Site, at the time you register for the Services.
This Agreement will be automatically renewed (the "Renewal
Term") at the end of the Initial Term for the same period
as the Initial Term, unless you provide Biggiweb with notice
of termination or cancelation either: (a) at least 7 days
before the end of the Initial Term or the Renewal Term, whichever
is then applicable, if you registered for and are receiving
pro Services other than personal Services pre-paid for a 1-year
period, or (b) at least 30 days before the end of the Initial
Term or Renewal Term, whichever is then applicable, if you
registered for and are receiving Dedicated web Services or
have pre-paid for a 1-year period of pro Services. You must
provide Biggiweb with your notice of termination by clicking
on the "Cancel Service" button located on the Site.
Upon clicking on the "Cancel Service" button, you
will be asked to provide Biggiweb with sufficient customer
identification information so that Biggiweb may properly identify
you and your account. Any notice of termination will be effective
upon Biggiweb's receipt of notice. 1.2 Termination & cancelation
Policy. If you terminate or cancel the Services before the
end of the Initial Term or the Renewal Term, whichever is
then applicable: (a) Biggiweb will not refund to you any fees
paid in advance of termination, and (b) you will be required
to pay the lesser of 3 times the standard total(monthly) charge
or 100% of Biggiweb's standard monthly charge for each month
remaining in the term, unless otherwise expressly provided
in this Agreement. But if you have pre-paid for a 1-year period
of Long term Web Services, you are entitled to a pro-rata
refund of the remaining months in the annual period, calculated
at the standard monthly rate for the web Services, not the
discounted annual rate. You must submit your termination request
to Biggiweb in the manner described in Section 1.1. Biggiweb
may terminate this Agreement at any time and for any reason
by providing to you 30 days' prior written notice of termination.
If Biggiweb terminates this Agreement, Biggiweb will refund
to you the pro-rata portion of pre-paid fees attributable
to Services not yet rendered as of the termination date, unless
otherwise expressly provided in this Agreement. 1.3 Liability
and Obligations on Termination. If the Agreement expires or
is terminated for any reason, Biggiweb is not liable to you
because of the expiration or termination for compensation,
reimbursement or damages on account of the loss of prospective
profits, anticipated sales, goodwill or on account of expenditures,
investments, leases or commitments in connection with your
business, or for any other reason whatsoever flowing from
the termination or expiration. If you terminate this Agreement,
Biggiweb will not relieve you of any obligations to pay fees
and costs accrued before the termination date or any other
amounts you owe to Biggiweb under this Agreement. 1.4 Charges.
You will pay all charges for your use of the Services at the
then current Biggiweb prices, which will be exclusive of any
applicable taxes. You are responsible for paying all federal,
state, and local sales, use, value added, excise, duty and
any other taxes assessed with respect to our Services, other
than taxes based on Biggiweb's net income. 1.5 Payment. You
will pay all charges for Services in advance according to
the then current price for the Services. When registering
for Dedicated web Services, you must choose to pay for the
Services either by credit card or upon your receipt of an
invoice. If you register for Shared Hosting Services, you
must pay for the Services by credit card. If you choose to
pay by credit card when registering for Dedicated Web Services
or if you register for pro Services, you authorize Biggiweb
to charge your credit or debit card to pay for any charges
that may apply to your account. Biggiweb may accumulate any
supplemental charges, as described in the Order Form, that
you incur in your use of the Services ("Supplemental
Charges") until the charges exceed $20 and then charge
your card. You must notify Biggiweb of any changes to your
card account (including, applicable account number or cancellation
or expiration of the account), your billing address, or any
information that may prohibit Biggiweb from charging your
account. If you choose to be invoiced for personal Services,
Biggiweb will send an invoice to you for the Services for
the period for which you have registered for the Services.
Biggiweb may also send periodic invoices to you for any applicable
Supplemental Charges associated with your use of the Services.
You will pay to Biggiweb the amount indicated in each invoice
by the due date reflected on the invoice. If you fail to pay
any fees and taxes within 10 days from the applicable due
date for credit card or invoice payments, Biggiweb will assess
late charges equal to the lesser of 1.5% per month or the
maximum allowable under applicable law. Your failure to fully
pay any fees and taxes within 10 days after the applicable
due date is a material breach of this Agreement, justifying
Biggiweb in suspending its performance and terminating this
Agreement. If Biggiweb terminates for your material breach,
you must still pay past due fees plus interest. You are responsible
for any costs Biggiweb incurs in enforcing collection, including
reasonable attorneys' fees, court costs and collection agency
fees. If you reinstate Services, you must pay any fees associated
with reinstating Services. 1.6 30 Day Guarantee. If you are
not fully satisfied with the our Web Services, you may terminate
this Agreement at any time during the first 7 days from your
initial order date and receive a full refund of all payments
you made to Biggiweb for the Web Services. To receive your
refund, you must terminate this Agreement in the manner described
in Section 1.1 and cease using the Services, and Biggiweb
must receive your termination notice within the 30-day period.
Your notice must describe why you are not satisfied with the
Services.
2. Use of Services
2.1 Applicable Policies and Guidelines. The Biggiweb Acceptable
Use And Service Guidelines (the "Usage Guidelines")
govern the general policies and procedures for use of the
Services. Biggiweb's On-line Privacy Statement governs how
Biggiweb collects, stores, processes and uses information
associated with your use of the Services. The Usage Guidelines
and the On-line Privacy Statement are posted on Biggiweb's
Web site at www.Biggiweb.com (or such other location as Biggiweb
may specify) and may be updated from time-to-time. YOU SHOULD
CAREFULLY READ THE USAGE GUIDELINES. BY USING THE SERVICES,
YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE GUIDELINES
AND ANY MODIFICATIONS TO THE TERMS. Biggiweb MAY TERMINATE
YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE GUIDELINES OR
THIS AGREEMENT. 2.2 Material and Product Requirements. You
must ensure that all material and data placed on Biggiweb's
equipment is in a condition that is "server-ready,"
which is in a form requiring no additional manipulation by
Biggiweb. Biggiweb will make no effort to validate any of
this information for content, correctness or usability. If
your material is not "server-ready", Biggiweb may
reject this material. Biggiweb will notify you of its refusal
of the material and afford you the opportunity to modify the
material to satisfy Biggiweb's requirements. Use of the Services
requires a certain level of knowledge in the use of Internet
languages, protocols and software. This level of knowledge
varies depending on the anticipated use and desired content
of your Web site. You must have the necessary knowledge to
create and maintain a Web site. Biggiweb does not provide
this knowledge or customer support outside of our Services.
2.3 Bandwidth, Storage, and E-Mail Usage. For Services, you
will not exceed the bandwidth, storage and E-mail usage limits
in the Order Form. If you use any bandwidth or storage space
in excess of the agreed upon number of megabytes per month
or if you exceed E-Mail storage and attachment size limitations,
Biggiweb may, in its sole discretion, assess you with additional
charges, suspend the Service, or terminate this Agreement.
If Biggiweb elects to take any corrective action, Biggiweb
will not refund any unused pre-paid fees. Your use of your
account and access to it is your responsibility. You are responsible
for any unauthorized access to your account resulting in bandwidth,
storage and/or E-mail usage exceeding the limits in the Order
Form and resultant charges. 2.4 Domain Names. As part of our
Services, you will provide Biggiweb with a registered domain
name or names, or Biggiweb will register domain name(s) you
select if the domain name is available for registration and
does not violate any Network Solutions' or other registration
services' policies, or any law or regulation. You will promptly
reimburse Biggiweb for any fees Biggiweb pays to Network Solutions
or other registration services for registering and maintaining
the domain name(s). If any dispute or cause of action arises
out of or is related to your domain name used in connection
with the Services, then upon your request, Biggiweb will attempt
to register with Network Solutions or other registrar an alternative
domain name you chose. Upon registering your domain name,
you are bound by the terms of Network Solutions' then current
domain name policy and the policies of the national DNS registration
authorities. Biggiweb will not refund any fees you paid with
respect to the registration of a domain name you are unable
to use. If you received a "Free Domain Name Registration"
offer when you signed up for the Services, and you terminate
the Services within 1 year of the domain name registration,
you will immediately pay Biggiweb the full retail price for
the domain name registration in effect when you registered
the domain name, in addition to any other fees for early termination
described in this Agreement. 2.5 Security. You are solely
responsible for any security breaches affecting websites or
accounts under your control. You are responsible for or involved
in an attack on or unauthorized access into another server
or system from your website, Biggiweb will shut it down immediately
and cannot be held responsible in any way.. You will pay any
charges resulting from the cost to correct security breaches
affecting Biggiweb or any of its other customers or thirdparties.
2.6 Commercial Advertisements via E-Mail. You will not use
Biggiweb services, your account or server to send or facilitate
in any way the transmission of unsolicited commercial email.
Biggiweb will enforce substantial penalties, including charging
you for related network costs and terminating your account,
for violations.
3. Intellectual Property Rights
3.1 Your License Grant to Biggiweb. You grant to Biggiweb
a non-exclusive, worldwide, and royalty-free license for the
Initial Term and the Renewal Term, if applicable, to edit,
modify, adapt, translate, exhibit, publish, transmit, participate
in the transfer of, reproduce, create derivative works from,
distribute, perform, display, and otherwise use your content
as necessary for the purposes of rendering and operating the
Services to you under this Agreement. You expressly: (a) grant
to Biggiweb a license to cache materials distributed or made
available for distribution via the Services, including content
supplied by third parties, and (b) agree that this caching
is not an infringement of any of your intellectual property
rights or any third party's intellectual property rights.
3.2 Your Warranties And Representations to Biggiweb. You warrant,
represent, and covenant to Biggiweb that: (a) you are at least
18 years of age; (b) you possess the legal right and ability
to enter into this Agreement; (c) you will use the Services
only for lawful purposes and in accordance with this Agreement
and all applicable policies and guidelines; (d) you will be
financially responsible for the use of your account; (e) you
have acquired or will acquire all authorization(s) necessary
for hypertext links to third-party Web sites or other content;
(f) you have verified or will verify the accuracy of materials
distributed or made available for distribution via the Services,
including your content, descriptive claims, warranties, guarantees,
nature of business, and address where business is conducted,
and (g) your content does not and will not infringe or violate
any right of any third party (including any intellectual property
rights) or violate any applicable law, regulation or ordinance.
3.3 Biggiweb Materials And Intellectual Property. All materials,
including any computer software (in object code and source
code form), data or information that Biggiweb or its suppliers
or agents develop or provide under this Agreement, and any
know-how, methodologies, equipment, or processes Biggiweb
uses to provide our Services to you, including all copyrights,
trademarks, patents, trade secrets, and any other proprietary
rights inherent therein and appurtenant thereto will remain
Biggiweb's or its suppliers' sole and exclusive property.
Biggiweb may, in its sole discretion, change or remove any
and all services provided by Biggiweb.
4. Enforcement
4.1 Investigation of Violations. Biggiweb may investigate
any reported violation of this Agreement, or its policies
or any complaints and take any action that it deems appropriate
and reasonable under the circumstance to protect its systems,
facilities, customers or third parties. Biggiweb will not
access or review the contents of any e-mail or similar stored
electronic communications except as required or permitted
by applicable law or legal process. 4.2 Actions. Biggiweb
may restrict or remove from its servers any content that violates
this Agreement or related policies or guidelines, or is otherwise
objectionable or potentially infringing on any third party's
rights or that potentially violates any laws. If Biggiweb
becomes aware that you have possibly violated this Agreement,
any related policies or guidelines, third party rights or
laws, Biggiweb may immediately take corrective action, including:
(a) issuing warnings, (b) suspending or terminating the Services,
(c) restricting or prohibiting any and all uses of content
hosted on Biggiweb's systems, and (d) disabling or removing
any hypertext links to third-party Web sites, any of your
content distributed or made available for distribution via
the Services, or other content not supplied by Biggiweb that,
in Biggiweb's sole discretion, may violate or infringe any
law or third-party rights or that otherwise exposes or potentially
exposes Biggiweb to civil or criminal liability or public
ridicule. It is Biggiweb's policy to terminate repeat infringers.
These rights of action, however, do not obligate Biggiweb
to monitor or exert editorial control over the information
made available for distribution via the Services. If Biggiweb
takes corrective action because of a possible violation, Biggiweb
will not refund to you any fees you paid in advance of the
corrective action. 4.3 Disclosure Rights. To comply with applicable
laws and lawful governmental requests, to protect Biggiweb's
systems and customers, or to ensure the integrity and operation
of Biggiweb's business and systems, Biggiweb may access and
disclose any information it considers necessary or appropriate,
including, user profile information (i.e., name, e-mail address,
etc.), IP addressing and traffic information, usage history,
and content residing on Biggiweb's servers and systems. Biggiweb
may report any activity that it suspects violates any law
or regulation to appropriate law enforcement officials, regulators,
or other appropriate third parties. To the extent any inconsistency
exists between any terms of Biggiweb's On-line Privacy Statement
and Biggiweb's right to disclose under this section, Biggiweb's
right to disclose under this section will control.
5. Disclaimed Warranties Biggiweb exercises no control over,
and accepts no responsibility for, the content of the information
passing through Biggiweb's host computers, network hubs and
points of presence, or the Internet. ALL SERVICES PERFORMED
UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT
WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE
BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT
AS EXPRESSLY PROVIDED IN THIS AGREEMENT, Biggiweb DOES NOT
MAKE AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS
OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE
SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING
FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN
TRADE.
6. Limitation and Exclusion of Liability
6.1 Limitations. IN NO EVENT WILL Biggiweb OR ITS SUPPLIERS
HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION,
THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE
FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT
MEANS OR DEVICES. NEITHER Biggiweb NOR ITS SUPPLIERS WILL
HAVE LIABILITY WITH RESPECT TO Biggiweb'S OBLIGATIONS UNDER
THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY,
SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF Biggiweb
HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE
LIABILITY OF Biggiweb AND ITS SUPPLIERS TO YOU FOR ANY REASON
AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU
ACTUALLY PAID TO Biggiweb UNDER THIS AGREEMENT DURING THE
3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM
ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN
THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY,
NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER
TORTS. THE FEES FOR THE SERVICES SET BY Biggiweb UNDER THIS
AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS
ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE Biggiweb AND
ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND
CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION
6.1. 6.2 Interruption of Service. Biggiweb and its suppliers
are not liable for any temporary delay, outages or interruptions
of our Services. Further, Biggiweb is not liable for any delay
or failure to perform its obligations under this Agreement,
where the delay or failure results from any act of God or
other cause beyond its reasonable control (including, any
mechanical, electronic, communications or third-party supplier
failure).
7. Indemnification You release and hold harmless, and agree
to indemnify, Biggiweb and its affiliates and suppliers (and
their respective employees, directors and representatives)
against any and all claims, actions, proceedings, suits, liabilities,
damages, settlements, penalties, fines, costs or expenses
(including, reasonable attorneys' fees and other litigation
expenses) incurred by Biggiweb or its suppliers, arising out
of or relating to: (a) your violation or breach of any term,
condition, representation or warranty of this Agreement, or
any applicable policy or guideline; (b) your improper or illegal
use the Services; or (c) your violation, alleged violation,
or misappropriation of any intellectual property right (including
trademark, copyright, patent, trade secrets) or non-proprietary
right of a third party (including defamation, libel, violation
of privacy or publicity).
8. MISCELLANEOUS PROVISIONS
8.1 Entire Agreement. This Agreement, in conjunction with all policies and guidelines incorporated by reference, constitutes the entire agreement between you and Biggiweb with respect to the subject matter of the Agreement, and there are no representations, understandings or agreements that are not fully expressed in this Agreement and the related policies and guidelines. 8.2 No Fiduciary Relationship; No Third-Party Beneficiaries. Biggiweb is not the agent, fiduciary, trustee or other representative of you. Except for the rights of Biggiweb's suppliers under sections 6 and 7, nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person (other than the parties to this Agreement) any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of its representations, warranties, covenants, conditions and provisions are intended to be and are for the sole and exclusive benefit of the parties to this Agreement. 8.3 Amendments. Except as expressly provided in this Agreement, no amendment, change, waiver, or discharge of this Agreement is valid unless in writing and signed by the parties. 8.4 Identification. Biggiweb may, free of any obligation to pay compensation, use your name and identify you as a Biggiweb client, in advertising, publicity, or similar materials distributed or displayed to prospective clients. 8.5 Choice of Law and Forum. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF Arizona, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN Maricopa COUNTY, Arizona, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF THESE COURTS. 8.6 Compliance With Laws. You will comply with all applicable laws and regulations and will indemnify and save Biggiweb harmless from your failure to so comply. Biggiweb will not have to perform any obligations set forth in this Agreement if the performance would violate any present or future law, regulation or policy of any applicable government. 8.7 Non-Assignment. You may not assign this Agreement or any right or obligation under this Agreement, by operation of law or otherwise, without Biggiweb's prior written consent. Biggiweb may assign its rights and obligations under this Agreement, and may utilize affiliates and agents in performing its duties and exercising its rights, without your consent. This Agreement are binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. 8.8 No Waiver. Biggiweb's failure to enforce the strict performance of any provision of this Agreement does not constitute a waiver of Biggiweb's right to subsequently enforce the provision or any other provisions of this Agreement. 8.9 Severability. If any term or provision of this Agreement is deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement, if applicable, will remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, the term or provision will remain in full force and effect with respect to all other applications. 8.10 Headings. The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of the Agreement. 8.11 Survival. All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the Agreement.
|