THIS AGREEMENT FOR GNNHOSTING SERVICES (the "Agreement") is made and effective as of the date of acceptance, by and between you, ("Customer") and GNNHosting, Inc., a Delaware subsidiary of America Online, Inc., with offices at 8615 Westwood Center Drive, Vienna, Virginia 22182 ("GNNHosting").
WHEREAS, GNNHosting owns, distributes and provides various products and services that enable entities to publish and maintain World Wide Web pages, including the GNNPressTM software, the GNNServerTM software, and the GNNHostingTM services.
WHEREAS, Customer desires to utilize the GNNHosting services to develop Customer's presence on the World Wide Web.
NOW, THEREFORE, in consideration of the mutual promises set forth herein , the parties hereto agree as follows:
GNNHosting agrees to provide to Customer the GNNHosting services as set forth in Exhibit A ("GNNHosting Services").
2.1 In consideration of the performance of the GNNHosting Services, Customer shall pay GNNHosting the amounts set forth in Exhibit A ("GNNHosting Services") during the term of this Agreement monthly in advance.
3.1 Means of Performance. GNNHosting has the right to control and direct the means, manner and method by which the GNNHosting Services are performed. GNNHosting shall perform the GNNHosting Services in a professional and workmanlike manner.3.2 Support. GNNHosting shall provide a reasonable level of technicalsupport to Customer via telephone, e-mail or Web page for the term of this Agreement.
3.3 Other Work. GNNHosting has the right to perform services for and license products to others during the term of this Agreement.
4.1 Customer Liaison. Customer shall designate a contact person who shall act as a liaison between Customer and GNNHosting.4.2 Acceptance of GNNHosting Services. Customer shall have the rig ht to evaluate the GNNHosting Services as set forth in Exhibit A ("GNNHosting Services") for a period of thirty (30) days after completion of the GNNHosting Services. If Customer determines that any GNNHosting Services do not reasonabl y satisfy the standards provided herein, then Customer shall promptly notify GNNHosting of such deficiency. GNNHosting shall use commercially reasonable efforts to cure such deficiency. In the event GNNHosting is unable to cure such deficiency, Customer's sole and exclusive remedy shall be the refund of the amounts paid by Customer under this Agreement.
4.3 Fees and Expenses. Customer shall be responsible for payment of all costs, fees and expenses assessed by third parties in the course of being provided GNNHosting Services. Such costs include but are not limited to the fees required to register and maintain domain names.
5.1 Confidentiality. Both parties acknowledge that: (1) the other party is the owner of valuable trade secrets, and other proprietary information and license same from others, (2) in the performance of the GNNHosting Services, both parties shall receive or become aware of such information as well as other confidential and proprietary information concerning the other party's business affairs, finances, properties, methods of operation and other data (hereinafter collectively referred to as "Confidential Information"), and (3) unauthorized disclosure of any Confidential Information would irreparably damage the owner or supplier of such Confidential Information.5.2 Non-Disclosure. Both parties agree that, except as directed by t he other party or as provided in this paragraph, neither party will at any time during or after the term of this Agreement and for a period of three (3) years after any such termination disclose any Confidential Information to any person or entity, or permit any person or entity to examine and/or make copies of any reports or any documents prepared by the other party or that come into the party's possession or under the party's control that relate to Confidential Information, and that upon termination of this Agreement, both parties will turn over to the other party all documents, papers, and other matter in such party's possession or under such party's control that contain or relate to such Confidential Information. Both parties shall notify the other party, prior to disclosure of the information to the other party, that it considers the information to be confidential. Confidential Information shall not include information that (1) is already lawfully known to or independently developed by the receiving party; (2) is in the public domain through no fault of the receiving party; (3) is lawfully obtained from a third party without restrictions; or (4) is required to be disclosed by law, regulation or governmental order.
5.3 Injunctive Relief. Both parties acknowledge that disclosure of any Confidential Information by the other party will give rise to irreparable injury to the owner of such information, inadequately compensable in damages. Accordingly, either party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.
5.4 Proprietary Rights. Unless otherwise specified, all work perfor med hereunder, are the property of GNNHosting and all title and interest therein shall vest in GNNHosting; provided, however, that any content or materials supplied by Customer shall remain the property of Customer and its suppliers. To the extent that title to any such works may not, by operation of law, vest in GNNHosting, all rights, title and interest therein are hereby irrevocably assigned to GNNHosting. All such materials shall belong exclusively to GNNHosting, and GNNHosting shall have the right to obtain and to hold in its own name, copyrights, trademarks, registrations, or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Customer agrees to give GNNHosting and any person designated by GNNHosting such reasonable assistance, at GNNHosting's expense, as is required to perfect the rights defined in this paragraph.
6.1 Warranty. The terms and conditions for the use of the GNNPress and/or GNNServer software are governed by the terms of each product's end user license. The GNNHosting Services are provided on an "as is" basis. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE NAVISERVICE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.6.2 Indemnity. Each party will indemnify the other party from any a nd all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees resulting from the indemnifying party's material breach of any duty, representation or warranty under this Agreement, except those resulting from the gross negligence or knowing or willful misconduct of the other party. Such indemnity shall be conditional upon (1) prompt notification to the other party of any indemnifiable claim; (2) the indemnifying party's control of all settlement and other negotiations; and (3) the indemnifie d party's full cooperation with respect to such claim.
6.3 Limit of Liability. Neither party shall be liable to the other party for more than the aggregate amounts paid to GNNHosting under this Agreement.
6.4 Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS.
7.1 Term. This Agreement will become effective on the date indicated in the introductory paragraph of this Agreement, and will remain in effect for the term indicated in Exhibit A ("GNNHosting Services").7.2 Termination. In the event of any material breach of this Agreem ent by either party, the other party may terminate this Agreement, by giving ten (10) days prior written notice thereof; provided, however, that this Agreement shall not terminate at the end of said ten (10) days notice period if the party in breach has cured the breach of which it has been notified prior to the expiration of said ten (10) days.
7.3 Surviving Sections. The following paragraphs shall survive the termination of this Agreement: 5 ("Confidentiality and Proprietary Rights"), 6 ("Warranties/Indemnity"), and 8 ("General").
8.1 Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, and any such attempted assignment shall be void. This Agreement shall be binding upon the parties' respective successors and permitted assigns.8.2 Notices. Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below (1) on the delivery date if delivered personally to the party; (2) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, whether or not received, if sent by US mail, return receipt requested; or (4) on the delivery date if transmitted by confirmed facsimile.
If to GNNHosting:
GNNHosting, Inc.
8619 Westwood Center Drive
Vienna, VA 22182
Attention:If to Customer:
Name and address provided for account setup.
8.3 Governing Law. This Agreement shall be governed by and construe d in accordance with the laws of the Commonwealth of Virginia, except with regard to its conflict of law rules.
8.4 Modifications. No modifications, amendment, supplement to or waiver of this Agreement or any exhibit hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.8.5 Waiver. A failure of either party to exercise any right provide d for herein shall not be deemed to be a waiver of any right hereunder.
8.6 Complete Agreement. This Agreement and any exhibit attached her eto set forth the entire understanding of the parties as to the subject matter therein and may not be modified except in a writing executed by both parties.
8.7 Severability. In the event any one or more of the provisions of this Agreement or of any exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
8.8 Force Majeure. Neither party hereto shall be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure of transport, accident, war, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for fifteen (15) days, the other party may terminate this Agreement without penalty and without further notice.
8.9 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf or, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
8.10 Entire Agreement. This Agreement sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, condition or other provisions which is different from or in addition to the provisions of the Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.
IN WITNESS WHEREOF, the parties hereto, each acting unde r due and proper authority, have executed this Agreement as of the date of agreement.
Personal Service: $99 startup fee and $19.95/month
Includes:
- "Open, Edit, Save" privileges to your Web pages
- Password Protection
- Up to 20 mb of disk space and up to 500 Megabytes Transferred
- GNNHosting URL (e.g. http://home.navisoft.com/customername)
Term: 1 month from the effective date of this agreement.
The agreement will automatically renew in one (1) month terms unless the agreement has been terminated in accordance with Paragraph 7.2 ("Termination") or unless either party notifies the other party of its desire to terminate the agreement at least ten (10) days in advance of the end of the initial term or ten (10) days in advance of the end of any renewal term.
Domain Service: $199 startup fee and $99/month
Includes:
- Domain Name (Registration Fees not included)
- Up to 50 mb of disk space and up to 1500 Megabytes Transferred.
Term: 1 month from the effective date of this agreement
The agreement will automatically renew in one (1) month terms unless the agreement has been terminated in accordance with Paragraph 7.2 ("Termination") or unless either party notifies the other party of its desire to terminate the agreement at least ten(10) days in advance of the end of the initial term or ten (10) days in advance of the end of any renewal term.
Commercial Service: $249 startup fee and $199/month
Includes:
- Domain Name (Registration Fees not included)
- Up to 100 mb of disk space and up to 3000 Megabytes Transferred
- Ability to set R/W page permissions, create tables and forms, and collect and query data for reports
Term: 1 month from the effective date of this agreement
The agreement will automatically renew in one (1) month terms unless the agreement has been terminated in accordance with Paragraph 7.2 ("Termination") or unless either party notifies the other party of its desire to terminate the agreement at least ten (10) days in advance of the end of the initial term or ten (10) days in advance of the end of any renewal term.
Dedicated Service: $499 startup fee and $1,499 per month in 6 month blocks
Includes:
- Domain Name (Registration Fees not included)
- Dedicated server (hardware and software) and maintenance resources
- Secure financial transactions using Terisa security technology (available late 1995)
- Ability to create scripts, modules and Web applications
- 1 gb of storage space and up to 15,000 Megbytes Transferred.
Term: 6 months from the effective date of this agreement
The agreement will automatically renew in one (1) month terms unless the agreement has been terminated in accordance with Paragraph 7.2 ("Termination") or unless either party notifies the other party of its desire to terminate the agreement at least thirty (30) days in advance of the end of the initial term or ten (10) days in advance of the end of any renewal term.
Content Provider Program: $149 startup fee and $199/Month
Includes:
- Domain Name (Registration Fees not included)
- Up to 100 mb of disk space and up to 3000 Megabytes Transferred
- Ability to set R/W page permissions, create tables and forms, and collect and query data for reports
- Templates for easy design and creation of individual web pages
- (1) GNNPress User Guides
- (1) GNNServer User Guides
- Registration in GNNHosting Content Provider Directory
- Showcase/Spotlight of Content Providers
- (1) E-Mail alias (e.g. someone@contentprovider.com)
- Finders Fee (one free month service) for additional GNNHosting Customers
Term: 1 month from the effective date of this agreement
The agreement will automatically renew in one (1) month terms unless the agreement has been terminated in accordance with Paragraph 7.2 ("Termination") or unless either party notifies the other party of its desire to terminate the agreement at least ten (10) days in advance of the end of the initial term or ten (10) days in advance of the end of any renewal term.
All additional charges incurred shall be billed by GNNHosting to Customer in accordance with Customer's normal billing mechanism.