NuMedia Marketing, Inc.
HOSTING & MANAGED WEBSITE MAINTENANCE SERVICES SUBSCRIBER AGREEMENT
Initial Commitment Term: 1 year commencing from the first subscription payment date and ending on the last day of the last month.
Scope of Included Services (Services): As per subscription order.
Monthly Base Rate: As detailed in subscription order. Rates will change at the beginning of the month following the addition of any components within the subscription order.
- Engagement. Customer hereby engages NuMedia Marketing, Inc. (“NuMedia”) for the initial term set forth above, to provide services in support of Customer’s computer, electronic and information technology systems (“Services”) located at the Service Address identified above. Upon expiration of the initial term, and upon expiration of each successive term, this Agreement shall be automatically renewed and extended for an additional 12 months term unless one of the parties hereto serves written notice upon the other of intent not to renew the Agreement at least thirty days prior to the renewal date.
- Scope of Included Services. NuMedia will perform Services included within the Scope of Included Services, as required, during the term of this Agreement. NuMedia, in NuMedia’s sole discretion, will decide whether to perform Services at the Service Address or off site. Customer agrees not to make unreasonable requests for services.
- Pricing; Additional Services. The Monthly Base Rate set forth above covers the cost of Services within the Scope of Included Services. Charges for additional services, if any, requested or required by Customer will be determined by agreement of the parties or, in the absence of agreement, will be charged at NuMedia’s standard rates in effect at the time service is provided. The Base Rate does not include the cost of any hardware, software, equipment, or supplies or any out-of-pocket expenses incurred by NuMedia unless specifically identified as included in the Scope of Included Services.
- Payment; Suspension or Termination of Services. Payment of the Monthly Base Rate is due on the first day of each month during the term of this Agreement and shall be considered delinquent if unpaid within thirty (30) days of the due date. Customer shall pay invoices for any additional amounts due to NuMedia within thirty (30) days after receipt. NuMedia shall have the right to suspend the performance of Services, or to terminate this Agreement, if Customer fails to make payment within the time permitted for doing so under this Agreement. Customer shall have the right to terminate this Agreement in the event that NuMedia fails to meet the Required Performance Standard established by the Service Guarantee described in Exhibit B; provided, however, that Customer shall not terminate this Agreement pursuant to this provision without first giving NuMedia written notice of deficiencies in performance and a reasonable opportunity (not less than 30 days) to meet and maintain the Required Performance standard.
- Price Adjustments. NuMedia shall have the right to increase the Monthly Base Rate from the current rate as documented by the original subscription order at NuMedia’s sole discretion with 30-day notice. in the event of equipment purchases, substantial changes in the demand for Services initiated by Customer, material increases in costs to NuMedia, or if Customer’s demand for Services during any twelve-month period during the term of this Agreement should exceed the Adjustment Threshold. When an adjustment occurs, an addendum detailing the change, will be signed by both parties and attached to this contract.
- Use of Software. Authorization to use any software provided by NuMedia to the Customer provides a personal, non-exclusive, limited, non-transferable and temporary license. All rights are reserved. The Customer may not re-publish, transmit, or distribute the software, or make any unauthorized use of NuMedia materials. Modification of such materials or the use of such materials for any purpose not authorized by NuMedia is prohibited.
- Termination of Hosting Services:You acknowledge and agree that upon expiration or termination of your Hosting Services, you must discontinue use of the Hosting Services and relinquish use of the IP addresses and server names assigned to you in connection with Hosting Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Hosting Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, we will delete all such content and we will not be able to provide a copy of such content.
- Ownership of Work Product. Any (a) work of authorship fixed in any tangible medium of expression that is the subject matter of a copyright or potential application for registration therefore (including, but not limited to, object code and source code), (b) unpatented inventions, including but not limited to, physical parts or components, processes, techniques, programs or methods, (c) non-trademarked or non-service-marked distinctive symbols, pictures or words, (d) trade secrets, or (e) any other copyrightable, patentable and/or trademarkable intellectual property rights, whatsoever, associated with any ideas, symbols, marks, phrases, writings, drawings, inventions, machines, designs, concepts, techniques, methods, know-how, processes or works of authorship developed or created by: (i) NuMedia and/or NuMedia Personnel; and/or (ii) through collaborative efforts of NuMedia (including NuMedia Personnel) and Customer and/or any director, officer, shareholder, member, manager, employee, agent, independent contractor or representative of Customer (“Customer Personnel”) during the term of this Agreement (collectively, the “Work Product”) shall belong to NuMedia; provided that Customer shall retain a perpetual, non-exclusive, royalty-free license to use the Work Product in its day to day business operations so long as Customer does not disclose, sell or assign, in any capacity, its rights in said Work Product, to any third party (including NuMedia Personnel and Customer Personnel) without the express, written consent of NuMedia, which consent may be withheld. Upon request of NuMedia, Customer shall, if necessary, take such actions, and shall cause Customer Personnel to take such actions, including execution and delivery of any and all instruments of conveyance, necessary to grant title in and to the Work Product to and in the name of NuMedia.
- Non-Diversion. Customer agrees that during the term of this Agreement and for a period of one year following the termination of this Agreement, Customer will not recruit or hire any employee, agent, representative or subcontractor of the NuMedia (“NuMedia Personnel”), who provide services to the Customer, nor will Customer directly or indirectly contact or communicate with NuMedia Personnel for the purpose of soliciting or inducing such NuMedia Personnel (a) to accept employment with, or perform work for any person, firm, or entity other than NuMedia; or (b) to provide services to Customer or any other person, firm or entity except as an employee or representative of the NuMedia. Customer agrees that, in the event of a breach or threatened breach of this provision, in addition to any remedies at law, NuMedia, without posting any bond, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available.
- Disclaimer of Warranties. Services furnished under this Agreement are provided “as is” and, unless otherwise expressly stated in this instrument, without representations or warranties of any kind, either express or implied. To the fullest extent permitted by law, NuMedia disclaims all warranties, express, implied or statutory, including, but not limited to, implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose. NuMedia does not warrant that use of software or products furnished by NuMedia will be uninterrupted, error-free, or secure, that defects will be corrected, or that products or the server(s) to which access is provided are free of viruses or other harmful components.
- Limitation of Liability. In no event shall NuMedia be liable to the Customer or any other party for any special, exemplary, incidental or consequential damages, including but not limited to lost profits, whether arising out of contract, tort, strict liability or otherwise. If NuMedia breaches this Agreement and is in default after the thirty (30) day period in paragraph four (4), Customer’s sole remedy shall be the amount of the Services Agreement, paid by the Customer to the NuMedia for the prior thirty (30) days.
- Actions. No action, regardless of form (including in contract, tort or otherwise), arising in connection with the performance of this Agreement may be brought by either party more than one (1) year after the date of the occurrence on which the action is based.
- Good Faith. The parties hereto expressly assume an obligation to act in good faith toward one another in the performance of their obligations under this Agreement.
- Miscellaneous. This instrument, with originating subscription order(s), contains the entire agreement of the parties and supersedes any previous agreement on the same subject matter between them. No amendments or variations of the terms and conditions of this agreement shall be valid unless the same are in writing and signed by all parties hereto. NuMedia is an independent contractor and nothing herein shall be construed as inconsistent with that relationship or status. If any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions hereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had not been contained herein. The headings contained herein are for convenience of reference only, and are not to be used in interpreting this agreement. This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one document.
- Venue/Governing Law. This Agreement and all documents delivered or to be delivered in accordance with this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Indiana. In the event litigation, the Parties agree to submit to the exclusive jurisdiction of, and venue in, the state courts in in Hendricks County in the State of Indiana. The parties waive any right to a jury trial for a dispute involving the parties.
- Notices. All notices and other communications must be in writing and shall be deemed given if delivered personally or by overnight courier, or transmitted by facsimile with confirmed receipt, email with a confirmed receipt, to the persons at the addresses set forth below (or such other address for a Party as shall be specified by like notice). Notice given personally or by express courier service, or transmitted by facsimile, shall be deemed delivered when received by the addressee. For purposes of notice, the addresses of the Parties shall be:
NuMedia: NuMedia Marketing Inc. Customer: As detailed in the
Attn: Scott Shearin subscription order.
1300 East Main Street, Suite 100
Danville, IN 46122
- Waiver. No waiver of any provision of this Agreement, or any right or remedy arising under any provision of this Agreement, shall be effective unless such waiver is in writing and executed by an authorized representative of the waiving party. No waiver with respect to a specific circumstance shall be deemed a waiver as to any other circumstance.
- Attorney’s Fees. If NuMedia brings a claim or lawsuit, or defends itself against the Customer bringing a claim or lawsuit to interpret or enforce any of the terms of this Agreement, and is successful, the NuMedia shall, in addition to all other damages, be entitled to reasonable attorneys’ fees and costs, costs of witnesses, and costs of investigation from the Customer
- Force Majeure. Notwithstanding anything in this Agreement to the contrary, performance by either Party under this Agreement shall be suspended during any period in which performance is impossible due to events or circumstances beyond such Party’s control, such as, but not limited to loss of power, phone or internet service disruption, acts of God, acts of war, hackers, virus, or equipment failure or loss; provided, that, such events or circumstances were not occasioned by or based upon the fault or negligence of such Party.
- Indemnification. Customer shall indemnify, defend and hold harmless the NuMedia and its shareholders, employees, affiliates, successors and assigns from and against any and all damages, liabilities, losses, costs or expenses (including reasonable attorneys’ fees and fees or costs incurred in investigation) (collectively, “Losses”) incurred or suffered by the NuMedia which arise out of, result from or relate to any breach by the Customer’s failure to perform, any representation, warranty, covenant, agreement, condition or obligation contained in this Agreement.