THIS SERVICES AGREEMENT (“Agreement”) is entered into between High Kick Creations, LLC. (“The Karate Coder”), with its principal place of business located at 9001 Sawgrass Glen, Maple Grove, MN 55311 and you (“User”) and shall be effective as long as User utilizes The Karate Coder’s services and/or owes for services provided.
WHEREAS, The Karate Coder is engaged in the business of providing web design, development, marketing, hosting, email, and related services;
WHEREAS, User desires to retain The Karate Coder to perform the services.
NOW, THEREFORE, The Karate Coder and User agree as follows:
- Scope of Services
- The Karate Coder will provide the services as set forth in the scope of the agreed to proposal. Services will be provided according to the terms described in Exhibit B (“Service Level Agreement”). User agrees to comply with Exhibit C, the Acceptable Use Policy.
- Price and Payment
- User will pay The Karate Coder for Services according to the terms set forth in the agreed to proposal. User will pay all fees for goods or services as agreed and invoiced. The Karate Coder may change the prices charged for services including, without limitation, hosting, marketing, domain renewals or registration, and email accounts upon forty-five (45) days notice to User, but such increases shall not exceed ten percent (10%) of the rate currently being charged at that time. Fixed price proposals for web based projects will be honored unless there exist significant technology, scope or functionality changes from the agreed to proposal. Modifying elements, including, without limitation, designs, templates, infographics, technologies, content management systems or web pages after verbal or written buyoff by User may incur additional hourly charges. Any refunds are at the sole discretion of The Karate Coder.
- Term and Termination
- Term will commence upon the start of services and will extend for a period of 30 days and will automatically renew from month to month thereafter, unless earlier terminated as provided herein or if a longer term agreement has been executed in the proposal. User may terminate this Agreement without cause upon at least thirty (30) days written notice to The Karate Coder. The Karate Coder may terminate this Agreement without cause upon at least 30 days written notice to User. Either party may terminate this agreement upon written notice for material breach, provided, however, that the terminating party has given the other party at least fourteen (14) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party’s right to exercise any other remedies for breach.
- Customer Service
- The Karate Coder will provide to User reasonable amounts of billable consultation via telephone and/or electronic mail in the use of the system, but may not be able to assist with any services that are not maintained or controlled by The Karate Coder.
- User’s Warranties and Obligations
- User is responsible for providing all equipment and/or software necessary to access the hardware and systems provided by The Karate Coder. User agrees to adhere to The Karate Coder’s Acceptable Use Policy, a copy of which is attached hereto and marked as “Exhibit C” and is available online at https://www.thekaratecoder.com/services-agreement/. The Acceptable Use Policy may be modified from time to time in The Karate Coder’s sole discretion. User’s continued use of the Services after the effective date of such modified Acceptable Use Policy will constitute User’s acceptance of the modified terms. Failure by User to adhere to the Acceptable Use Policy, or any modifications thereto will constitute a material breach of this agreement.
- User hereby warrants to The Karate Coder, and agrees that during the term of this Agreement it will ensure that (a) User is the owner or valid licensee of all data and/or content uploaded in conjunction with the Services (the “Content”), and that User has secured all necessary licenses, consents, permissions, waivers and releases for the use of content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by The Karate Coder to pay any fees, residuals, guild payments or other compensation of any kind to any person; (b) User’s use, publication and display of the Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated; (c) User will comply with all applicable laws, rules and regulations regarding the Content and will use the services only for lawful purposes; (d) User has used its best efforts to ensure that the Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other type of malicious code.
- User will cooperate fully with The Karate Coder in connection with The Karate Coder’s performance of the Services. User will immediately notify The Karate Coder of any change in User’s mailing address, telephone, e-mail or other contact information.
- Ownership of Intellectual Property
- User hereby grants to The Karate Coder a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary in the performance of Services: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Content; and (b) make archival or back-up copies of the Content. Except for the rights expressly granted herein, The Karate Coder does not acquire any right, title or interest in or to the Content, all of which will remain solely with User.
- Any feedback, data, answers, questions, comments, suggestions, ideas or the like that User sends to The Karate Coder relating to the Services will be treated as being non-confidential and non-proprietary. The Karate Coder may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any lawful purpose.
- The Karate Coder’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of The Karate Coder. User will not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of The Karate Coder. The Karate Coder will maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by The Karate Coder to User. The Karate Coder may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.
- The Karate Coder hereby grants to User a non-exclusive, non-transferable, royalty-free license, for the term of this Agreement, to use the provided technology solely for the purpose of accessing and using the Services. User may not use the provided technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from The Karate Coder to User any right, title or interest in and to the provided technology, and all right, title and interest thereto will remain solely with The Karate Coder. User will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the provided technology.
- Warranty and Disclaimer
- The Karate Coder warrants the Services will be performed in a workmanlike manner, and in conformity with generally prevailing industry standards. User must report any material deficiencies in the Services to The Karate Coder in writing within ninety (90) days of User’s discovery of the deficiency. User’s exclusive remedy for the breach of the above warranty will be the re-performance of the defective services within a commercially reasonable time, or any service credit set forth in any attachments to this agreement. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. The Karate Coder EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES.
- Limitation of Liability
- Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the Services, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. User is responsible for verifying and maintaining accurate tax and shipping data if applicable and agrees to hold The Karate Coder harmless from errors in tax and shipping even if The Karate Coder assists in setting up tax and shipping calculations.
- Indemnification of The Karate Coder
- User will indemnify and hold The Karate Coder harmless against any claims incurred out of or in conjunction with breach of this Agreement, as well as all reasonable costs, expenses and attorneys’ fees incurred therein. The Karate Coder’s total liability under this Agreement with respect to the Services, regardless of cause or theory of recovery, will not exceed the total amount of hosting fees paid by User to The Karate Coder during the six (6) month period prior to the date the claim arises.
- Confidential Information
- All information relating to User that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by The Karate Coder and will not be disclosed or used by The Karate Coder except to the extent that such disclosure or use is reasonably necessary to the performance of the Services.
- All information relating to The Karate Coder that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by User and will not be disclosed or used by User except to the extent that such disclosure or use is reasonably necessary to the performance of User’s duties and obligations under this Agreement.
- These obligations of confidentiality will extend for a period of 1 year after the termination of this agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
- Relation of Parties
- The performance by The Karate Coder of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between The Karate Coder and User, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
- Employee Solicitation/Hiring
- During the period of this Agreement and for twelve (12) months thereafter, User will not directly or indirectly solicit or offer employment to or hire any employee, former employee, subcontractor or former subcontractor of the other. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party within six (6) months immediately prior to the alleged violation.
- Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
- Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Minnesota. The arbitration will be held in Minnesota. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
- Attorneys’ Fees
- Neither party will be entitled to the other’s attorneys’ fees and costs.
- If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
- Force Majeure
- Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.
- No Waiver
- The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
- Entire Agreement
- This Agreement together with any attachments referred to herein constitute the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
User will automatically execute this Agreement by use of the Services and/or signing the The Karate Coder proposal.
EXHIBIT B: SERVICE LEVEL AGREEMENT
This Service Level Agreement (“Agreement”) sets forth the details regarding the level of service and technical support that apply when your account is in good financial standing.
- Hosting Service Level Agreement
- For purposes of this Agreement, a Unit of Downtime is one period of at least 4 hours during which access to your website is unavailable because of problems with hardware or system software. Downtime does not include (i) problems caused by factors outside of our reasonable control, (ii) problems resulting from any actions or inactions by you or any third party, (iii) problems resulting from your equipment and/or third party equipment not within our sole control, or (iv) network unavailability during scheduled maintenance of our network and/or web servers.
- In any calendar month, we guarantee that Downtime will not exceed 8 hours Units of Downtime excluding, however, regularly scheduled maintenance. Most regularly scheduled maintenance will be performed during the hours of 12:00 Midnight and 4:00 AM CST. We work to ensure the functioning of all web servers through continuous monitoring by our staff.
- If Downtime exceeds 8 hours Units of Downtime in any calendar month, we will, upon your written request, credit your account (a “Downtime Credit”) in an amount equal to the pro-rata price for one (1) day of service, for each instance of Downtime as that term is defined herein.
- To receive Downtime Credit, you must request such credit by sending an email to firstname.lastname@example.org within seven (7) days after the occurrence of Downtime. The aggregate maximum number of Downtime Credits to be issued for any and all instances of Downtime occurring in a single calendar month will not exceed seven (7). Downtime Credits will be applied upon issue of the first invoice following the request for Downtime Credit, unless the Downtime occurs in your final month of service. In such case, a refund for the dollar value of the Downtime Credit will be mailed to you within thirty (30) days of the expiration of your service agreement.
- Other Services
- Other services including, but not limited to, graphic design, web development, internet marketing, digital advertising and domain renewals will be performed in a workmanlike manner, and in conformity with generally prevailing industry standards. User must report any material deficiencies in the Services to The Karate Coder in writing within ninety (90) days of User’s discovery of the deficiency. User’s exclusive remedy for a breach will be the re-performance of the defective services within a commercially reasonable time, or any service credit set forth in any attachments to this agreement. The Karate Coder is not responsible for (i) problems caused by factors outside of our reasonable control, (ii) problems resulting from any actions or inactions by you or any third party, (iii) problems resulting from User’s equipment and software and/or third party equipment and software not within our sole control, or issues resulting from a divergence in project scope as written in the agreed to proposal.
- Technical Support
- A member of our technical support help desk staff will be available to assist you with problems and questions regarding the hosting and other services. We will supply telephone and/or email support to you regarding the hosting services between 8:00 AM and 5:00 PM CST. The Karate Coder also will provide an after-hours support number for after-hours emergencies on our website.
- You may contact our technical support help desk via email at email@example.com, or by telephone at 320-266-4824. We may, from time to time, develop additional methods for you to contact the help desk, and will make information regarding such methods available at our website.
EXHIBIT C: ACCEPTABLE USE POLICY
This Acceptable Use Policy sets forth guidelines relating to the types of content that you may transmit to or from web and email servers under your agreement with The Karate Coder for services (the “Services”). The Karate Coder, Inc. may remove any materials that, in its sole discretion, may be illegal, may subject it to liability, or which may violate this Acceptable Use Policy. The Karate Coder will cooperate with legal authorities in the investigation of any suspected or alleged crime or civil wrong arising from any use of the Services. Your violation of this Acceptable Use Policy may result in the suspension or termination of either your access to the Services and/or your account or other actions as detailed in the Services Agreement. The Karate Coder reserves the right, in our sole discretion, to update this policy from time to time.
- Acceptable Use
- The following constitute violations of this Acceptable Use Policy:
- Using the Services to transmit or post any material that contains or contains links to nudity, pornography, adult content, sex, or extreme violence.
- Using the Services to transmit or post any material that, intentionally or unintentionally, violates any applicable local, state, national or international law, or any rules or regulations promulgated thereunder.
- Using the Services to harm, or attempt to harm, minors in any way.
- Using the Services to transmit or post any material that harasses, threatens or encourages bodily harm or destruction of property.
- Using the Services to make fraudulent misrepresentations or offers including, but not limited to, offers relating to “pyramid schemes” and “Ponzi schemes.”
- Using the Services to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of The Karate Coder, Inc. or another entity’s computer software or hardware, electronic communications system or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
- Using the Services to transmit or post any material that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to, the unauthorized copying and/or distribution of copyrighted material, the digitization and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorized transmittal of copyrighted software.
- Using the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
- Reselling the Services without the prior written authorization of The Karate Coder.
- Using the Services for any activity that adversely affects the ability of other people or systems to use the Services or the Internet. This includes but is not limited to “denial of service” (DoS) attacks against another network The Karate Coder or individual user. Interference with or disruption of other network users, network services or network equipment is prohibited.
- Reporting of Violations of This Acceptable Use Policy
- The Karate Coder requests that anyone who believes that there has been a violation of this Acceptable Use Policy to immediately send an email detailing such violation to firstname.lastname@example.org.