WEBSITE CREATION, HOSTING AND MAINTENANCE AGREEMENT
BY HIRING GIGAPIXEL CREATIVE, INC.
(BABYGIGS DIVISION), A NEW YORK CORPORATION ("BABYGIGS" AND/OR "WE/OUR/US") TO
PROVIDE WEBSITE CREATION, HOSTING AND MAINTENANCE SERVICES FOR YOU ("YOU" OR
"CLIENT"), YOU AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT THIS AGREEMENT WILL BECOME EFFECTIVE
(THE "EFFECTIVE DATE") ON THE DATE THAT YOU PROVIDE THE REQUIRED INFORMATION AS DETAILED BELOW.
READ THIS AGREEMENT CAREFULLY. OUR WEBSITE PROVIDES A BRIEF SUMMARY OT
THE SERVICES WE PROVIDE WHICH IS QUALIFIED BY THE TERMS AND CONDITIONS OF THIS
AGREEMENT
1 The Basic Services.
(a) The Basic Services. Client hereby hires BabyGigs as an independent
contractor to create a website for Client (the "Site"), host the Site on the Internet, maintain the Site, provide
live technical support, provide two hours of business consulting services each
year and, if Client does not have
a registered domain name, register its domain name. The foregoing, as detailed in the terms and conditions of
this Agreement, are collectively referred to as the "Basic Services." We
shall provide the Basic Services for the Basic Monthly Fee (as defined
below).
(b) The Additional Services. In addition to the Basic Services, BabyGigs offers certain additional
services the "Additional Services")
at additional cost. An addendum to
this Agreement (the "Addendum") sets
forth a noncomprehensive list of Additional Services and, in many cases, the
fee for each such service (the "Additional
Service Fee.") Except
for updates of your Site beyond one per year, after you pay for 12 months of
any Additional Service, that service is free as long as this Agreement is
continuously in effect. BabyGigs is
not responsible for providing any services to Client other than the Basic
Services and any Additional Services we agree to provide at the request of
Client.
2. Creation of and Certain Features of the Site
(a) Creation
of the Site. The
Site will be a maximum of six pages. It will provide such information about you and/or your company as you
desire, including for example, an overview of the products and/or services you
provide, your location and hours of operation. We will offer you a choice among the pre-designed website templates
we have created. You will provide
the contents of the Site, namely, text, images, up to five music files and your
company logo. You will have
options regarding such matters as color and font sizes. We will provide the programming,
layout, and site organization. You
understand that the website template that you choose for your Site may be
selected by other clients of ours which may result in their websites having a
look similar to that of the Site.
(b) Browser
Standards. The
Site will be built to be accessible and consistently viewed across all
platforms. As a result of
different operating systems and different web browsers and versions (in
addition to Internet Explorer) there are differences in the way a website
displays on different computers.
(c) Completion
Time. Site development is estimated to take approximately five to seven
business days after you have provided all content and we receive authorization
of billing of your credit card.
(d) Organic
Search Engine Optimization. The Site will have keyword choices
and placements, metatagging, and other aspects to increase visitor traffic.
(e) Site
Ownership. The Site shall at all times be owned by BabyGigs. Upon the termination of this Agreement
you will have no rights whatsoever with respect to the Site, including the
rights to use, modify or copy the Site.
3. Hosting
of the Site. We will store your Site on our server so that the Site is accessible to
third parties via the Internet. We
will provide you with (i) online access to various usage statistics related to
the traffic on the Site; (ii) 250 MB of storage for the Site; and (iii) up to 10 e-mail
accounts. We reserve the right to
delete or quarantine any files or e-mails found infected with a virus. You
shall limit your e-mail usage so as not to put undue load on the mail server or
compromise the performance of other e-mail accounts or services hosted on the
server.
4. Maintenance
of the Site. You will receive as part of the Basic Services live technical support
for e-mail, hosting, and general website issues. Live support will be available during our normal business
hours (Monday through Friday 10 a.m. to 6:30 p.m. EST) E-mail support will be given within 24
hours if within our normal business hours; otherwise, it will be given no later
than the end of the next business day. We will do one update (content and photos) of the site each year,
without charge. All of the changes in a single update must be provided to us at
the same time. If you provide
changes and decide at some later date or time (even if shortly thereafter) to
make additional changes, you are requesting two updates. An update does not
involve a change of the template or the color you have chosen. In order to effect a change of template
and/or color you will have to initiate a new agreement with a one year minimum
term.
5. Term. The initial term of this
Agreement (the "Initial Term") shall
be for a period of one year starting on the Effective Date; provided that
BabyGigs shall have the right to terminate this Agreement prior thereto upon 30
days written notice to Client and
immediately in the event of a breach by Client. After the Initial Term, this Agreement shall continue until
either party gives 30 days written notice of termination to the other or
immediately upon written notice of termination to the other in the event of a
breach by the other.
6. Payments.
(a) Basic
Monthly Fee. The
Basic Monthly Fee for the Basic Services shall be $88 per month with a one year
contract agreement. The fee is
$188 for a site with a content management system built in. At all times during the Term, Client
shall leave a valid credit card on file with BabyGigs. Starting on the Effective Date and on
the same day (or closest business day) of each month thereafter during the
Term we will charge your credit
card the Basic Fee and the Additional Service Fees for any Additional Services
you have ordered for the upcoming month. With respect to the first such payment, if we are unable to receive
payment with the credit card information on file by the end of the next
business day after you provided us with your information, this Agreement shall
become null and void. For purposes of this Agreement, all references to a month or year refer
to the month or year starting on the Effective Date and on each successive
monthly or yearly anniversary of the Effective Date. For example, if the Effective Date is October 8, 2005, the
next month would commence on November 8, 2005 and the next year would commence
on October 8, 2006, with appropriate adjustments for months of different
lengths. There are no refunds.
(b) Early
Termination Fee. This Agreement has a one year minimum term, starting on the Effective
Date, and continuing thereafter until terminated in accordance with Section
5. We have, as an accommodation to
you, allowed you to pay in twelve equal monthly installments. Because we are required to devote more
time and effort to the Site in the early part of the Term, any termination by
you prior to one year shall be subject to an early termination fee (the "Early Termination Fee") of the sum
of (i) the total of the Basic Fees
that are unpaid for the remainder of the Initial Term and (ii )for each Additional
Service that you are receiving at the time of termination, the product of (A) the number of months
remaining until you have paid for that Additional Service for one year and (B)
the Additional Service Fee for that Additional Service . By way of example, if you were to
terminate during the ninth month of the Initial Term and in the fourth month of
the Initial Term you asked us to build a chat room for your Site, there would
be three months of Basic Fees remaining unpaid and eight months of Additional Service Fees for the chat
room remaining unpaid so that the Early Termination Fee would be $264 +
$400 = $664, calculated by
multiplying $88 (the Basic Fee) by 3 (the number of months in the Initial Terms
for which the Basic Fee remains unpaid) and adding to it the product of $50
(the Additional Service Fee for the chat room) and (12-4). The Early Termination Fee will also be
assessed if BabyGigs terminates this Agreement during the Initial Term in the
event of a breach by Client, without prejudice to BabyGigs' right to pursue all
other remedies available to it.
(c) Late
Payment. If authorization of payment on your credit
card is delayed for any payment (including, if applicable, Additional Service Fees and the Early
Termination Fee) more than 10 days, penalties will be assessed as follows: (1)
if payment is authorized between
11 and 30 days after authorization was first sought, a $15 charge will be
assessed for each day from the due date until the earlier of payment or the 30th day after payment was first sought; and (2) for any amounts that remain unpaid
more than 30 days after payment was first sought, a 5% penalty (or such lesser
percentage as is allowed by law) will be added for each month of delinquency. You agree to pay all costs of
collection incurred by us, including reasonable attorneys' fees. Our right to collect and/or actual
collection of penalties is without prejudice to our right to terminate this
Agreement on account of your breach of agreement in paying late or any other
remedies available to us.
7. Client
Obligations and Restrictions.
(a) Violations
of Laws; Infringement of Rights. Client shall not provide any content for the
Site unless such content is either owned by Client or Client has all necessary
licenses or other authorizations from the rightful owner for its use. Client shall not provide any content
for the Site or use the Site in a way that will violate any applicable laws or
regulations or infringe on any
rights of any third parties, including proprietary, contract, moral, and
privacy rights. The foregoing
prohibitions include, but are not limited to:
(i) Sending unsolicited mail messages, including
the sending of "junk mail" or other advertising material to
individuals who did not specifically request such material, who were not
previous customers of Client or with whom Client does not have an existing
business relationship with
("E-mail spam");
(ii) Engaging in harassing
behavior, whether through language, frequency or size of e-mail messages;
(iii) Using without authorization or forging e-mail header
information;
(iv) Soliciting
mail for any other e-mail address other than that of the Client's account; and/or
(v) Creating or forwarding "chain
letters" or other "pyramid schemes" of any type.
Client agrees that Client is solely responsible for
complying with any laws, taxes, and tariffs applicable in any way to the Site
or to any other Services contemplated by this Agreement.
(b) Indemnity. Client shall indemnify BabyGigs
and hold it and its affiliates, officers, employees, consultants,
subcontractors, agents and representatives (collectively the "BabyGigs Group" harmless from any
claim, suit, penalty, tax, fine, penalty, liabilities or other losses arising
from Client's breach of any of the foregoing prohibitions or its exercise of
Internet commerce.
(c) Notice
of Claims. If
Client receives notice of a claim or violation regarding the Site, Client shall
promptly provide BabyGigs with written notice of such claim.
8. No Warranties. Client understands that there are
circumstances that can curtail availability of the Site at times, including but
not limited to, interruption or failure of electricity, telecommunication or
digital transmission links and Internet slow-downs or failures. We do not warrant that the operation of
the Site will be uninterrupted or error-free or that e-mail will always be
available to you or your customers. While we make every effort to ensure the
security and integrity of the data stored on the servers, by using firewalls
and antivirus scanning tools, we cannot warrant that it will remain secure or
uncorrupted. In no event
will we or any other member of the BabyGigs Group be liable to you or any other
party for any damages, including any lost profits, or other incidental,
consequential or special damages arising out of the operation of or inability
to operate the Site. We make no guarantee of placement
or even listing in any search engine. There no other warranties, express or
implied, including implied warranties of merchantability and fitness for a
particular purpose.
9. Limitation
of Liability. Neither BabyGigs, nor any other member of the BabyGigs Group shall be
liable for unauthorized access to, or alteration, theft or destruction of, the
Site or Client's data files, programs or information through accident,
fraudulent or unauthorized means or devices. None of them shall be liable for consequential, exemplary,
special, incidental, or punitive damages. The liability of the BabyGigs Group to Client for any
reason and upon any cause of action shall collectively be limited to the amount
actually paid to BabyGigs by Client under this Agreement. This limitation
applies to all causes of action in the aggregate.
10. Miscellaneous.
(a) Consultants. We reserve the right to
utilize consultants and subcontractors to provide any one or more of the
services pursuant to this Agreement.
(b) Notices. Except as otherwise
provided herein, all notices, approvals, authorizations and other
communications required to be given in writing under the terms of this
Agreement shall be sent by e-mail to BabyGigs as follows: yao@gigapixelcreative.com or the Client at the e-mail address provided
by Client to BabyGigs. Any party
may designate a change of e-mail address at any time by giving e-mail notice
thereof to the other party. All
notices shall be deemed received when sent.
(c) Nature
of Relationship. BabyGigs is an independent contractor. This Agreement shall not create an employer/employee
relationship, partnership, joint venture or agency, between BabyGigs (Gigapixel Creative, Inc.), on
the one hand, and Client, on the other hand.
(d) No
Waiver. No failure
or delay by BabyGigs in exercising any right, power, or privilege under this
Agreement will operate as a waiver thereof; nor will any single or partial
exercise thereof preclude any other or further exercise of any right, power or
privilege hereunder.
(e) Entire
Agreement; Amendment.This Agreement contains the entire agreement and understanding of the
parties with respect to the subject matter hereof, supersedes all prior
agreements and understandings with respect thereto and cannot be modified,
amended, waived or terminated, in whole or in part, except in writing.
(f) Enforceability. In case any provision of
this Agreement shall be invalid or unenforceable, the validity and
enforceability of the remaining provisions of the Agreement will not in any way
be affected or impaired thereby.
(g) Counterparts. This Agreement may be
executed in any number of counterparts, which together shall constitute one
Agreement.
(h) Headings. The headings of
sections and subsections of this Agreement are inserted for convenience of
reference only and are not to be considered in construing the provisions
hereof.
(i) Governing Law This Agreement shall be governed by the laws of the State of New York
without references to the principles of conflicts of laws thereof.
(j) Arbitration. The parties agree that they
will use their best efforts to amicably resolve any dispute arising out of or
relating to this Agreement. Any
controversy, claim or dispute that cannot be so resolved shall be determined
(i) if the sum in issue is within the jurisdiction of the New York City Civil
Court, Small Claims Part, New York County, and all other facts and
circumstances allow the matter to be heard by such court, then by the decision
of such court or (ii) if the criteria of clause (i) do not apply, then by final
binding arbitration in accordance with the rules of the American Arbitration
Association. Any such arbitration
shall be conducted in the State of New York, Country of New York where BabyGigs
is located. In the interest of
keeping costs to a minimum, the parties shall endeavor to find a single
arbitrator mutually agreeable to them. In the event that the parties are not able to select a single arbitrator
within 15 days, each party shall select one person to act as arbitrator, and
the two arbitrators so selected shall select a third arbitrator within ten (10)
days of their appointment. Each party shall bear its own costs and expenses and
an equal share of the arbitrators' expenses and administrative fees of
arbitration. Judgment upon the
award rendered by the small claims court or arbitrator(s) may be entered in any
court having jurisdiction thereof.
ADDENDUM
ADDITIONAL SERVICES AVAILABLE
ADDITIONAL SERVICE |
ADDITIONAL SERVICE
FEE FOR FIRST YEAR OF THE ADDITIONAL SERVICE (AFTER FIRST YEAR ADDITIONAL
SERVICE ISFREE EXCEPT UPDATES) |
Flash intro page for the Site |
$40 per month during Initial Term |
Additional pages for Site (in excess of 6) |
$40 per month during Initial Term per 5 more |
Additional updates beyond the one per year provided as
part of the Basic Services |
$200 per request (including after first year) |
E-commerce -- Site will be set up to provide for shopping
cart transactions. We do not
provide credit card processing, or management of purchases and transactions
on the Site. |
To Be Determined |
Forum -- a
chat room for your Site |
$40 per month during Initial Term. |
Additional music files |
$10 per month during Initial Term per 5 more |
Contact Form -- e-mail interface built into the Site |
$10 per month during Initial Term |
Database to collect information from visitors to the Site |
To Be Determined |
Additional storage beyond the 250 MB of storage provided as part of
the Basic Services |
To Be Determined |
Provision by BabyGigs of an advanced online marketing and
optimization campaign to maximize website traffic |
To Be Determined |
E-mail us to inquire
if other Additional Services become available
