 |
|
|
|
|
|
This document is legally
binding. Please read this carefully!
If you are not a legal
professional, immediately retain qualified legal counsel to
advise you!
***
Outa Knoware, Intl. Software
Development and Internet Services Agreement and Contract
I. Financial Responsibilities:
-
Outa Knoware, Intl. also
to be referred to or termed in this contract as "OutaKnoware",
Outa Knoware" or "Outa Knoware, Intl." only
for the expressed intent to make this contract easier to
read. In all cases, Outa Knoware, Intl is a subsidiary of
inKnoware, inK. Inc, a Massachusett's corporation.
-
The Customer agrees to a
minimum of a three (3) month contract, beginning upon commencement
of service(s.)
-
First three (3) months payment
plus a non-refundable setup charge, if any, shall be due
upon receipt of contract, be it written, orally or by any
other electronic means (e.g. email).
-
This agreement will automatically
renew for successive three (3) month periods for the life
of the contract until cancelled in writing by Postal
mail. Customers paying by check or money order
will receive an invoice for charges and payment is due upon
receipt. Customers paying by credit card expressly agree
to have their credit card account billed quarterly for the
recurring charges for the life of the contract including
any automatic renewal periods.
-
Initial payment is due with
the contract. For accounting purposes, renewal charges for
contracts received on or after the 20th of the month will
accrue as of the 1st of the following month. By way of example,
an account setup on August 20th will be setup immediately
and the initial payment will be due with the contract. The
initial term of the agreement will be August 20 through
November 30. The first renewal charge will be due in December
for second quarter of services. Any and all late or past
due accounts are subject to interest accrual at an annual
rate of 18%, subject to change with written notice. Customers
with outstanding invoices or payments will be provided with
both electronic documentation of the issue(s) and a Request
for Assurances, in good faith requesting your status.
-
OutaKnoware shall not be
liable for any taxes and/or other fees to be paid in accordance
with or related to sales, product transfer or any legal
saleable transaction made by the Customer using OutaKnoware's
server(s) or associatted software. The Customer agrees to
take full responsibility for all taxes and all fees of any
nature associated with said items sold by the Customer.
The Customer is soley responsible for applying any and all
laws that apply to the state in which their company has
personal and subject matter jursidication
-
The basic defined service
is that of an internet hosting service provider. This service
consists solely of providing disk space and common tools
for managing ftp, http, https and email applications. Other
services made be purchased as an add feature and varying
services are provided at published rates on the control
panel provided for your accounts operation.
-
The Customer will provide
OutaKnoware with material and data in a condition that is
"server-ready", which is in a form requiring no additional
manipulation on the part of OutaKnoware. OutaKnoware shall
make no effort to validate this information for content,
correctness or usability.
-
Use of OutaKnoware's service
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 the Customer's Webspace by the Customer. The following
examples are offered: Web Publishing: requires a knowledge
of HTML, properly locating and linking documents, FTPing
Webspace contents, Graphics, text, Sound, imagemapping,
etc.CGI-Scripts: requires a knowledge of the UNIX environment,
TAR & GUNZIP commands, Perl, CShell scripts, permissions,
etc. Autoresponders: a knowledge of mReply autoresponder,
forwarding mail, use of mail by Customers to receive mail,
etc.
-
The Customer agrees that
he or she has the necessary knowledge to create the Customer's
Webspace. The Customer agrees that it is not the responsibility
of OutaKnoware to provide this knowledge or Customer Support
outside of the defined service of OutaKnoware.
-
The Customer agrees that
he or she has the necessary knowledge and understanding
of mail services and functions they can provide. The Customer
agrees that it is not the responsibility of OutaKnoware
to provide this knowledge or Customer Support for services
of this nature OutaKnoware.
-
The Customer agrees that
with this necessary knowledge and understanding, by asking
and accepting internet server based questions beyond the
standard minimum level of service, Outa Knoware, Intl. may,
at its discretion, bill at an hourly rate for services provided.
As of Dec 1, 2006, that rate is $150.00 USD per hour.
-
OutaKnoware will exercise
no control whatsoever over the content of the information
passing through the network. OutaKnoware makes no warranties
or representations of any kind, whether expressed or implied
for the service it is providing. OutaKnoware also disclaims
any warranty of merchantability or fitness for particular
purpose and will not be responsible for any damages that
may be suffered by the Customer, including loss of data
resulting from delays, non-deliveries or service interruptions
by any cause or errors or omissions of the Customer. Use
of any information obtained by way of OutaKnoware is at
the Customer's own risk, and OutaKnoware specifically denies
any responsibility for the accuracy or quality of information
obtained through its services. OutaKnoware expressly limits
its damages to the Customer for any non-accessibility time
or other down time to the pro- rata monthly charge during
the system unavailability. OutaKnoware specifically denies
any responsibilities for any damages arising as a consequence
of such unavailability. In the event that this material
is not "Server-ready", OutaKnoware may, at its option and
at any time, reject this material, including but not limited
to after it has been put on OutaKnoware's Server. OutaKnoware
agrees to notify the Customer immediately of its refusal
of the material and afford the Customer the opportunity
to amend or modify the material to satisfy the needs and/or
requirements of OutaKnoware. If the Customer fails to modify
the material, as directed by OutaKnoware, within a reasonable
period of time, which shall be determined between the parties
themselves, the Agreement shall be deemed to be terminated
-
The Customer warrants that
it has full legal rights to use any and all applicable trademarks,
copyrights, patented techniques, if any. Additionally, any
and all infringing software or other electronic data that
is found to violate the rights of others will be removed
solely at the discrection of Out Knoware.
-
The Customer is responsible
for and must provide all telephone, computer, hardware and
software equipment and services necessary to access Outa
Knoware. Outa Knoware makes no representations, warranties
or assurances that the Customer's equipment will be compatible
with the OutaKnoware service.
-
The Customer certifies that
the responsible party entering into this contract, he or
she, is a majority person being of at least 21 years of
age.
-
The Customer may not use
Outa Knoware servers for the purpose of MASS Electronic
Junkmail. The Customer may not use OutaKnoware servers
for excessive computation time inappropriate for Internet
Web servers. The Customer may not install in her/his account
any program which presents a security problem on that server.
OutaKnoware reserves the right to immediately cancel any
service account which is causing a disruption of services
for other customers. Electronic forums such as mail distribution
lists and Usenet news groups all have expectations regarding
subject area and appropriate etiquette for posting. Users
of these forums should be considerate of the expectations
and sensitivities of others on the network when posting
material for electronic distribution. The network resources
of OutaKnoware may not be used to impersonate another person
or misrepresent authorization to act on behalf of others
or OutaKnoware. All messages transmitted via OutaKnoware
should correctly identify the sender; users may not alter
the attribution of origin in electronic mail messages or
posting. Users must not attempt to undermine the security
or integrity of computing systems or networks and must not
attempt to gain unauthorized access.
-
This Agreement may be terminated
by either party, without cause, by giving the other
party 30 days written notice. Notice must be made by
written postal mail. OutaKnoware will not accept
terminations over the telephone or via email..
Notwithstanding the above, OutaKnoware may terminate all,
any or portions of any service(s) under this Agreement at
any time, for any reason, without penalty, if the Customer
fails to comply with the terms of this Agreement, including
non-payment. OutaKnoware reserves the right to charge a
reinstatement fee.
-
The Customer expressly agrees
that use of Outa Knoware's Server is at the Customer's sole
risk. Neither Outa Knoware, nor its employees, affiliates,
agents, third party information providers, merchants licensers
or the like, warrant that OutaKnoware's Server service will
not be interrupted or error free; nor do they make any warranty
as to the results that may be obtained from the use of the
Server service or as to the accuracy, reliability or content
of any information service or merchandise contained in or
provided through the Outa Knoware Server service, unless
otherwise expressly stated in this Agreement.
-
Under no circumstances, including
negligence, shall Outa Knoware, its officers, agents or
anyone else involved in creating, producing or distributing
Outa Knoware's Server service be liable for any direct,
indirect, incidental, special or consequential damages that
result from the use of or inability to use the Outa Knoware
Server service; or that results from mistakes, omissions,
interruptions, deletion of files, errors, defects, delays
in operation, or transmission or any failure of performance,
whether or not limited to acts of God, communication failure,
theft, destruction or unauthorized access to OutaKnoware's
records, programs or services. The Customer hereby acknowledges
that this paragraph shall apply to all content on OutaKnoware's
Server service.
-
Notwithstanding the above,
the Customer's exclusive remedies for all damages, losses
and causes of actions whether in contract, tort including
negligence or otherwise, shall not exceed the aggregate
dollar amount which the Customer paid during the term of
this Agreement and any reasonable attorney's fee and court
costs.
-
The Customer may only use
OutaKnoware's Server for lawful purpose. Transmission of
any material in violation of any Federal, State or Local
regulation is prohibited. This includes, but is not limited
to copyrighted material, material legally judged to be threatening
or obscene, pornographic, profane, or material protected
by trade secrets. This also includes links or any connection
to such materials.
-
The Customer agrees that
it shall defend, indemnify, save and hold OutaKnoware harmless
from any and all demands, liabilities, losses, costs and
claims, including reasonable attorneys' fees, ("Liabilities")
asserted against OutaKnoware, its agents, its customers,
servants officers and employees, that may arise or result
from any service provided or performed or agreed to be performed
or any product sold by the Customer, its agents, employees
or assigns. The Customer agrees to defend, indemnify and
hold harmless OutaKnoware against Liabilities arising out
of (i) any injury to person or property caused by any products
sold or otherwise distributed in connection with OutaKnoware's
Server; (ii) any material supplied by the Customer infringing
or allegedly infringing on the proprietary rights of a third
party; (iii) copyright infringement and (iv) any defective
product which the Customer sold on the OutaKnoware Server.
-
Revisions to this Contract
will be applicable to previous Contracts. Revisions will
be considered agreed to by the Customer on renewal of OutaKnoware
Services as specified in Section I. Financial Arrangements.
-
The Customer may not transfer
this agreement without the expressed written consent of
OutaKnoware.
XIV. Software Development
Services:
1. Software development service
are available to all interested partys. Development is on either
a long term (6 month to one year) written contract, or is availble
on an hourly basis which varies according to the work made for
hire. All pricing information is assumed to be confidential
by Outa Knoware and its Customers once the final development
agreement is signed and in place. Customers that have outstanding
invoices, may, solely at the discrection of OutaKnoware, halt
all work until payments due have become current. Houlry pricing
for software development based on a signed purchase order will
be honored at quotated rate. Short term (typically less than
45 hours ) freelance hourly work, due to the rapidly changing
environment typical of these developments, can,will, or may
change in hourly rate on a case by case basis (but no change
while a quoted project is being performed will occur). Customer
will be noticed by phone or electronic methods as to the changes
in rate as a best efforts means of good faith communication.
Any and all contractual documents as they relate to work-for-hire
development or any other service agreements beyond the scope
of this document, must be signed and notarized by Customer and
a principle of OutaKnoware for said documents to become legally
binding.
2. Upon completion or termination
of services, any and all work-for-hire materials will be returned
or deleted, at OutaKnoware's option to said Customer. Software,
documentation, source code, images and other electronic materials
will be provided on CD or DVD at the Customer request, free
of charge. If the development material(s) are so large that
other arrangements must be made to transfer them, additional
cahrges may apply. Some electronic materials may not function
on different operating systems (e.g. Windows™, Macintosh™,
Linux, ARM etc) or other commercial data engines (e.g. Oracle
DB, MySQL, MSSQL7). OutaKnoware will provide these materials
in a "best efforts" good faith format, such that someone
with professional skills in that area would be able to make
it function properly. Additionally, training and extra development
time to aid in bringing Customer "up to speed" on
the inner working of the software will incur additional expense,
houlry rate subject to quotation. In addition, any and all trade
secrets, confidential information or other company confidentialk
material may be destroyed or returned based upon customer's
written request.
3. See also (12) supra. The Customer
agrees that by asking and accepting internet server based questions
beyond the standard minimum level of service, Outa Knoware,
Intl. may, at its sole discretion, bill at an hourly rate for
services provided. As of Dec 1, 2006, that hourly rate is $150.00
USD per hour.
XV. Merger Clause:
This Agreement represents the entire
understanding between the parties with respect to the subject
matter hereof and supercedes all other written or oral agreements
heretofore made by or on behalf of Customer or Recipient with
respect to the subject matter hereof and may be changed only
by agreements in writing signed by authorized representatives
of the parties.
XVI. Jurisdication:
This Agreement shall be governed
by and construed and interpreted in accordance with the Laws
of the Commonwealth of Massachusetts, without giving effect
to its laws governing conflict of laws. This Agreement shall
be binding upon and inure to the benefit of the parties hereto
and their respective successors, subsidiaries, affiliates, asigns,
heirs and legal representatives.
***
This document can and will be
update to reflect new laws governing electronic materials and
their distribution.
Outa Knoware, Intl (a subsidiary of inKnoware,inK., Inc) reserves
the right to amend this document solely at its discretion.
Thank You!
|
|
|
|
