Subject to the terms of this Agreement, and contingent on Client’s satisfaction of Interactive Palette’s credit approval requirements, Interactive Palette agrees to provide the web services described in the Order for fees stated in the Order.
The initial service term of the Agreement shall begin on the date that Interactive Palette generates an e-mail message to Client announcing the activation of the Client’s account (the “Service Commencement Date”) and shall continue for the number of months stated in the Order (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for the same length as the Initial Term (each a “Renewal Term”) unless Interactive Palette or Client provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”
(a) Fees: Fees are payable in advance on the first day of each billing cycle. Client’s billing cycle shall be annually, monthly or up front as indicated on the Order, beginning on the Service Commencement Date. Interactive Palette may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Client authorizes Interactive Palette to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise Interactive Palette will invoice Client via electronic mail to the Primary Client Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 14th day following invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in United States dollars. Client is responsible for providing Interactive Palette with changes to billing information (such as credit card expiration, change in billing address). At its option, Interactive Palette may accrue charges to be made to a credit/debit card until such charges exceed $10.00. Interactive Palette may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Interactive Palette may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Client agrees to pay Interactive Palette’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay Interactive Palette’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Expenses: Out-of-pocket costs incurred on behalf of the Client will be billed in addition to the fee for services and will be subject to a 10 percent service charge to cover administrative, bookkeeping and credit costs incurred by Interactive Palette. Stock Imagery is charged at a rate of $12 per credit.
(c) Fee Increases: Interactive Palette may increase its fees for services effective the first day of a Renewal Term by giving notice to Client of the new fees at least thirty (30) days prior to the beginning of the Renewal Term, and if Client does not give a notice of non-renewal as provided in Section 2 above, the Client shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
(d) Taxes: At Interactive Palette’s request Client shall remit to Interactive Palette all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Interactive Palette), regardless of whether Interactive Palette fails to collect the tax at the time the related services are provided.
(e) Early Termination: Client acknowledges that the amount of the fee for the service is based on Client’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Interactive Palette terminates the Agreement for Clients’ breach of the Agreement in accordance with Section 8 (Termination), or Client terminates the service other than in accordance with Section 8 (Termination) for Interactive Palette’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
4. Customer Information
Client represents and warrants to Interactive Palette that the information he, she or it has provided and will provide to Interactive Palette for purposes of establishing and maintaining the service is accurate. If Client is an individual, Client represents and warrants to Interactive Palette that he or she is at least 18 years of age. Interactive Palette may rely on the instructions of the person listed as the Primary Client Contact on the Order with regard to Client’s account until Client has provided a written notice changing the Primary Client Contract.
Client agrees to indemnify and hold harmless Interactive Palette, Interactive Palette’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Client’s services in violation of applicable law by Client or any person using Client’s log on information, regardless of whether such person has been authorized to use the services by Client.
6. Disclaimer of Warranties
Interactive Palette does not warrant or represent that the services will be uninterrupted, error-free, or completely secure. To the extent permitted by applicable law interactive palette disclaims any and all warranties including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. To the extent permitted by applicable law, all services are provided on an “as is” basis.
7. Limitation of Damages
Interactive Palette shall not be liable to client for any lost profits, or any indirect, special, incidental, consequential or punitive loss or damage of any kind, or for damages that could have been avoided by the use of reasonable diligence, arising in connection with the agreement, even if the party has been advised or should be aware of the possibility of such damages.
Notwithstanding anything else in the agreement to the contrary, the maximum aggregate liability of interactive palette and any of its employees, agents or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall be a payment of money not to exceed the amount payable by customer to interactive palette for three months of service.
(a) Suspension of Service: Interactive Palette is a developer of ethical websites.Interactive Palette will not design, promote, or attach links to any site that includes adult content, nudity, obscene language, or that encourages or promotes
intolerance or discrimination of or towards people of any race, color, sex, creed, or religion.Client agrees that Interactive Palette may suspend services to Client without notice and without liability if Interactive Palette reasonably believes that the services are not being used in a commercially reasonably manner. Client shall pay Interactive Palette’s reasonable reinstatement fee if service is re-instituted following a suspension of service under this subsection.
(b) Termination: The Agreement may be terminated by Client prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Interactive Palette fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Client’s written notice describing the failure in reasonable detail. The Agreement may be terminated by Interactive Palette prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Client is overdue on the payment of any amount due under the Agreement; (ii) Client materially violates any other provision of the Agreement, and fails to cure the violation within thirty (30) days of a written notice from Interactive Palette describing the violation in reasonable detail; (iii) or upon one (1) days notice if Client violates Section 4 (Client Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
9. Requests for Client Information
Client agrees that Interactive Palette may, without notice to Client, (i) report to the appropriate authorities any conduct by Client or any of Client’s customers or end users that Interactive Palette believes violates applicable law, and (ii) provide any information that it has about Client or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
10. Changes to Interactive Palette’s Network
Upgrades and other changes in Interactive Palette’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Client’s hosted content and/or applications. Interactive Palette reserves the right to change its network in its commercially reasonable discretion, and Interactive Palette shall not be liable for any resulting harm to Client.
Notices to Interactive Palette under the Agreement shall be given via electronic mail to the e-mail address posted for customer support. Notices to Client shall be given via electronic mail to the individual listed as the Primary Client Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Client may change his, her or its notice address by a notice given in accordance with this Section.
12. Force Majeure
Interactive Palette shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Interactive Palette’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
13. Governing Law/Disputes
This Agreement shall be construed and interpreted in accordance with the law of the Commonwealth of Massachusetts.All claims and disputes relating to Interactive Palette’s services may be resolved by binding, final arbitration in Boston, MA, under the rules of the American Arbitration Association. Any demand for arbitration is subject to the statute of limitation in effect for a civil action.
14. Property Rights
The Client represents to Interactive Palette and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Provider for including in the website are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements and will hold harmless, protect, and defend Provider from any claim or suit arising from the use of such elements furnished by the Client.All content and materials prepared by Interactive Palette on the Client’s behalf remain the property of the Client and will be surrendered upon request or termination of the agreement in accordance with the terms stipulated above and full payment by the Client of all services, costs, and expenses incurred.
This Agreement may be amended only by a formal written agreement signed by both parties.
16. Acknowledgement of Services
Interactive Palette reserves the right to utilize portions of the above work product in promotional materials as examples of Interactive Palette’s work, or otherwise indicate to others that Interactive Palette is providing certain services to Client as defined in the scope of this agreement. Client agrees to acknowledge the involvement of Interactive Palette in providing such services.
17. Successors and Assigns
Interactive Palette and Client agree to bind themselves, their successors and assigns to the terms of this Contract.