The Mighty Mo! Design Co. LLC
400 S. 4th St., Suite 401
Minneapolis, MN 55415
The Mighty Mo! Service Contract
Platinum WordPress Hosting Agreement
1.1 “Customer” means the persons, entity or agents and authorized representatives accepting this agreement. “Consultant” means The Mighty Mo Design Co. LLC.
1.2 “Content” means all text, pictures, sound, graphics, video, links, and other data stored by Customer on Consultant’s server computers.
1.3 “Website” means pages presenting the Content stored by Customer on Consultant’s server computers.
1.4 “User” means users of Customer’s Website.
1.5 “User Content” means all text, pictures, sound, graphics, video, links, and other data stored by Users on Consultant’s server computers.
1.6 “Confidential Information” means information that Customer takes reasonable steps to maintain in confidence and identifies in writing to Consultant as confidential.
2. Web Hosting.
2.1 – Hosting.
Consultant will provide shared server computers, as specified in Section 2.3, with an Internet address for storage and access of Content, User Content, and the Website. The Website, Content, and User Content must be “server-ready.” Consultant will provide bandwidth and storage as specified in Section 2.3. If Customer requires additional bandwidth or storage, Consultant will negotiate in good faith to amend this Agreement unless Consultant’s server computers cannot accommodate the requested bandwidth or storage.
2.2 – Website Backup.
Consultant agrees to create nightly backups and maintain those backups for up to 30 days. Due to the nature of computer files and website architecture, backups are not guaranteed to be available or working. Website backups are, ultimately, Customer’s responsibility. Consultant is not responsible for lost Content or lost User Content.
2.3 – Server Resources.
Customer is entitled to 1 GB of storage and 10,000 visits per month per domain. Up to 1 mysql database per domain will be provided to run the WordPress software.
2.4 – Standards.
Consultant’s services will conform to the following:
2.4.1 – Availability of Website.
Consultant will provide hosting services for the Website that meet reasonable commercial standards for, among other matters, packet loss, accessibility, latency, availability, and throughput.
2.4.2 – Security.
Consultant will take commercially reasonable steps to prevent unauthorized access to the Website, Content, User Content, and Confidential Information stored on Consultant’s server computers.
2.4.3 – Server/Network Computer Outages.
Consultant will employ best efforts in providing advance notice to Customer of scheduled server computer/network outages.
2.4.4 – Disclaimers.
Consultant provides no equipment, software, or communication connections to Customer. Consultant makes no representations, warranties or assurances that the Customer’s equipment, software, and communication connections will be compatible with Consultant’s hardware and service.
3. Ownership of Content.
All Content and User Content stored by Customer on Consultant’s server computers shall at all times remain the property of Customer. Customer grants to Consultant a non-exclusive, worldwide license to the Content and User Content only to the extent necessary for Consultant to host the Website.
4. Content Control.
4.1 – Lawful Purpose.
Customer will only use Consultant’s hardware and services for lawful purposes and Customer will not store or provide any Content or User Content or link to any material that violates foreign, federal, state or local law, the Terms of Service of Exhibit B and any modifications thereof, Consultant’s posted Acceptable Use Policy , or any other Consultant policy.
4.2 – Remedy for Violation.
Should Consultant become aware that Customer has violated Part 4.1, Consultant may, at its option, remove the Content or User Content in violation, immediately terminate hosting Customer’s Website under Part 6.3, and/or notify authorities. If hosting is terminated, Consultant may, in its sole discretion, reinstate hosting upon adequate showing of Customer’s right to use the Content or User Content.
5.1 – Fees.
Customer agrees to have applicable hosting fees and hosting setup fees automatically charged to Customer’s credit card. Consultant will charge Customer’s credit card or email the invoice annually, and payment is due fourteen (14) days from invoicing. Consultant may, at its option, charge a 10% fee for late payments.
5.2 – Returned Checks and Declined Credit Cards may incur a fee.
5.3 – Account Updates.
It is the responsibility of the customer to maintain accurate billing information with Consultant. This may include updated credit card information, email address and mailing address.
5.4 – Taxes.
Customer is solely liable for any taxes or fees payable for products or services sold by Customer on the Website.
6. Term and Termination.
6.1 – Term.
The initial term is agreed upon during account signup. After the initial term, this Agreement will automatically renew on an annual basis until terminated.
6.2 – Termination by Customer.
During the initial term, Customer may terminate this Agreement upon the material breach of Consultant, if such material breach remains uncured for thirty (30) days following written notice to Consultant. This cure period shall be extended by delay caused by events beyond the control of Consultant including, but not limited to, natural disasters, governmental prohibitions or regulations, viruses that did not result from the acts or omissions of Consultant, or technical faults of Consultant’s service providers or vendors. After the initial term, Customer may terminate this Agreement upon fourteen (14) days written notice to Consultant.
6.3 – Termination by Consultant.
Consultant may immediately terminate this Agreement for cause at any time without penalty. Causes justifying immediate termination include, but are not limited to: violation of any foreign, federal, state, or local law; non-payment of fees due under Part 5 of this Agreement; breach of this Agreement;and violation of any other Consultant policy. Consultant may terminate this Agreement without cause at any time upon thirty (30) days written notice to Customer.
7. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, Consultant, AND ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE, MAKE NO WARRANTY IN CONNECTION WITH Consultant HARDWARE OR SERVICES, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY. Consultant, ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOST DATA OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE Consultant HARDWARE OR SERVICES. CUSTOMER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY SHALL BE RETURN OR REDUCTION OF FEES PAYABLE TO Consultant.
9. Customer Indemnity.
Customer shall defend Consultant against any third party claim, action, suit or proceeding arising as a result of Customer’s use Consultant’s hardware or services and indemnify Consultant for all losses, damages, expenses, and costs incurred by Consultant as a result of a final judgment entered against Consultant in any such claim, action, suit or proceeding.
10. General Provisions.
10.1 – Governing Law.
This Agreement will be governed and construed in accordance with the laws of the State of Minnesota. Both parties agree to submit to personal jurisdiction in Hennepin County, MN, and further agree that any cause of action or dispute arising under this Agreement will be litigated or arbitrated in Hennepin County, MN, United States of America.
10.2 – Severability and Waiver.
If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
10.3 – Relationship of Parties.
No agency, partnership, joint venture, or employment relationship is created by this Agreement and neither party has the power to bind the other party.
10.4 – Attorneys Fees and Costs.
In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled, in addition to its court costs, to such reasonable attorneys’ fees, expert witness fees and legal expenses as may be fixed by a court of competent jurisdiction.