STANDARD TERMS & CONDITIONS
1. AGREEMENT SCOPE
During the Term, we will provide you with products & services relating to the development, hosting and maintenance of a website and/or implementation of certain Internet technology (collectively the “Jazel Solutions”), in conformance with the Jazel Technology Packages (the “Packages”), and Additional Services, selected by you in Section 2 to which these Standard Terms & Conditions and as further described in Section 3 hereto. These Standard Terms & Conditions (Section4), together with Section 1, 2 & 3, shall comprise the Agreement.
We will assist you implementing the Jazel Solutions to promote your business, incorporating graphics, designs, layouts, templates, databases, software, codes and systems developed and owned by us. Any trademarks, trade names, logos, text, images, data or other materials you provide to us for inclusion in the Jazel Solutions shall remain your sole and exclusive property. In addition, all leads generated through the Jazel Solutions and all data you input into the Jazel Solutions shall remain your sole and exclusive property. Subject to the foregoing, the entire content of the Jazel Solutions, including all material created by us and all software utilized by us in operating the Jazel Solutions, shall remain our sole and exclusive property, with the exception only of any material licensed by us from third parties. Accordingly, we, along with our successors and assigns, shall exclusively own all Intellectual Property Rights in perpetuity relating to the Jazel Solutions. “Intellectual Property Rights” means: any and all copyrights, trademarks and trade name rights, trade secret rights, patents, designs, algorithms, and all other proprietary rights of every kind and nature relating to the Jazel Solutions (including custom graphics we create for you and the “look and feel” of any website included in the Jazel Solutions); and all registrations, applications, renewals, extensions, continuations, division or reissues thereof. In the event that you instruct us to secure, modify, update, administer or otherwise control (collectively “Control”) one or more domain names in connection with the provision of our services hereunder, we will thereafter have the exclusive right during the Term, including during all renewals thereof and all cure periods in the event of your default hereunder, to Control such domain name(s). Transfer to you of the domain name(s) will thereafter be made only upon termination of this Agreement and payment in full by you of all sums due and owing us hereunder. We shall be permitted to: (i) collect and aggregate data generated through the use of the Jazel Solutions together with data we have obtained from other websites we have developed for the sole purpose of performing internal statistical analysis of the results of our services and such websites, and (ii) disclose the aggregated data (without identification of you in any way) to prospective purchasers of our services. However, under no circumstances will we segregate your data and disclose it to third parties.
You agree to pay us our fees in conformance with the Packages and Additional Services you have selected. The Effective Date of this Agreement is the date we receive your executed agreement. All set-up fees (design, build-out, training, one-time fees, etc.) and the first month’s fees are payable in full on the Effective Date. Thereafter, upon activation (as defined in subparagraph 4a below) of our Jazel Solutions or Services, the monthly service fees are due and payable in advance on the first day of each calendar month and shall be deemed late if not paid by such date. We will charge you a late fee of $100 for each month, or part thereof, in which a dealership monthly service fee remains unpaid, such late fee being intended to partially reimburse us for our administrative costs incurred in processing late payments. We reserve the right to modify our monthly fees at any time during the Term, provided that: (i) we give you thirty (30) days advance written notice of each such modification, and (ii) you shall have the right to terminate this Agreement at any time prior to expiration of such notice period. We reserve the right, without prior notice to you, to immediately cease providing the Jazel Solutions and our services and to suspend your website(s) in the event that, and for so long as, any amount due us hereunder remains unpaid by you after its payment due date. All fees due hereunder will continue to accrue and be payable to us during any such period of cessation.
a) The term (“Term”) of this Agreement shall commence upon the Effective Date and shall continue for the “Initial Agreement Term” as indicated in the Pricing or Authorization Section of the Jazel Enrollment Form. The “Initial Agreement Term” will begin on the date the Jazel Software is activated (which shall be deemed to have occurred by not later than 3 days after delivery of the Jazel Solutions for your review unless otherwise agreed to by the parties in writing). The Term shall automatically renew for successive periods of one year each, subject to termination by you at the end of each one year period upon at least thirty (30) days advance written notice. Upon termination of this Agreement, we shall cease providing our services and shall terminate operation of the Jazel Solutions, and no further monthly service fees shall be due us following the effective date of termination (except as provided in subparagraphs 4b and 4c).
b) In addition, in the event that either party shall be in breach of any provision of this Agreement (including non-payment of any fees due here under), the non-breaching party may terminate this Agreement by providing the breaching party with thirty (30) days written notice of breach, setting forth with reasonable specificity in such notice the nature of the breach and providing the breaching party with an opportunity to cure the breach within such time period. The foregoing written notice may include a provision giving the non-breaching party the right to defer its election to terminate until expiration of the cure period. Further, either party may terminate this Agreement immediately by written notice in the event that the other party commences a bankruptcy proceeding or is subject to appointment of a receiver over its property. Finally, we may terminate this Agreement upon five (5) business days written notice in the event that, in our reasonable judgment, your use of the Jazel Solutions is in any way deceptive, misleading, unfair, or otherwise in violation of any law.
c) In the event that we elect to terminate this Agreement for any of the reasons set forth in subparagraph 4b, we shall cease providing our services and shall terminate operation of the Jazel Solutions. All amounts owed to us as of the date of such termination, together with all amounts due for the balance of the then current one year period of the Term (including service fees for the balance of such one year period), shall be immediately due and payable to us. In the event that, following such termination of operation of the Jazel Solutions, we shall elect to reactivate the Jazel Solutions in response to a request from you (which election shall be in our sole discretion and shall not constitute a waiver of any rights or remedies hereunder), you agree to pay us a reactivation fee of $250.00.
We represent and warrant that we have the power and authority to enter into this Agreement. We further represent and warrant that any material provided by us and incorporated into the Jazel Solutions will not violate any third party Intellectual Property Rights. In the event that we utilize any material licensed from third parties, we represent and warrant that we have secured all necessary consents and permissions to do so. Except with respect to the foregoing, we make no representation or warranty with respect to the content of the Jazel Solutions (by way of example only, whether the advertising claims about your business set forth in any website created hereunder conform to applicable federal, state, and local laws), and we shall not be liable for any claims or damages resulting therefrom. You represent and warrant that you have the power and authority to enter into this Agreement and to grant the rights granted herein. You further represent and warrant that you own all right, title and interest in and to the material provided by you for incorporation into the Jazel Solutions, or that you have a license with a sufficient right of sublicense, to so use, reproduce, and/or distribute such material, and that the use of such material in the Jazel Solutions will not infringe the Intellectual Property Rights, or any other rights of any kind whatsoever, of any third parties. You further represent and warrant that you have the right to grant us access to, and use of, any ad planners and similar product materials utilized by you from time to time in your business, and that such access and use by us in connection with this Agreement will not contravene the rights of any third parties. You further represent and warrant that any content provided by you for incorporation into the Jazel Solutions will conform to applicable federal, state, and local laws. Each party will defend, indemnify, and hold the other (together with its officers, directors, members or shareholders, agents and contractors) harmless from all losses, costs, or damages arising out of the other party’s breach of any of its representations or warranties set forth above. To the extent that you maintain any commercial general liability insurance policy in effect during the Term, including coverage for products liability, advertising injury, and/or errors and omissions, you agree to include us (and our officers, directors, members and/or shareholders, agents and contractors) as additional insureds on such policies.
6. LIMITATION OF LIABILITY
ALL SERVICES ARE PROVIDED TO YOU WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. YOU HAVE AN OBLIGATION TO MITIGATE YOUR DAMAGES. YOUR SOLE REMEDY FOR OUR BREACH OF ANY WARRANTIES HEREUNDER IS AS SET FORTH HEREIN. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF ONE MONTH’S FEES
ACTUALLY PAID BY YOU TO US, FOR SERVICES PROVIDED HEREUNDER, AND IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES, ATTORNEY’S FEES AND OTHER EXPENSES ARISING FROM INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY THE CONTENT PROVIDED BY YOU UNDER THIS AGREEMENT OR ANY OTHER CLAIMS RELATING TO THE CONTENT OF THE JAZEL SOLUTIONS (EXCEPT AS SPECIFICALLY OTHERWISE PROVIDED IN PARAGRAPH 5, ABOVE). IN NO EVENT SHALL WE BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT, INDEMNITY, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. WE WILL NOT BE LIABLE TO YOU FOR INTERRUPTIONS OR DEGRADATIONS OF SERVICES DUE TO LACK OF INTERNET CAPACITY OR EQUIPMENT LIMITATIONS, MODIFICATIONS, REPAIRS, UPGRADES OR RELOCATIONS. WE SHALL NOT BE LIABLE TO YOU FOR INTERCEPTION OF DATA THROUGH THE INTERNET BY THIRD PARTIES. WE HAVE NO CONTROL OVER, ARE NOT RESPONSIBLE FOR, AND WILL NOT BE LIABLE TO YOU FOR, THE ACTIONS OF INTERNET SYSTEMS AND SERVICE PROVIDERS OR ACTS OF GOD THAT CREATE DELAYS OR INTERRUPTIONS OF SERVICES. FOR PURPOSES OF THIS PARAGRAPH, “WE” SHALL INCLUDE OUR OFFICERS, DIRECTORS, MEMBERS AND/OR SHAREHOLDERS, AGENTS, CONTRACTORS, AND EMPLOYEES. THE APPLICATION OF ANY OF THESE PROVISIONS MAY BE CONTRARY TO THE LAWS OF YOUR STATE OF RESIDENCE; IN SUCH CASE, ONLY THOSE PROVISIONS LAWFUL IN YOUR STATE SHALL APPLY TO YOU.
7. GENERAL PROVISIONS
a) Consent. You agree that, commencing on the Effective Date and continuing for the duration of the Term, we may reference your name and our relationship with you in advertising materials promoting our business in all media.
b) No Assignment. You may not assign this Agreement without our prior written consent. We may assign this Agreement to a parent or subsidiary company, to a company affiliated by majority common ownership, or to a company which acquires the majority of our assets or a majority ownership interest in our business. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective executors, administrators, heirs, successors and assigns, as the case may be.
c) Entire Agreement. This Agreement constitutes the entire Agreement between you and us relating to the Website and our services. This Agreement supersedes all prior agreements between us.
d) Modifications. This Agreement may only be changed or modified by a writing signed by both parties.
e) Severability. In the event any provision of this Agreement is found to be unenforceable under applicable law, the remaining provisions of this Agreement shall remain in full force and effect and shall be enforced to the extent permitted by law consistent with the intent of the parties.
f) Governing Law. This Agreement is governed by and shall be construed according to the laws of the State of California without regard to conflicts of laws provisions. The prevailing party in any action brought to enforce any term of this Agreement shall be entitled to recovery of its reasonable attorney’s fees and actual costs incurred therein. The parties agree that the appropriate jurisdiction and venue for all matters related to this Agreement shall be vested exclusively in the federal, state, or local courts within Orange County, California.
You acknowledge your review and understanding of the above terms and conditions, and your agreement to be contractually bound by signing the Jazel Enrollment Form. This Agreement will be effective as of the acceptance date (the “Effective Date”) listed under the Authorization Section of the Jazel Enrollment Form and is entered into by and between Jazel and you.