1. Payment. Customer shall pay Southern Web Group ("SWG") for Services rendered as they are rendered. Recurring charges may be paid monthly with automatic credit card draft. If customer elects to pay recurring charges by check or money order, payment must be made quarterly or annually. If customer elects to be invoiced quarterly or annually, Customer may pay by credit card, check or money order. Fees for recurring charges must be paid prior to the start of the service period. Payments not received within fifteen (15) days of invoice will be considered late and will incur Late Payment charges as covered herein. Service charges are subject to change at any time, upon notice, in SWG’s sole discretion. SWG will use good faith efforts to notify Customer via e-mail prior to the effectiveness of any change to the Service charges. All invoices and sales receipts are sent via e-mail. Customer has thirty (30) days to dispute any portion of any invoice or sales receipt after which time the invoice or sales receipt is agreed to be correct. If Customer provides a “Credit Card Blanket Authorization Form”, Customer hereby authorizes SWG to charge Customer’s credit card for such amounts on a regular basis beginning with any pre-payments required by the Agreement. If SWG is for any reason unable to effect automatic payment via Customer's credit card, SWG will attempt to notify Customer via email and Customer will have five (5) days to provide a valid credit card before service will be disabled. If check
payments are returned for insufficient funds, Customer will be liable for a returned check fee of $35.00
and may be required to pay for future service with certified funds. Amounts paid for Services are non-refundable. No interest will be paid on deposits or pre-payments. Payment for Services may be made by check or valid credit card accepted by SWG. Payments shall be payable in U.S. dollars. If applicable, Customer shall pay sales, use, gross receipts, excise, access, or other local, state and Federal taxes or charges imposed on the use of the Services. Taxes will be separately stated on the Customer’s invoice.
2. Late Payment. Payments not received within fifteen (15) days of invoice will be considered late. Customer agrees to pay late charges on any unpaid balances at the rate of 1.5% per month on all past due balances.
3. Services. SWG shall provide Customer with the Services identified within the “Description of Proposed Services” that begins on page one (1) of this Agreement. Customer may use the Services for any lawful purpose, provided that such purpose (a) does not interfere or impair the SWG network, equipment or facilities and/or (b) complies with the applicable Acceptable Use Policies (“AUP”) which are incorporated herein by reference. Unless provided otherwise herein, SWG shall use reasonable efforts to maintain the Services in accordance with applicable performance standards. For SWG Services, Bandwidth speed may vary. Customer may not always receive or obtain optimal bandwidth speeds and SWG reserves the right to modify upstream and downstream speeds. Use of the data, Internet, web hosting Services shall be subject to the SWG AUP and the AUP is available online at www.southernwebgroup.com/legal. The AUPs may be amended from time to time during the Term of this Agreement. Customer’s continued use of the Services following an amendment shall constitute acceptance. SWG is not responsible for the networks or facilities of third parties which may be necessary to provide Services.
4. Service Date and Term. This Agreement shall be effective upon execution by the parties. Services shall be provided for the applicable term set forth on the first page of this Agreement. SWG shall use reasonable efforts to make the Services available by the requested service date. SWG shall not be liable for any damages whatsoever resulting from delays in meeting any service dates.
5. Customer Responsibilities. Customer is responsible for providing all company-specific marketing material to SWG in a timely manner. Customer shall use the Services in compliance with all applicable laws and ordinances. If Customer engages in a public performance of any copyrighted material contained in any of the Services provided under this Agreement, the Customer, and not SWG, shall be responsible for obtaining any public performing licenses.
6. Equipment. SWG shall repair any equipment owned by SWG at no charge to Customer provided that damage is not due to misuse, abuse or other disaster including acts of God. If additional equipment, including but not limited to, monitors, computers, circuits, software or other devices, are required by Customer to use the Services, Customer shall be responsible for such equipment.
7. Resale of Service. Customer may not resell any portion of the Service to any other party. Customer shall be responsible for any software and content displayed and distributed by Customer, if any.
8. Rights to the Web Site and Content. With the exception of any Third-Party Materials and background technology used in conjunction with the Services, Customer owns the website and Customer Content. “Customer Content” shall be defined as all content or information (including, without limitation, any text, music, sound, photographs, video, graphics, data, or software), in any medium, provided by Customer to SWG. “Third-Party Materials” means any content, software, or other computer programming material that is owned by an entity other than SWG, and licensed by SWG or generally available to the public, including Customer, under published licensing terms, and that SWG will use in the development of or to display or run a website. The graphics utilized from SWG’s graphics library are licensed from third-party suppliers. Upon written request, SWG will deliver the Customer’s source files and database script, if applicable, for twenty-five ($25) dollars plus any necessary shipping and postage fees. SWG will collect 100% of the fees prior to providing the information via CD.
9. Default. If Customer fails to comply with any material provision of this Agreement, including, but not limited to failure to make payment as specified, then SWG, at its sole option, may elect to pursue one or more of the following courses of action upon proper notice to Customer as required by tariff or applicable law: (i) terminate service whereupon all sums then due and payable shall become immediately due and payable, (ii) suspend all or any part of Services, and/or (iii) pursue any other remedies, including reasonable attorneys’ fees, as may be provided at law or in equity, including the applicable termination liabilities. If the Customer wishes to reconnect the Service(s) following Default, Customer shall pay a twenty-five ($25) dollar reconnection fee plus any hourly labor fees required to reinstate service.
10. Username and Password. Customer is responsible for maintaining the security of their account, passwords, and files. SWG shall not be responsible for the actions of any individuals who misuse or misappropriate your data or other assets using your username and password.
11. IP Addresses and Domain Name Registration. SWG will allocate IP addresses to Customer according to InterNIC guidelines. All IP addresses assigned by SWG must be relinquished by Customer upon the expiration, termination or cancellation of this Agreement. IP address shall be subject to the IP policy in the AUP. If Customer requests, SWG will register an available domain name on behalf of Customer, and such registration shall be subject to rules promulgated by the domain name registrar, which may be amended from time to time and are presently posted at www.southernwebgroup.com/legal. Customer is solely responsible for timely renewal payment and maintenance of domain name registration. SWG shall assume, until notified otherwise, that the Customer wishes to renew all domain names registered by SWG. SWG shall not be responsible for failure to renew Customer domain name if Customer fails to pay for Services or is in Default of the Agreement.
12. Termination. Customer may terminate any or all Services before the end of the term selected by Customer on the first page of this Agreement; provided, however, if Customer terminates Service before the term selected by Customer (except for breach by SWG), or SWG terminates Services for Customer’s breach of this Agreement or the AUPs, Customer may be subject to a termination liability. The termination liability shall equal 100% of the MRC for the terminated Services multiplied by the number of full months remaining in the initial term commitment and is due upon termination. After the initial term, this Agreement shall automatically renew on a month-to-month basis and shall be subject to terms of this Agreement. Any termination of Service(s) by Customer must be in writing. SWG shall return to Customer any monetary amounts pre-paid, less cost that SWG evidences were actually and reasonably incurred prior to notice of termination. SWG may delete any of your archived data after the date of termination.
13. LIMITATION OF LIABILITY. SWG SHALL NOT BE LIABLE FOR DAMAGES FOR FAILURE TO FURNISH OR INTERRUPTION OF ANY SERVICES, NOR SHALL SWG BE RESPONSIBLE FOR FAILURE OR ERRORS IN TRANSMISSION, LOST DATA, FILES OR SOFTWARE DAMAGE REGARDLESS OF THE CAUSE. UNDER NO CIRCUMSTANCES WILL SWG BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS ARISING FROM THIS AGREEMENT. SWG'S MAXIMUM LIABILITY TO CUSTOMER ARISING UNDER THIS AGREEMENT SHALL BE THE LESSER OF $5,000.00 OR THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR SERVICES HEREUNDER.
14. Assignment. Customer may not assign, in whole or in part, this Agreement without the prior written consent of SWG, which consent may be withheld in SWG’s discretion. SWG may assign this Agreement and Service may be provided by one or more legally authorized SWG affiliates.
15. WARRANTIES. EXCEPT AS PROVIDED HEREIN, THERE ARE NO AGREEMENTS, WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE SERVICES. SERVICES PROVIDED ARE A BEST EFFORTS SERVICE AND SWG DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE SHALL BE ERROR-FREE OR WITHOUT INTERRUPTION. SWG MAKES NO WARRANTY AS TO TRANSMISSION OR SPEEDS OF THE NETWORK.
16. INDEMNITY. Customer shall indemnify and hold SWG and its respective affiliates, subcontractors, employees or agents harmless (including payment of reasonable attorneys fees) from and against any claim, actions or demands relating to or arising out of Customer’s use of the Service including without limitation (i) any content or software displayed, distributed or otherwise disseminated by the Customer, its employees, or users of the Services, (ii) any claim that Customer's use of the Service including the registration and maintenance of Customer’s selected domain name(s), infringes on the patent, copyright, trademark or other intellectual property right of any third party; (iii) any malicious act or act in violation of any laws committed by Customer, its employees or users using the Services; and/or (iv) violation by Customer, its employees or authorized users of the SWG AUPs.
17. Viruses, Content, Customer Information. Software or content obtained from the use of SWG Services may contain viruses or other harmful features and Customer is solely responsible for protecting its equipment and software from such matters. Through the use of the Service, Customer may obtain or discover content that is offensive or illegal and Customer assumes the risk and is solely responsible for its access to such content. SWG may disclose Customer information to law enforcement or to any SWG affiliate.
18. Miscellaneous. This Agreement, including the Proposal, Master Terms and Conditions, Service Level Agreements, any applicable tariffs, any documents referenced herein, and the AUPs constitute the entire agreement between SWG and Customer for the Services and equipment provided herein. The invalidity or unenforceability of any term or condition of this Agreement shall not affect the validity or enforceability of any other provision. This Agreement may be modified, waived or amended only by a written instrument signed by the parties; provided SWG may modify the MTC, SLA or AUP and if Customer continues to use the Service, Customer shall be bound by such MTC, SLA or AUP as modified. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Georgia. The failure by either party to exercise one or more rights provided in this Agreement shall not be deemed a waiver of the right to exercise such right in the future. Notices required by this Agreement shall be in writing and shall be delivered either by personal delivery or by mail. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested; with all postage and charges prepaid. All notices and other written communications under this Agreement shall be addressed to the parties at the addresses on the first page of this Agreement, or as specified by subsequent written notice delivered by the party whose address has changed.
19. Regulatory Authority-Force Majeure. This Agreement and the obligations of the parties shall be subject to modification to comply with all applicable laws, tariffs, regulations, court rulings, and administrative orders, as amended. In no event shall either party have any claim against the other for failure of performance if such failure is caused by acts of God, natural disasters including fire, flood, or winds, civil or military action, including riots, civil insurrections or acts of terrorists or the taking of property by condemnation.
20. Web Hosting Service and Anti-Spam/Anti-Virus Filtering Service. SWG reserves the right to select the server for Customer’s web site for best performance. The Customer understands that the Services provided by SWG may be provided on a shared server. If the Customer’s website overwhelms the server and causes complaints from other users, the Customer has outgrown the realm of shared services and will be required by SWG to relocate its web site. If the Customer refuses to comply with this Section, then SWG has the right to terminate the Services. SWG will use reasonable efforts to maintain a full-time Internet presence for the Customer. The Customer hereby acknowledges that the networks SWG employs may, at various time intervals, be down due, but not restricted to, utility interruption, maintenance equipment failure, natural disaster, acts of God, or human error and SWG shall not be liable to customer for such outages or server downtime.
21. Digital Millennium Copyright Act. Pursuant to 17 U.S.C. Section 512(c)3, if you believe that a Web page hosted by SWG is violating your rights under U.S. copyright law, you may file a complaint with SWG. Please contact support@southernwebgroup.com for information necessary to file your complaint with SWG.
22. Headings. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived therefrom.
23. Waiver. The failure of either party to enforce at any time or for any period of time the terms of this document shall not be construed as a waiver of such terms or the rights of such party thereafter to enforce each term contained herein.
Last Updated: July 8, 2008