Website Agreement

Website Agreement For Service from Local Owl, LLC (localowl.digital)

This Agreement, by and between Local Owl, LLC, and the Client, is hereby incorporated by reference into Local Owl, LLC’s development and hosting proposals, sales orders and quotations for service.

1 Website Hosting Services. Local Owl, LLC agrees to provide Client with the services for hosting a website (the “Website”) on the World Wide Web portion of the Internet (the “Hosting Services”). Local Owl Digital web servers maintaining the website (the “Host Server”) will be located within the Amazon Cloud environment or a hosting provider subcontracted by Local Owl, LLC. Local Owl, LLC shall provide the hosting services so that the website is accessible to third parties via the World Wide Web portion of the Internet as specified herein. Local Owl, LLC is responsible for providing the Hosting Services, Maintenance of Website, and Any Changes to the Client’s website, and not for providing any services or performing any tasks not specifically described in this Agreement unless additional services are subscribed to separately from this Website Hosting Agreement.

2 Client Responsibilities. Client shall provide to Local Owl, LLC all materials comprising the website (the “Client Content”), which shall be in a correct format (as specified by Local Owl, LLC in consultation with Client). The Client Content shall be properly adapted and translated by Client for posting to the host server so that the website may be accessed via the Internet. Throughout the term of this Agreement, Client is solely responsible for all the content on the website. Client agrees to not hold Local Owl, LLC responsible for any of the content posted on the Client’s behalf on the website. This includes, but not limited to, website content, pictures, imagery, videos, etc.

3 Local Owl, LLC Responsibilities.

  1. Availability. Within a reasonable time of its receipt of the Client Content, Local Owl, LLC will make the website available on the World Wide Web (the “Installation Date”). Thereafter, Local Owl, LLC will use commercially reasonable efforts, pursuant to the terms and conditions set forth in this Agreement, to make the website accessible via the World Wide Web portion of the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and will use its best efforts to ensure reasonable response times for users accessing the website.

    Local Owl, LLC shall incrementally backup the website and store the backup materials in a safe and secure environment for up to 30 (thirty) days. Upon the termination of this Agreement, after the payment of all fees called due to Local Owl, LLC, Local Owl, LLC shall provide the Client with all the content of the website in a downloaded ZIP File. Local Owl, LLC does not and can not promise that the website will function when transferring to another host. The downloaded files will be provided in HTML format. Functionalities might not work with different host and server setups.

  2. Security. Local Owl, LLC shall endeavor to keep the site files and data as secure as possible, but makes no warranties about the security of any site code or data. Should the website files or content, whether provided by Local Owl, LLC or the Client, become compromised through any manner of security breach, exploit, defacing, or other type of attack, Local Owl shall, at its sole discretion, temporarily take any or all websites offline to repair the files and data to its last known acceptable condition. Local Owl, LLC will communicate with the Client regarding the nature of the breach or exploit and the nature of the resolution.

4 Domain Name Registration. Client shall provide Local Owl, LLC with a registered domain name, or access to said domain name. If Client does not have a registered domain name, Local Owl, LLC will, upon request, use commercially reasonable efforts to register domain name(s) selected by Client provided that such domain name is available for registration and does not violate any registration services’ policies, or any law or regulation. In the event of any dispute arising out of or related to Client’s domain name used in connection with the website, upon Client’s request, Local Owl, LLC will attempt to register an alternative domain name chosen by Client and attempt to make the website available under such alternative name.

5 Ownership of Intellectual Property and Equipment; Licenses

  1. Client Content. Client shall retain all right, title, and interest, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights to the Client Content. Client assumes sole responsibility for the accuracy of any Client Content or other materials provided to Local Owl, LLC for either authoring or hosting. Client hereby grants Local Owl, LLC a non-exclusive, royalty-free license for the term of this Agreement to use, copy, modify, adapt, perform and display the Client Content solely as necessary to fulfill its obligations pursuant to this Agreement. Upon termination or expiration of this Agreement for any reason whatsoever, all rights granted to Local Owl, LLC pursuant to this Section (5.1) immediately revert to Client.

  2. Local Owl, LLC Equipment. Local Owl, LLC retains all rights to the hosting services and any computer hardware, software, telecommunications or other equipment, including the host server(s) used to provide the hosting services (collectively, the “Local Owl, LLC Equipment”). At no time shall Client have any ownership, property, access to, or any other rights in, nor file any lien on, any of the hosting services or the Local Owl, LLC equipment.

6 Confidentiality. Neither party shall disclose to any person or entity, directly or indirectly, without the prior written approval of the other, any confidential information relating to the other party obtained by virtue of this Agreement, except on a confidential basis to its business, legal and financial advisers or as required to be disclosed under applicable law or by legal process. “Confidential Information” shall include, but not be limited to software, technical processes and formulas, source or object code, product designs, sales cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data, and the terms of this Agreement. Confidential information does not include any information that is, (i) generally known or available to the public through no act of the receiving party, (ii) already known to the receiving party at the time of receiving the confidential information, (iii) independently developed by the receiving party; or (iv) furnished to the receiving party by a third party with the right to do so.

7 Billing and Payment

  1. Billing and Payment Terms. Client will be billed on a monthly basis for the hosting services, website maintenance, and content changes, unless otherwise indicated on service order form, and payment of such fees will be due within thirty (30) days of the date of each invoice, unless otherwise stated.
  2. Late Payment. Client’s failure to pay any fees when due shall be considered a material breach of this Agreement, and Local Owl, LLC may, at its sole discretion, do any or all of the following as a result of any such breach: (i) assess late charges of one and one-half (1.5%) of the monthly amount due per month or the maximum allowable under applicable law, (ii) suspend performance of the services, and terminate the Agreement without penalty; (iii) require future payments hereunder to be made in advance of Services being rendered by Local Owl, LLC; (iv) in an effort to effectively contact Client for the collection of any past due amounts owed by Client, and where Client has been unreachable or non-responsive to either phone calls, emails, faxed or texted electronic messages or any other forms of communication by Local Owl, LLC, a notice of non-payment and pending service termination may be placed on the home page or any other page(s) of the Client website as a measure of procuring an adequate and timely response from Client for collection of past due payments. Local Owl, LLC may also, at its sole discretion, choose to temporarily or permanently un-publish, delete, remove, or otherwise make unavailable, the website of Client until all payments due have been received in full by Local Owl, LLC.  Any suspension or termination of services will not relieve client from any obligations to pay any and all past due fees plus any levied late charges or fee, and in event of collection enforcement, client shall be liable for any costs associated with such collection efforts, including, but not limited to, legal costs, attorneys’ fees, court costs, and collection agency fees.
  3. Taxes. Client shall pay or reimburse Local Owl, LLC  for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated by such jurisdictions, which are levied or imposed by reason of the performance by Local Owl, LLC under this Agreement; excluding, however, income taxes on profits which may be levied against Local Owl, LLC.

8 Warranties

  1. Client. Client represents and warrants that: (a) Client has the power and authority to enter into and fully perform its obligations under this Agreement and to grant the rights granted in this Agreement; (b) The content, material, messages and data transmitted or made available through the services (including all Client Content) do not and shall not contain any material that is inaccurate or that violates any applicable law, rule or regulation (including, without limitation, export laws) or that infringes upon any common law or statutory right of any person or entity, including, without limitation, any proprietary, contract, moral, privacy or publicity right, copyright, patent, trademark, trade secret, or any other third party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the website; (c) The content, material, messages and data transmitted or made available through the services (including Client Content) do not and shall not contain any material that, in Local Owl, LLC’s good faith judgment, is obscene, threatening, malicious, defamatory, libelous, slanderous, pornographic, racist, or which otherwise could expose Local Owl, LLC to civil or criminal liability; (d) Client has obtained any and all authorization(s) necessary for hypertext links from the website to other third party Web sites; and (e) Client will not use the services to send unsolicited commercial e-mail, or engage in any other offensive or harassing conduct, or conduct that unreasonably interferes with Local Owl, LLC’s ability to manage its network facilities or provide similar services to other customers. In addition to any other remedy set forth in this Agreement, Local Owl, LLC reserves the right to immediately remove from the website any material which violates any of the above warranties and/or to immediately suspend or disable any services necessary to remedy any violation or potential violation of the above warranties.
  2. Local Owl, LLC. Local Owl, LLC represents and warrants that (a) Local Owl, LLC has the legal right and authority to provide the Hosting Services; (b) the Local Owl, LLC equipment does not infringe upon any copyright, patent, trademark, trade secret, or any other intellectual property right of any third party.
  3. No Other Warranty. OTHER THAN THE EXPRESS WARRANTIES CONTAINED IN SECTION 7.2, ANY EQUIPMENT PROVIDED (INCLUDING, WITHOUT LIMITATION, THE LOCAL OWL, LLC EQUIPMENT) AND ALL SERVICES PERFORMED PURSUANT TO THIS AGREEMENT ARE PROVIDED AND PERFORMED ON AN “AS IS” BASIS, AND CLIENT’S USE OF THE SERVICES IS AT ITS OWN RISK. LOCAL OWL, LLC DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LOCAL OWL, LLC SPECIFICALLY DOES NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.

9 Limitation of Liability and/or Damages. LOCAL OWL, LLC’S SOLE LIABILITY TO CLIENT FOR ANY LOSS, LIABILITY OR DAMAGE, INCLUDING ATTORNEY’S FEES, FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY EXHIBIT OF THE SERVICES, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO CLIENT’S ACTUAL DIRECT OUT- OF-POCKET EXPENSES WHICH ARE REASONABLY INCURRED BY CLIENT AND SHALL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID TO LOCAL OWL, LLC BY CLIENT UNDER THIS AGREEMENT DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM MAY HAVE OCCURRED. IN NO EVENT SHALL LOCAL OWL, LLC BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR LOST PROFITS, LOST DATA, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF THE BASIS OF THE CLAIM.

10  Indemnification. Each party (the “Indemnifying Party”) agrees to indemnify, defend and forever hold harmless the other, and any of its parent and affiliated companies, and the present, former and future officers, members, shareholders, directors, employees, representatives, attorneys, insurers and agents of any of these, and their successors, heirs and assigns (each, an “Indemnified Party”) from and against any and all losses liabilities, claims, costs, damages and expenses (including reasonable attorneys’ fees, disbursements and administrative or court costs) that (i) arise directly or indirectly out of any breach or alleged breach of its representations and warranties under this Agreement, or (ii) are the result of its willful misconduct. The indemnified party shall promptly provide the indemnifying party with written notice of any claim which it believes falls within the scope of this paragraph and shall cooperate with indemnifying party in the investigation and defense of the same. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim and that any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which shall not be unreasonably withheld.

11 Force Majeure. Neither party shall be deemed in default or otherwise liable under this Agreement due to its inability to perform its obligations by reason of any fire, earthquake, flood, snowstorm, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default hereunder), or any failure or delay of any transportation, power, or communications system or any other or similar cause beyond that party’s reasonable control.

12 Term, Termination and Renewal. This Agreement shall be effective as of the effective date of the electronic submission of the online signup form and agreement found at www.localowl.digital and shall remain in effect for an indefinite period from date that the online signup form and agreement was submitted (the “Initial Term”), or as described on the service order form (if one was used by the parties) unless earlier terminated as otherwise provided in this Agreement. This Agreement can be terminated at any time by either Local Owl, LLC or Client with a written notice of termination at least thirty (30) days prior to the expiration of the initial term or the then-current renewal term. Either party may terminate this Agreement if a bankruptcy proceeding is instituted against the other party which is not dismissed within ninety (90) days, or results in an adjudication of bankruptcy, or the other party materially breaches any of its representations, warranties or obligations under this Agreement, and such breach is not cured within fourteen (14) days of receipt of notice specifying the breach. Upon any termination of this Agreement, Client shall pay all unpaid and outstanding fees through the effective date of termination of this Agreement, provided that, if Client terminates the Agreement in a manner other than that which is described in this paragraph, Client shall also pay to Local Owl, LLC an amount equal to all unpaid charges for the remainder of the then current initial or renewal term of this Agreement. The obligations of the parties under this Agreement that by their nature would continue beyond expiration, termination or cancellation of this Agreement including, without limitation, Articles 6, 7, 8, 9, 12 and 13, shall survive any such expiration, termination or cancellation.

13 Amendment. Local Owl, LLC may modify this Agreement at any time in its sole discretion. Any modification is effective immediately upon either transmission by e-mail to the Client, or by postal mail. If any modification to this Agreement is unacceptable to the Client, they may, as their own discretion, immediately terminate the Agreement and all services rendered by Local Owl, LLC, however, any such voluntary termination of services by Client shall not relieve Client of any and all payments, fees or charges due to Local Owl, LLC. Local Owl, LLC will invoice Client for pro-rated services as of that date, and said invoice will be due in full by Client no later than 15 calendar days.

14 Notice. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand or overnight delivery, upon receipt thereof, (ii) if by mail, two (2) days after a properly addressed piece is deposited in the United States mail, postage pre-paid, certified mail, return receipt requested, or (iii) if by facsimile transmission, upon electronic confirmation thereof, (iv) if by e-mail, to the last known e-mail address. All notices shall be addressed as provided below after the signatures of the parties, or such other address as either party may in the future, consistent with this Section, specify in writing to the other.

15 Miscellaneous. This Agreement, any Development or Hosting Proposal, or any Ongoing Consulting Agreement or services referencing this Agreement shall constitute the entire Agreement between Client and Local Owl, LLC with respect to the subject matter hereof and there are no representations, understandings or agreements that are not fully expressed in this Agreement. In the event of a conflict between the terms of any conditions, terms or clauses contained in this Agreement, unless expressly stated otherwise herein, this Agreement shall control. Local Owl, LLC may use the name of and identify Client as a Local Owl, LLC client, in advertising, publicity, or similar materials distributed or displayed to prospective clients. Local Owl, LLC and its personnel, in performance of this Agreement, are acting as independent contractors and not employees or agents of Client. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the party against which such amendment, change, waiver, or discharge is sought to be enforced. This Agreement shall be governed by the laws of the State of Michigan  without regard to its conflict of laws or provisions, and the exclusive venue for disputes arising out of or related to Agreement shall be the appropriate state or federal court located in either the City of Plymouth, Michigan or Wayne County, Michigan. Client shall not assign, without the prior written consent of Local Owl, LLC, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder, nor shall the invalidation or challenges to any clause, term or condition herein be or have any direct or indirect effect on any other clause, terms or condition herein. Signatures, either digital or physical, on a copy of this Agreement or other documents, forms or Agreements provided pursuant to this Agreement transmitted by facsimile machine, paper or email shall be binding on the parties and have the same legal effect as original physical signatures. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. In WITNESS WHEREOF, by accepting Local Owl, LLC’s Sales Order, Proposal or Quotation, this document is hereby included by reference as being part of that Sales Order, Proposal or Quotation.