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hosting and service agreement
Once the website is configured on our end, we offer no refunds or exchanges. All sales are then final.
HOSTING AND SERVICE AGREEMENT
This Hosting Agreement (“Agreement”) is effective as of the date and with Client set forth in a purchase order or invoice for services to be provided by BluDomain (collectively the “Parties”).
In Consideration of the mutual covenants herein, Client and BluDomain hereby agree as follows:
1. Services and Template.
a. Template and Client. BluDomain has/will provide Client with a website template in accordance with a purchase order or other documents setting forth the design, style, and name of the BluDomain template. BluDomain grants Client a limited, non-exclusive, non-transferable license to use the Template for the sole purpose of marketing and providing information on the World Wide Web regarding Client’s business. The BluDomain back-end database will allow Client to log in to Client website template with a password and upload, edit, and delete images in specified galleries. Logo changes must be done by BluDomain. Client shall not change or modify their Template in any manner except changes for which the Template is designed... Client may access data on the BluDomain servers contained in their account only. With the exception of read-only access to log files, neither Client, nor any users, shall have the authority to access, read, or write data to any other location or account on the BluDomain servers. Client may not use the Template for any other purpose.
b. Ownership. U.S. copyright laws and international copyright treaties protect the Templates and BluDomain Databases. The Database is Confidential Information as hereinafter set forth are proprietary to BluDomain, and title shall remain in BluDomain. All applicable common law and statutory rights to the aforesaid including, but not limited to, rights in confidential and trade secret material, source code, object code, menus, structure and sequence, screen shots, trademarks, service marks, patents, and copyrights, shall be and will remain the property of BluDomain. Client shall have no right, title, or interest in such proprietary rights except as set forth herein.
THE TEMPLATES CONTAIN CONFIDENTIAL AND TRADE SECRET MATERIAL AND THE KNOW-HOW OF BluDomain, WHICH IS NOT READILY SUSCEPTIBLE TO REVERSE ENGINEERING, REVERSE DECOMPILING, OR DISASSEMBLING AND MAY CONTAIN PRINTED OR VISUALLY-PERCEPTIBLE MATERIALS DESCRIBING THE USE OR DESIGN OF WHICH IS PROPRIETARY TO BLUDOMAIN.
c. Passwords. Client will be provided with a password to access to the Template database which may be used by Client or any person authorized by Client with a need to know. BluDomain shall not be responsible for any damage or loss of Client resulting from un-authorized access to or use of the Template or Database.
d. Unsolicited Email. Client shall not send unsolicited bulk email via BluDomain’s servers and the website of Client shall not reference or be linked to any unsolicited email.
e. Template Modification. Any unauthorized modification of the Template shall be a material breach of this Agreement.
f. Restrictions. Except as specified in this Agreement, Client is prohibited from:
(i) Distributing, transferring possession, integrating into other programs or software, copying, lending, renting, leasing, transmitting or otherwise making copies of or use of the Template or the Database to any third party;
(ii) Modifying, adapting, or creating Derivative Works of the Template or the Database.
(iii) Disabling any password or other protective device incorporated into the Template.
(iv) Attempting in any way to obliterate or destroy the copyright notices, trademarks, service marks of BluDomain in or on the Template.
(v) Attempting in any way to obliterate or destroy the watermarks on the BluDomain Animations.
(vi) Using the Template or Database in any way past the expiration of the Term.
(vii) Making use of the BluDomain Animations in any way not specifically allowed by this Agreement.
6. Client shall not be refunded or granted an exchange of template, once the template is configured on client's server.
b. Permitted Copies. Client shall have the right to run the BluDomain Animations on Workstations of Client using the licensed CD but shall not have the right to copy the BluDomain Animations onto any storage device whether a hard dive, another CD or DVD, or any other type of magnetic, optical, tape, or other storage device.
c. Prevent Reverse Engineering. Client will use its best efforts to prevent reverse engineering, decompilation and disassembly of the Template and Database by advising Authorized Users and employees of Client of the all restrictions in this agreement, by immediately reporting a violation of the same to BluDomain, and by halting any reverse engineering, decompilation and disassembly of the BluDomain Animations of which Client has actual knowledge and control.
d. Hosting. BluDomain shall provide Client with website hosting services for use of the Template consistent with the quality standard in the industry.
2. Term. The term of this Agreement is set forth in the invoice submitted to Client and shall automatically renew for a like term unless either Party provides notice to the other of non-renewal at least 30 days prior to the end of the then existing term.
3. Service Terms and Obligations
a. Availability of Services. Subject to the terms and conditions of this Agreement, BluDomain shall use its best efforts to provide the Services on a hardware system providing storage, connectivity, and data access (the “System”). The Services and the System may, from time to time be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which BluDomain may undertake; or (iii) causes beyond the control of BluDomain or which are not reasonably foreseeable by BluDomain, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). BluDomain shall provide notice of any scheduled Downtime and will use its best efforts to perform necessary periodic maintenance at reasonable times giving consideration to the needs of all Parties. In the event of any Downtime, Client shall not be entitled to a reduction of any payments due and payable to BluDomain for such period.
b. Storage and Security. In order to ensure the security, confidentiality, and integrity of the System and information transmitted through or stored on the System BluDomain shall provide firewall protection providing reasonable protection from network attack and other malicious harmful or disabling data, work, code or program consistent with the standard in the industry.
4. Hosting and Domain Payment Terms
a. Payment. Client shall pay BluDomain on an annual basis for the Services in accordance with the purchase order or similar oral or written documentation initiating the Service:
b. Due Date. All payments shall be due and payable within thirty (30) calendar days of the date of the invoice.
c. Late Charge. In the event that any payment is not received by BluDomain within five (5) calendar days of the due date, Client shall pay BluDomain a late fee equal 5% of the payment then due. In addition thereto, all sums due hereunder shall bear interest at the rate of 1.5% per month commencing on the sixth day after the due date. The assessment of the aforesaid shall not be a waiver of the default.
d. Disputed Amounts. In the event Client disputes any amount charged, Client shall pay all sum due under the invoice within said time that are not in dispute and the amount in dispute will not be due and payable until the Parties resolve the dispute.
e. Suspension of Service.. THE FAILURE TO MAKE ANY PAYMENT ON OR BEFORE THE DATE DUE SHALL BE A MATERIAL BREACH OF THIS AGREEMENT. If the billing amount is not paid when due, the Services may be terminated without notice in BluDomain’s sole discretion.
c. Taxes. Client shall be solely responsible for any taxes, duties or levies including but not limited to sales tax, use tax, or personal property taxes. Client shall indemnify and save and hold BluDomain harmless from any liability arising therefrom.
a. BluDomain Warranty Limitation. EXCEPT AS PROVIDED IN ABOVE, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RESPECTING THIS AGREEMENT OR THE SERVICES. UNDER NO CIRCUMSTANCES WILL BLUDOMAIN, BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES OR LOSSES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLIENT'S CLAIMS (INCLUDING CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY, COMPUTERS OR INTERRUPTION IN THE USE OR AVAILABILITY OF DATA, STOPPAGE OF WORK OR OTHER IMPAIRMENT OF ASSETS) ARISING OUT OF BREACH OR FAILURE OF WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL BLUDOMAIN’S AGGREGATE LIABILITY EXCEED THE FEE THAT CLIENT ACTUALLY PAID, OR WAS REQUIRED TO PAY UNDER THE TERMS OF THIS AGREEMENT, TO BLUDOMAIN FOR THE SERVICE.
b. Client Warranty. Client represents and warrants to BluDomain that Client use of the system shall not contain any content, materials, data, or reference that actually or potentially violates any applicable law or regulation, including but not limited to copyright and trademark laws and regulations, or infringes on any personal right, including but not limited to the right of privacy, or violates and Spam or virus laws;
6. Indemnification Client shall indemnify, hold harmless and defend BluDomain and its directors, officers, employees and agents from and against any action, claim, demand, dispute, or liability, including reasonable attorney’s fees and costs, arising from or relating to any breach or potential breach of the terms of this Agreement including but not limited to a breach of the warranties set forth above.
In the event of default by Client, BluDomain shall have the option, without further notice to Client or further demand for performance, to:
a. Website Posting. Post on Client’s website that the account has been deactivated due to a breach of agreement including, but not limited to, non payment.
b. Removal. Remove Client’s website from the server.
c. Individual Obligation. Make demand and/or institute suit against Client to collect each monthly or other obligation or other sum as it becomes due or enforce any other obligations under this Agreement; and/or
d. Acceleration. At the option of BluDomain, with or without terminating this Agreement, accelerate all future payments due under this Agreement and Client shall be liable for the balance of the payments until the expiration of the then existing term of this Agreement which shall then become immediately due less a discount for present day value of such payments based upon a 2% per annum discount for present day value; and/or
e. Injunction. In addition to any remedies at law or in equity, BluDomain shall have a right to injunctive relief to enjoin any violation of the terms of this agreement; and/or
f. Terminate. Terminate this Agreement and make claim or sue Client for damages for breach of the past and/or future obligations of Client under this Agreement.
The enumeration of the foregoing remedies does not exclude any other remedy set forth herein or expressed or implied in law. All remedies are cumulative and shall be in addition to every other remedy now or hereafter existing by contract or at law or in equity.
8. Non-Solicitation, Hiring Of Employees
Client shall not recruit, solicit or hire employees or independent contractors of BluDomain who are currently employed or under contract or employed or under contract during the period of this Agreement unless written permission is obtained from BluDomain. This provision shall remain in effect during the term of the Services and for a period of Two (2) years after termination of this Agreement. In the event of a violation of the terms herein, the Parties agree that damages will be difficult to ascertain but nevertheless real and substantial and as a result thereof agree to liquidated damages (in addition to an actual damages that BluDomain can prove) equal to twice the average annual salary of the BluDomain employee hired by Client. The Parties agree that said liquidated damages are fair and reasonable under these circumstances. In additional thereto, the Parties agree that the solicitation or hiring of a BluDomain employee or independent contractor will cause immediate and irreparable injury to BluDomain and as a result thereof, BluDomain shall be entitled to injunctive relief.
9. Attorney's Fees.
In the event of any dispute under this Agreement, the prevailing party shall be entitled to an award of reasonable attorney’s fees and shall pay the non-defaulting party its attorney’s fees and costs, whether or not suit is actually filed.
a. Definition. “Confidential Information" shall mean any information of BluDomain disclosed, or available, to Client orally or in writing or in model form, in whatever format, in connection with this Agreement, relative to the Services or the operations of BluDomain, including, but not limited to, the BluDomain Database, and the methods and techniques of BluDomain providing the Services, whether disclosed by way of documents, oral communications, or use of the System, and all technical information regarding the operations of BluDomain
b. No Confidential Information to BluDomain. BluDomain does not wish to receive any confidential information of Client and Client shall not provide or make available to BluDomain any confidential information without the express written approval of BluDomain.
c. Disclosure or Use. Client will not disclose, or in any way use the Confidential Information of BluDomain accept in the use of the Services and System in accordance with this Agreement during the Term. If Client learns of an actual or potential unauthorized use or disclosure of BluDomain’s Confidential Information, Client will promptly notify BluDomain and, at BluDomain’s request, shall provide BluDomain with reasonable assistance to recover the Confidential Information.
11. Dispute Resolution
a. Mandatory Arbitration. Subject to the rights to injunctive or equitable judicial relief set forth herein any controversy or claim arising out of or relating to this Agreement or the existence, validity, breach or termination thereof, whether during or after its term, not resolved as aforesaid, will be finally settled by mandatory arbitration, subject to appellate rights, in accordance the Arbitration Rules of JAMS. Each party gives up any rights it might possess to have those matters litigated in a court or jury trial. The Parties shall share all costs of arbitration equally.
b. Legal Actions/Injunction. Nothing in this Agreement will prevent BluDomain from seeking interim injunctive relief or other equitable relief in any court having jurisdiction to prevent the further violation of this Agreement by Client. To the contrary, the Parties agree that certain acts, including but not limited to copyright infringement, will result in immediate and irreparable injury to BluDomain entitling the to BluDomain to seek a restraining order, injunction, or equitable relief in Colorado or Federal Court of competent jurisdiction without the necessity of arbitration or if arbitration is pending, judicial relief shall be in addition to arbitration.
c. Copyright Violation. Notwithstanding the aforesaid, any claims of copyright infringement or violation may be brought in the Federal District Court of Colorado.
a. Assignment. BluDomain may assign any of its rights, duties or obligations under this Agreement in its sole discretion. Client may not assign or otherwise transfer this Agreement or any of its rights or obligations without prior written approval. Any attempt to do so without the approval of BluDomain will be void.
b. Successors. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of all Parties if there is a permitted assignment.
c. Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
d. Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
e. Amendment. No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by both Parties, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding, arbitration, or litigation between the Parties hereto arising out of or affecting this Agreement, or the rights or obligations of the Parties hereunder, unless such waiver or modification is in writing and duly executed by both Parties.
f. Law, Venue and Jurisdiction. This Agreement shall be governed in all respects by the laws of the State of Colorado without regard to its conflict of laws provisions. Colorado shall be the exclusive state with jurisdiction over any dispute arising out of this or related agreements. Venue in any action brought with respect to any provision of this Agreement or related agreements shall be in Arapahoe, Douglas, or Denver County, Colorado and Client specifically consents to the jurisdictions of any state or federal court sitting in of the aforementioned counties.
g. Survival. The definitions herein and the respective rights and obligations of the Parties that generally continue following termination shall survive any termination or expiration hereof.
h. Force Majeure. BluDomain shall not be liable for any delay in performance due to force majeure, including strikes, accidents, unavailability of labor, Devine acts, or other delays beyond the control of BluDomain. If timely completion of any duty is prevented by any cause of force majeure, or any act of Client, then such failure or delay shall not constitute default.
i. Entire Agreement. This Agreement and purchase orders and invoices constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
j. No Reliance. Client stipulates that BluDomain has not made any representation with respect to the subject matter of this Agreement except such representations as are specifically set forth herein and has relied on its own judgment in entering into this Agreement.
k. Interpretation. The terms that are defined in this Agreement may be used in the singular or the plural, and references in the masculine shall include the feminine as the context requires. Headings are intended only for reference purposes.