1. WEB SITE DESIGN AND DEVELOPMENT

 

1. Project Outline. Infinity and Client have agreed to a written Project Outline, a copy of which is attached to this Agreement (the “Project Outline”), itemizing the web design services to be provided by Infinity to the Client. Infinity will make reasonable efforts to design and layout the Client’s web site as close as possible to the specifications set forth in the Project Outline, subject to reasonable variance. The Project Outline and its exhibits, if any, provide the complete description of the web design services to be provided by Infinity. The Project Outline is subject to the terms of service set forth in this Agreement. In the event of any conflict between the Project Outline and the terms of this Agreement, the terms of this Agreement shall control.
2. Project Manager. Client shall designate one employee who shall be Client’s single point of contact with Infinity, and who shall have the power to act as Client’s project manager in order to make ongoing decisions under this Agreement which are binding upon Client. The parties recognize that Client’s participation in all phases of the development of the web site shall be essential.  As such, the Project Manager shall, in good faith, work with Infinity to complete the project on schedule.

1. Infinity shall create the code underlying Client’s web site in accordance with the Project Outline. During the coding and testing process, Infinity or Client may propose modifications to Client’s web site in writing. Any proposed modification shall be confirmed in writing by both parties prior to the performance of any work by Infinity on such proposed modification. Client understands proposed modifications may require additional development time and cost outside the original Agreement. Any such delay shall not result in the imposition of any delays or set-offs of payments due, damages, penalties or any other liability against Infinity during such additional development period.
2. Completion Schedule- Graphic Layout.

Delivery.  Infinity shall design a graphic layout and present same to Client in a digital format within fifteen (15) business days after Client’s first scheduled payment is received by Infinity and after all graphical information is delivered to Infinity from Client.

Feedback and Final Acceptance.  Upon delivery of the graphic layout, Client shall provide feedback/suggestions or a final acceptance to Infinity, in writing, within fifteen (15) business days.  Feedback and suggestions will be reflected in the Beta Version. If Client fails to provide such written feedback/suggestions or final acceptance within fifteen (15) business days following delivery, the graphic layout shall be deemed accepted. CLIENT EXPRESSLY WAIVES ANY RIGHT TO REVOKE ACCEPTANCE ONCE MADE.

1. Completion Schedule- Beta Version.

Delivery. Infinity shall host the Beta Version of Client’s web site for Client’s testing over the Internet within twenty (20) business days after Client’s final acceptance of the Graphic Layout.

Beta Testing and Content. Client shall perform complete testing of all aspects of the Beta Version within ten (10) business days after Infinity’s provision of the Beta Version.  All “Bugs” (an error in a web site that causes repeated and repeatable malfunctions) shall be reported to Infinity in writing at this time. Client shall also enter all appropriate content into the web site via softcopy formats such as MS Word or MS Excel during this period. Infinity shall not be responsible for developing any content for Client’s web site.

 

Final Acceptance. Upon delivery of the Beta Version, Client shall provide feedback/suggestions or a final acceptance to Infinity, in writing, within twenty (20) business days. If Client fails to provide such written feedback/suggestions or final acceptance within twenty (20) business days following delivery, the Beta Version shall be deemed accepted. CLIENT EXPRESSLY WAIVES ANY RIGHT TO REVOKE ACCEPTANCE ONCE MADE.

Site Launch. Infinity shall deliver Client’s completed web site within five (5) business days after Client’s Final Acceptance of the Beta Version by posting Client’s web site to Infinity’s Internet server.

1. Modifications After Web Site Delivery.

Time. Infinity shall make necessary and reasonable modifications to Client’s web site for twenty (20) business days following delivery of same as long as those modifications are contained within the Project Outline. Client shall submit its desired modifications, in writing, to Infinity and the parties shall sign the written modification prior to the performance of any modification work by Infinity.

Deviations from Final Specifications. Where Client’s desired post-delivery modifications are to cause its web site to deviate from written final specifications (“Improvements”), Infinity shall be paid by Client at the greater of (i) Infinity’s standard rates then in effect, or (ii) $100.00/hour for development time.  The parties agree that Client is not obligated to engage the services of Infinity for Improvements, and that Infinity is not obligated to perform work on Improvements.

Infinity Not Liable for Caching.  Client expressly recognizes that some Internet service providers may continue to cache unmodified versions of Client’s web site after modifications or Improvements are made, and Client expressly agrees to indemnify and hold Infinity harmless for any damages or causes of action resulting from same.

1. Training and Customer Service.

Scheduled Training.  Subject to the terms of this Agreement and for so long as Client is not in default, Infinity shall provide Client with scheduled training sessions, at Infinity’s discretion, to be conducted via the phone and Internet to inform, teach and familiarize Client with site maintenance techniques and procedures.  Training sessions shall be conducted during the Beta Version of the site development as a part of Client content entry.  Infinity shall be available during normal business hours to assist Client in content entry during the Beta Version. Client may request additional on-site training at additional cost.  Client will be responsible for all travel and other expenses related to this training.

 

Customer Service.  Subject to the terms of this Agreement and for so long as Client is not in default, Infinity shall provide reasonable customer service and assistance during the web site development process and following delivery of the web site via mail, email, instant messenger and phone during normal Infinity business hours.  INFINITY SHALL BE NOT RESPONIBLE FOR CONTENT ENTRY OR MAINTAINING CONTENT ON CLIENT”S WEB SITE.

 

1. Design Credit. Infinity shall be allowed to place the Infinity logo and hyperlink on the bottom of Client’s web site establishing design and development credit.

 

2. WEBSITE HOSTING

 

1. Web Hosting Services. Infinity shall provide web hosting of Client’s web site consistent with industry standards. The hosting package includes:

 

• 250 megabytes of online site storage
• Reporting of site usage statistics
• 10 Gigabytes Maximum Monthly Data Transmission
• Site submission to major search engines at Client’s cost
• Personal Account Manager assigned to this project
• Code maintenance
• Secure Socket Layer
• One Domain Name entry

 

1. Infinity’s Acceptable Use Policy. Without limiting any other provisions of this Agreement in any way, Client agrees to comply with all policies Infinity institutes regarding its servers as well as all appropriate rules for other networks or services connected directly or indirectly to Infinity, including the Acceptable Use Policy listed in this Section 3B, as well as any policies which are or may be established for USENET and the Internet as a whole. Infinity reserves the right to change its policies at any time for any reason in its sole discretion.   Client agrees to the following conditions and restrictions regarding Client’s web site, and agrees that any violation of the following subject Client to (i) termination of this Agreement, (ii) forfeiture of monies already paid, and (iii) damages:

 

• The web site and related electronic services may be used for legal purposes only and shall not violate applicable international, federal, state and/or local laws.
• Engaging, advertising, or participating in the sending of unsolicited e-mail is explicitly prohibited on Infinity’s servers. Infinity will not be the source, intermediary, or destination address involved in the transmission of SPAM, flames or mail‑bombs. Client agrees not to restrict or inhibit any other user from using and enjoying the Internet or post any material that causes an overload of Infinity’s systems or results in reasonable complaints from other Clients or third parties.
• Client agrees not to transmit, distribute, store, advertise, link to, or make available any images, language, or ideas containing sexually explicit or implicit subject matter. Client also agrees not to post or transmit any unlawful, threatening, abusive, libelous, defamatory, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law, including without limitation the U.S. export control laws and regulations.  Infinity reserves the right, in it its sole discretion, to make a final determination in any dispute involving any objectionable material.
• Infinity’s Services are provided for Client and authorized end users only. No other subhosting or resale of any services is permitted without the express written consent of Infinity. Client shall not attempt to gain unauthorized access to Infinity systems or accounts, disrupt service or network connectivity, misuse Infinity facilities or create fraudulent accounts.
• Client agrees not to post or transmit any information or software which contains a virus or other harmful component.
• Any background running programs must first be approved in writing by Infinity and may incur additional charges.
• Unless otherwise provided, Infinity may deny Client access to all or part of the web site, without notice, if Client engages in any conduct or activities that Infinity, in its sole discretion, believes violates any of this Agreement or Infinity’s Acceptable Use Policy. Further, Infinity has no obligation to monitor the web site.  However, Client agrees that Infinity has the right to monitor the web site from time to time and to disclose any information as necessary to satisfy any law, regulation or other governmental request, to operate the web site properly.  Infinity will not intentionally monitor or disclose any private e-mail messages, except as stated above.  Infinity reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of the terms of service.

 

3. INFINITY SITE MANAGER™ LICENSE

 

1. The Software (as defined below) is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold.

 

1. With respect to Infinity Site Management System (“ISM”) and any other software provided to Client in connection with the web site and Infinity’s services (collectively, the “Software”), Infinity grants Client a personal, non-exclusive, non-transferable license for the duration of the Term of the Agreement, to use the Software in object code form only, on hardware provided by Infinity or other hardware acceptable to Infinity, for the sole purpose of enabling Client to use the web site and maintaining and updating Client’s web site throughout the duration of this Agreement. Client acknowledges and agrees that the Software is copyrighted, that title to such Software remains with Infinity and its suppliers, if any, and that the content and design of such Software are valuable trade secrets.  Client further acknowledges and agrees that ISM shall remain sole property of Infinity upon the termination of this Agreement for any reason.  The Client agrees not to (i) disclose or make available to third parties any portion of such Software without Infinity’s advance written permission, (ii) further copy or duplicate such Software except as expressly authorized by Infinity, (iii) reverse engineer, decompile or disassemble such Software, (iv) make derivative works from such Software, or (v) modify such Software.

 

1. Without prejudice to any other rights Infinity may have, Infinity may terminate the license granted herein if Client fails to comply with the terms and conditions of this Agreement.

 

4. INFINITY REPRESENTATIONS AND WARRANTIES

 

Without limiting the other provisions of this Agreement in any way, Infinity represents and warrants that:

 

1. General Warranty.  Infinity shall use reasonable efforts to maintain its overall network quality consistent with industry standards, government regulations and sound business practices. Infinity is the sole creator of any web sites designed by Infinity, except for those graphics and data supplied by Client, and neither Infinity’s work nor entering into this Agreement will impair or violate any third party intellectual property rights.

 

1. Web Site Storage and Internet Link. Infinity shall store Client’s web site on Infinity’s Internet server. The parties expressly recognize that Internet servers and links are susceptible to crashes and down time. Infinity agrees that it shall use reasonable efforts to maintain a consistent link with the Internet, but Infinity cannot and does not warrant that it shall maintain a continuous and uninterrupted link.

 

8. Web Site Shall Function with Standard Browsers. Infinity is creating Client’s web site to be viewable by both Microsoft Internet Explorer 8.0 and Firefox 3. Client acknowledges that some advanced techniques on the Internet may require a more recent browser version and brand or plug-in, and that as new browser versions of Internet Explorer and Firefox are developed, the new browser versions may not be backward compatible. In the absence of a maintenance agreement, time spent to redesign a site for compatibility due to the introduction of a new browser version will be separately negotiated and be in addition to the base price of this Agreement

 

1. Average Response Time. Monthly average response times shall be less than 1.5 seconds for at least 92% of all user requests. Response time shall measure server response time only (not network transmission time).

 

99. Average Uptime. Monthly average uptime shall be 99.0%. Uptime does not include any scheduled downtimes for periodic maintenance.  Maintenance periods are scheduled only when necessary and shall be scheduled with notice to the Client.  Infinity reserves the right to conduct emergency maintenance with notification to the Client at least eight (8) hours in advance.  All scheduled maintenance shall be performed during off-peak hours.

 

1. System Outage. System outages (any unscheduled interruption for greater than 12 continuous minutes in the provision of the web site during which time users are unable to access or use the web site) will be deemed to have occurred only if a service becomes adversely affected or otherwise unusable to Client as a result of failure of Infinity’s network facilities, equipment or personnel used to provide the service in question, and only where the interruption is not the result of: (a) the negligence or acts of Client or its agents or users; (b) the failure or malfunction of non-Infinity equipment or systems; (c) circumstances or causes beyond the control of Infinity; or (d) a service interruption caused by scheduled (at least 72 hours notice) service maintenance.  Infinity will grant a credit allowance for any System Outage calculated and credited against the monthly web hosting fee in fifteen (15) minute increments. For purposes of canceling or terminating the Agreement for an Infinity service interruption, such service interruption must equal either $1000 in cumulative service credits of monthly web hosting fees during any continuous 12-month period or a single continuous outage of 8 hours or more.  THE FOREGOING STATES CLIENT’S SOLE REMEDY FOR SERVICE INTERRUPTION UNDER THE AGREEMENT.

 

1. Security and Privacy. Client acknowledges that it is impossible to maintain flawless Internet security, but Infinity shall take reasonable steps to prevent security breaches in Infinity’s server interaction with Client and security breaches in Infinity’s server interaction with resources or users outside of any firewall that may be built into Infinity’s server. However, Client is solely responsible for any password protected areas which are accessible by the Client and representatives of the Client. These areas shall include, but may not be limited to, the Infinity Site Manager, email accounts and ftp accounts. Client will select the password(s) for these areas and is responsible for advising Infinity of any Client employee changes so as to protect those areas. Client hereby indemnifies and holds Infinity harmless for any unauthorized access or harm to Client’s web site directly or indirectly contemplated by this Section 7G.

 

 

5. DISCLAIMERS

 

1. Delays/Defaults Beyond the Control of Infinity. Infinity shall not be liable for delays or defaults in furnishing goods or services hereunder this Agreement if such delays or defaults are due to causes beyond Infinity’s reasonable control, including but not limited to: Acts of God or of a public enemy; Acts of the United States or any state or political subdivision thereof; Fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes; Embargoes, epidemics or quarantine restrictions; Shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind; Delays of supplier or delay of transportation for any reason; Causes beyond the control of Infinity in furnishing items or services including, but not limited to, breakdown or failure of machinery or equipment, or delay in Client reporting problems or furnishing information or materials; Client’s failure to provide feedback, materials, logos or any other vital information that inhibits Infinity’s ability to continue work; or Client’s failure to adhere to the schedule outlined in this Agreement. Infinity shall promptly advise Client of the commencement and expected duration of any of the foregoing events. If such circumstance is expected to or does in fact last longer than three (3) months, either party is entitled to terminate this Agreement by giving written notice to the other party, and neither party may submit any claims in connection with such termination. Acceptance of delivery of goods or services shall constitute a waiver and release of Infinity by Client for any claim for damages, setoff, discount or other liability on account of delay.

 

1. Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, INFINITY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY INFINITY SERVICES, RELATED PRODUCTS, EQUIPMENT, SOFTWARE OR DOCUMENTATION. INFINITY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.

 

1. Disclaimer of Certain Damages. NEITHER INFINITY NOR CLIENT SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS OR GOODWILL, ARISING IN CONNECTION WITH OR IN ANY WAY RELATED DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, UNDER ANY THEORY OF TORT, CONTRACT, INDEMNITY, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

 

1. Limitation of Liability. THE TOTAL LIABILITY OF INFINITY TO CLIENT IN CONNECTION WITH THIS AGREEMENT, FOR ANY AND ALL CAUSES OF ACTION AND CLAIMS SHALL BE LIMITED TO THE LESSER OF (I) DIRECT DAMAGES PROVEN BY CLIENT, OR (II)THE AMOUNT PAID BY CLIENT TO INFINITY UNDER THIS AGREEMENT FOR THE ONE-MONTH PERIOD PRIOR TO THE ACCRUAL OF THE MOST RECENT CAUSE OF ACTION.

 

6. CLIENT INDEMNIFICATION

 

Client hereby unconditionally agrees to hold harmless and indemnify Infinity, its affiliates, directors, officers, employees, agents, general and limited partners and directors, officers, employees and agents of such partners, from and against any and all claims, demands, losses, damages, expenses (including attorney fees, court costs and any other costs related to any legal proceeding and any appeal), and liabilities of any kind or nature whatsoever, whether in contract, tort, or otherwise, resulting from any claim (including, but not limited to, personal injury, death, or property damage) actually or allegedly arising directly or indirectly out of or in connection with (i) any alleged breach or violation by Client of any provision of this Agreement, and/or (ii) any third-party claims arising out of this Agreement.

 

7. INTELLECTUAL PROPERTY OWNERSHIP

 

1. Infinity owns all right, title and interest in and to Infinity’s trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, and know‑how related to the design, function, and provisions of the web site, any services provided by Infinity, and in and to the related hardware and software systems.

 

1. Client shall be deemed to be the owner of Client’s domain name, its trade names, trademarks, service marks and any graphics or data provided by Client that are incorporated into the web site.

 

8. CONFIDENTIALITY, ETC.

 

1. Confidentiality. The parties recognize that each shall come into possession of information that comprises valuable trade secrets and other confidential information (“Confidential Information”), which is exclusively owned by the conveying party. For the purposes of this Agreement, “Confidential Information” means non-public information about the disclosing party’s business or activities that is proprietary and confidential, which shall include, without limitation, all business, financial, technical and other information of a party marked or designated “confidential” or by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential. Confidential Information includes not only written or other tangible information, but also information transferred orally, visually, electronically or by any other means.  Confidential Information will not include information that (a) is in or enters the public domain without breach of this Agreement, (b) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation or (c) the receiving party knew prior to receiving such information from the disclosing party or develops independently. The parties expressly recognize that Confidential Information is being conveyed to them under conditions of confidentiality, and agree that they shall not disclose Confidential Information to any third party during the term of this Agreement, and for a period of two (2) years following the termination or expiration of this Agreement. The parties may, however, disclose Confidential Information (i) pursuant to court order, and (ii) to their employees who need to know Confidential Information in order to assure the parties’ compliance with the other terms and conditions of this Agreement.

 

 

1. Employees. The parties recognize that the other’s employees are uniquely qualified for their jobs, and that the identity of both parties’ employees is Confidential Information. Therefore, the parties agree that, during the term of this Agreement and for a period of two (2) years following the termination or expiration of this Agreement, neither party shall solicit the employment of, nor employ, any of the other party’s employees without the express written consent of the other party.

 

9. MISCELLANEOUS PROVISIONS

 

1. Governing Law and Dispute Resolution. This Agreement will be interpreted, construed and governed by and in accordance with the laws and decisions of the State of Texas as applied to agreements entered into and to be fully performed in the State of Texas (without regard for the principles of conflicts of laws). Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled, if possible, through good faith negotiations between the parties. If such efforts are unsuccessful, the controversy or claim shall be settled by arbitration administered by the American Arbitration Association and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All proceedings shall be conducted on the basis of (i) documents and other materials, and/or (ii) telephonic hearings. No in-person hearings shall be held. Each party shall bear its own arbitration costs and expenses; provided, however, that the arbitrators may modify the allocation of fees, costs, and expenses in the award in those cases where fairness dictates other than an equal allocation between the parties. The award shall be final and binding on the parties, and judgment on the award may be entered in and enforced by any court of competent jurisdiction. Any claim brought pursuant to this Section 11A must be brought within 45 days from the date on which the claiming party knew or reasonably should have known the facts upon which the claim is based, or such claim shall be deemed forever waived.
2. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties hereto and cancels, terminates and supersedes any prior agreement or understanding relating to the subject matter hereof. There are no representations, promises, agreements, warranties, covenants, or undertakings other than those contained herein.

 

1. Attachments and Recitals. The Attachments referred to in this Agreement are, by this reference, incorporated herein and made a part hereof. The recitals appearing at the beginning of this Agreement are hereby incorporated into the terms and conditions of this Agreement in full by this reference.

 

1. Nothing contained in this Agreement shall be construed to place the parties in the relationship of partners, joint venturers, or agents, and the parties shall have no power to obligate or bind each other in any manner whatsoever.

 

1. Successors and Assigns. This Agreement and its benefits, obligations and other provisions is applicable to, binding upon, and shall inure to the benefit of the parties and their respective successors, successors in interest and assigns.

 

1. The terms and conditions of this Agreement that, by their sense and context, are intended to survive the performance thereof by the parties hereto shall survive the completion of performance and termination of this Agreement including, without limitation, the making of all payments due hereunder.

 

1. Reparability of Provisions. The determination that any provision of this Agreement is invalid or unenforceable shall not invalidate this Agreement, all of said provisions having been inserted conditionally on their being considered legally valid, and this Agreement shall be construed and performed in all respects as if such invalid or unenforceable provision(s) had been omitted insofar as the primary purpose of the Agreement is not impeded.

 

1. Any waiver by Infinity of a breach of any provision of this Agreement shall not operate, or be construed to be, a waiver of any other breach of such provision or of any breach of any other provision herein.  Failure by Infinity to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive Infinity of the right thereafter to insist upon strict adherence to that term or any other term herein.  Any waiver must be in writing signed by Infinity.

 

1. Either party may assign its rights and/or obligations hereunder; (a) to any subsidiary, parent company or affiliate; (b) pursuant to any financing, merger or reorganization, or (c) pursuant to any sale or transfer of all or substantially all of the assets of the assigning party. Otherwise, neither party may assign its rights and/or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed. The below-signed parties shall be deemed to be the responsible parties under this Agreement until such time as a receiving party or assignee has given written acknowledgement of its intent to be bound by the terms and conditions of this Agreement.

 

10. NOTICES

 

All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be given by:  (i) hand delivery; (ii) first-class registered or certified mail with postage prepaid; (iii) overnight receipted courier service; (iv) telephonically confirmed facsimile transmission, or (v) electronic mail, which notice is addressed to the party at the address set forth on the signature page of this Agreement. Notices given in accordance with this Section shall be effective upon receipt or when receipt is refused.  The addresses set forth may be changed by appropriate written notice to the other party.