BIGWHEEL HOSTING AND SERVICES AGREEMENT

 

This Hosting Agreement (“Agreement”) is between the entity or individual identified on the signature block of this Agreement (“Customer”) and DMGx, LLC DBA BigWheel, a Tennessee limited liability company with its principal place of business at 920 Volunteer Landing Lane, Suite 201, Knoxville, TN, 37915 (“DMGx”).

 

Whereas, DMGx will provide and has provided professional services such as the management, administration, and servicing of third party Managed Hosting Services on Customer’s behalf (“Services”).

 

Whereas, DMGx may use a third party provider (“Provider”) to provide hosting services for Customer’s website (“Website”).

 

NOW, THEREFORE, AND IN CONSIDERATION of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1. New Terms. FROM TIME TO TIME DMGX WILL UPDATE THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND CUSTOMER MAY ACCEPT THE NEW TERMS AND CONDITIONS TO CONTINUE USING THE WEBSITE AND SERVICES. IF CUSTOMER ELECTS NOT TO ACCEPT THE NEW TERMS AND CONDITIONS, THEN DMGX MAY, IN ITS SOLE DISCRETION, IMMEDIATELY TERMINATE THIS AGREEMENT, DISCONTINUE PROVIDING THE WEBSITE AND SERVICES, AND REFUND TO CUSTOMER THE AMOUNT OF MONEY THAT CUSTOMER HAS PREPAID FOR SERVICES THAT CUSTOMER HAS NOT RECEIVED ON THE DATE CUSTOMER ELECTS NOT TO ACCEPT THE NEW TERMS AND CONDITIONS.

 

2. Hosting Services. Beginning on the Effective Date and continuing for the Term as specified in Section 11, DMGx agrees to provide Customer with the DMGx Services identified on Schedule A or alternatively on the invoice received by Customer from DMGx (the “Invoice”). In the event the list of Services or fees is inconsistent between Schedule A and the Invoice the services or fees on the Invoices controls.

 

3. Agreement Coverage. This Agreement contains the terms and conditions which apply to any Services or Website previously purchased by Customer from DMGx. Customer agrees that this Agreement covers any dispute related to the Services or Website even if such dispute arose prior to this Agreement.

 

4. Payment for Services. Customer shall pay DMGx all Provider Fees and DMGx Fees, as each is specified on Schedule A or on the Invoice, each month plus any additional fees charged by Provider to DMGx (“Additional Provider Fees”). (Provider Fees, DMGx Fees, and Additional Provider Fees are collectively referred to as “Fees”). In the event DMGx provides more than the included number of technical support hours, as specified on Schedule A or alternatively on the Invoice, the Customer agrees to pay for the additional technical support at the hourly rate specified on Schedule A or on the Invoice as a part of the DMGx Fees.

 

5. Payment Terms. DMGx shall invoice Customer monthly for all Fees owed under this Agreement. Customer shall pay each Invoice upon receipt. If Customer has not paid all sums due DMGx within 15 days of the date of receipt of the Invoice, a monthly finance charge equal to the lesser of (a) 1.5% per month, or (b) the highest amount permitted by law, shall accrue and be payable each month until paid in full. Customer shall be liable to DMGx for any and all costs and expenses incurred by DMGx, including without limitation attorneys’ fees and expenses, in collection of any past due amounts hereunder.

 

6. Customer Intellectual Property. Customer intends to place various content that Customer owns or has a license to (“Customer Data”) on the Website. Customer represents and warrants that all Customer Data is either owned by Customer or Customer has a valid license to use the Customer Data as specified in this Agreement. DMGx acknowledges that, as between the parties, all Customer Data shall remain the property of the Customer or its licensors. Customer acknowledges that DMGx is not responsible for Customer Data on the Website. Customer hereby grants DMGx a license to store and distribute Customer Data through the Website.

 

7. Acceptable Use. Customer agrees to abide by all local, state, federal and international laws in Customer’s use of the Website and all Services associated with the Website. Customer shall abide by all terms of use specified by the Provider as found on the Provider’s website, incorporated in this Agreement by reference (“TOU”). Customer agrees that any breach of a term or condition of the TOU is a material breach of this Agreement. Customer agrees that Customer is responsible for Customer’s users use of the website and Customer agrees to enforce the use restrictions in this Agreement with Customer’s users.

 

8. Additional Use Restrictions. Customer shall not post, transmit, e-mail, re-transmit or store material on or through the Website which, in the sole judgment of DMGx: (i) is in violation of any local, state, federal or non-United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, “Persons”) or (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of “pirated” or other software products that are not appropriately licensed for use by Customer. Customer shall be responsible for determining what laws or regulations are applicable to its use of the Services. In addition, Customer may only use the Services in a manner that, in DMGx’s sole judgment, is consistent with the purposes of such Services. If Customer is unsure of whether any contemplated use or action is permitted, please contact DMGx. By way of example, and not limitation, the following uses described below of the Services are expressly prohibited:

 

1. upload, post, e-mail or otherwise transmit any information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (collectively, “Content”) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable. Pornography and pornographic related merchandising are prohibited on the Website, including providing links to pornographic content elsewhere;

 

2. harm minors in any way;

 

3. impersonate any person or entity, including, but not limited to, a DMGx official, forum leader, guide or host, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity;

 

4. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Website;

 

5. upload, post, e-mail or otherwise transmit any Content that Customer does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements;

 

6. upload, post, e-mail or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

 

7. upload, post, e-mail or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas of the Services that are designated for such purpose;

 

8. upload, post, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

 

9. interfere with or disrupt the Website or servers or networks connected to the Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Website;

 

10. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;

 

11. “stalk” or otherwise harass another;

 

12. promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating “Crush” sites; and

 

13. effecting security breaches or disruptions of Internet communication. Security breaches include, but are not limited to, accessing data of which Customer is not an intended recipient or logging into a server or account that Customer is not expressly authorized to access.

 

9. Removal of Content. In the event content posted on the Website violates this Agreement, DMGx may remove such content, in DMGx’s sole and absolute discretion.

 

10. Spam. Spamming, the sending of unsolicited mass email from or through a Provider server or using an email address that is maintained on a Provider machine is strictly prohibited. DMGx will be the sole arbiter as to what constitutes a violation of this provision. Customer is also in violation of this provision if they engage in spamming using the service of another ISP or IPP, but reference in the spam the Website, or if Customer sells or distributes software on the Website that facilitates spamming.

 

11. Term and Termination.

 

1. Term. The term of this Agreement begins on the Effective Date and continues for the term specified in the Invoice (the “Initial Term”). Thereafter, this Agreement will automatically renew for additional one (1) month periods (each a “Renewal Term”), unless terminated as specified in this Agreement. The Initial Term and each Renewal Term are referred to as the “Term.”

 

2. Voluntary Termination. This Agreement may be terminated by either party for any reason by providing 90 calendar days written notice to the other party.

 

3. Termination for Breach. DMGx may terminate this Agreement immediately for a material breach of this Agreement by Customer upon written notice to Customer.

 

4. Effect of Termination. Upon the expiration or termination of this Agreement, (i) all amounts owing from Customer to DMGx shall be immediately due and payable, (ii) all licenses provided under this Agreement immediately terminate, and (iii) DMGx shall stop providing the Services.

 

12. Suspension of Service. In the event Customer has not paid an Invoice within 15 days of receipt of the Invoice, DMGx may, at DMGx’s sole discretion, suspend all access to the Website until all amounts owing to DMGx by Customer have been paid in full. The right to suspend access to the Website in this Section is in addition to all other rights and remedies that DMGx may have.

 

13. Confidential Information. Each party to this Agreement (each, a “Recipient”) will protect and keep confidential all non-public information (“Confidential Information”) disclosed by the other party (each, a “Discloser”), whether or not it is marked or identified as “Confidential Information” by the Discloser, and will not, except for the purposes of providing or using the Services, use or disclose any such Confidential Information. Confidential Information will include, without limitation, computer programs, code, specifications for application programming interfaces, algorithms, know-how, methodology, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, pricing and fee schedules, financial and product development plans, customer lists, information regarding distribution channels, forecasts, and strategies.

 

Upon termination or expiration of this Agreement, at Discloser’s request Recipient will return to Discloser or destroy all written materials that contain any Confidential Information. Any destruction of written materials that contains Confidential Information shall be certified to the Discloser in writing by an authorized officer of the Recipient supervising such destruction. The obligations of confidentiality will not apply to any information which: (i) is or becomes publicly available, through no fault of Recipient; or (ii) is required to be disclosed as a matter of law.

 

14. Indemnification, Liability, Warranty

 

1. Indemnification by Customer. Customer will indemnify, defend and hold harmless DMGx, and its respective officers, directors, employees, agents and affiliates from and against any and all suits, actions, claims, penalties, liabilities or obligations, including reasonable attorney’s fees and expenses (“Claims”) caused by: (i) Customer’s use of the Website, (ii) Customer Data, (iii) a breach of any provision of this Agreement, or (iv) a breach of any representation or warranty made by Customer in this Agreement. DMGx will give Customer prompt notice of each such Claim and reasonable cooperation in connection with the defense of each such Claim. Sole control of defense and settlement of those Claims where such settlement involves solely the payment of money by Customer, will reside with Customer.

 

2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DMGX BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF PROFITS, REVENUE, DATA OR USE, OR FROM INTERRUPTED COMMUNICATIONS OR DAMAGED DATA, OR FROM ANY DEFECT OR ERROR OR IN CONNECTION WITH CUSTOMER’S ACQUISITION OF SUBSTITUTE GOODS OR SERVICES OR MALFUNCTION OF THE WEBSITE OR SERVICES, OR ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY, EVEN IF DMGX OR ANY OTHER PERSON HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY TO ACHIEVE ITS INTENDED PURPOSE. In any event, DMGx’s entire liability under any provision of this Agreement or any action related to this Agreement, the Services or the Website shall be limited to the reduction or the refund of the fees paid under this Agreement in the two months prior to the cause of action that gave rise to DMGx’s liability.

 

3. Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN THE WEBSITE AND SERVICES ARE PROVIDED “AS IS”, AND DMGX AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE WEBSITE AND SERVICES (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), AS WELL AS ANY WARRANTIES THAT THE WEBSITE OR SERVICES (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR-FREE.

 

15. No Third Party Beneficiaries. This Agreement is intended for the exclusive benefit of the parties hereto and shall not be for the benefit of, and shall not create any rights in, or be enforceable by, any other individual or entity.

 

16. Independent Contractors. The parties to this Agreement are independent contractors. Nothing in this Agreement will be deemed to create any form of partnership, principal-agent relationship,

employer-employee relationship, or joint venture between the parties.

 

17. Dispute Resolution

 

1. Overall Procedure. DMGx and Customer agree that the following alternative dispute resolution procedure shall be followed with respect to any dispute arising between the parties which in any manner arises out of or relates to the subject matter of this Agreement or the conduct of the parties in the performance of this Agreement.

 

2. Negotiation

 

1. Initial Resolution Efforts. DMGx and Customer shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between senior staff members who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement.

 

2. Notice of Unresolved Dispute; Response. Any party may give the other party written notice of any dispute not resolved in the ordinary course of business. Within fifteen (15) days after delivery of the notice, the party receiving the notice shall submit to the other a written response. The notice and the response shall include:

   1. a statement of each party’s position regarding the matter in dispute and a summary of arguments in support thereof, and (2) the name and title of the person who will represent that party and any other person who will accompany that representative.

 

3. Meeting of Executives. Within twenty (20) days after delivery of the notice, the designated representatives shall meet at a mutually acceptable time and place and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information made by one party to the other shall be honored in a timely fashion.

 

4. Non-Resolution. If the matter in dispute has not been resolved within thirty (30) days after delivery of the notice, or if the parties fail to meet within thirty (30) days, either party may initiate binding arbitration proceedings as set forth in Section 23(c).

 

3. Binding Arbitration

 

1. Arbitration Procedure. In the event the parties are unable to resolve any dispute arising hereunder by negotiation as provided above, either party (the “claimant”) may give written notice to the other (hereinafter “respondent”) of its intention to arbitrate, which notice shall contain a statement setting forth the nature of the dispute, the amount involved, if any, and the remedy sought, and shall submit the appropriate documents to the Atlanta, Georgia office of the American Arbitration Association (the “AAA”) or such other arbitration service as the parties may mutually agree together with the appropriate filing fee. The AAA Commercial Arbitration Rules, as modified or revised by the provisions herein, shall govern the arbitration proceedings, which shall be held in Knoxville, Tennessee before a single arbitrator. The arbitrator shall be mutually agreed upon by the parties. If DMGx and Customer have not agreed upon a mutually acceptable arbitrator within thirty (30) days of the date of the notice of intention to arbitrate, the arbitrator shall be selected from the AAA Commercial Arbitration Panel according to AAA procedures (or the approved arbitration panel of the agreed upon arbitration service, in accordance with its rules and procedures, as applicable).

 

2. Binding Effect of Award. Any award rendered by the arbitrator pursuant to the procedure specified above shall be final and binding on the parties. Such award shall be enforceable under the Federal Arbitration Act and applicable state law. Judgment on such award may be entered by either party in any state court in Knox County, Tennessee, U.S.A., or in the Federal District Court for the Eastern District of Tennessee, Northern Division, sitting in Knoxville, Tennessee, U.S.A., which courts shall have exclusive jurisdiction over the enforcement of any arbitration award.

 

3. Cost of Arbitration. The parties shall each bear all of their respective arbitration costs and expenses and shall share equally the costs and expenses of the arbitrator. However, in the discretion of the arbitrator, the prevailing party may be awarded and allowed to recover from the other party its expenses of the arbitration proceedings, including reasonable attorney’s fees and expenses.

 

4. Bar to Litigation; Survival. The provisions hereof shall be a complete bar and defense to any suit, action or proceeding instituted in any court or before any administrative tribunal with respect to any dispute or controversy arising out of or in connection with this Agreement. In the event that DMGx or Customer commences a civil or administrative proceeding with respect to any dispute subject to arbitration under this provision, any other party to such proceeding shall be entitled to demand arbitration with respect to that dispute and shall be entitled to a permanent stay and injunction against any such civil or administrative proceeding without the necessity of posting bond or other security. The arbitration provisions hereof shall, with respect to any such dispute or controversy, survive the termination or expiration of this Agreement.

 

18. Waiver. No party will be deemed to have waived any provision hereof unless such waiver is in writing and executed by a duly authorized officer of the waiving party. No waiver by either party of any provision hereof will constitute a waiver of such provision on any other occasion.

 

19. Assignment. Neither party shall assign or otherwise transfer or purport to assign or otherwise transfer this Agreement or any of its rights or obligations hereunder or any part thereof without the prior written consent of the other party, except that DMGx may assign any of its rights or obligations to any successor-in-interest or to an entity that acquires all or substantially all of its assets, all of its equity in any form, or to an entity into which DMGx is merged; provided, however, that the entity to whom the rights and obligations of DMGx are assigned (the “Successor”) shall execute a written instrument whereby the Successor agrees to accept all of the rights and obligations of DMGx under this Agreement.

 

20. Severability. The invalidity or unenforceability, in whole or in part, of any provision, term, or condition hereof will not affect the validity or enforceability of the remainder of such provision, term, or condition or of any other provision, term, or condition.

 

21. Governing Law, Venue and Jurisdiction. This Agreement is governed by the laws of the State of Tennessee without regard to its choice of law provisions. It is the express intent of the parties that any dispute under this Agreement be decided in accordance with the mediation and arbitration provisions contained in Section 17 hereof. Notwithstanding the foregoing, in the event a court refuses to enforce the provisions contained in Section 17 for any dispute or, in the event a court is asked to decide a dispute concerning the provisions contained in Section 17, the parties expressly agree that jurisdiction and the sole and exclusive venue for actions under or pursuant to this Agreement shall be solely in any state court in Knox County, Tennessee, or the Federal District Court for the Eastern District of Tennessee, Northern Division, sitting in Knoxville, Tennessee.

 

22. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original.

 

23. Headings. The headings of the Sections of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

 

24. Notices. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given: (a) when received, if personally delivered; (b) two (2) business days after being sent, if sent for next day delivery to a domestic address by a nationally-reputable overnight delivery service (e.g., Federal Express); (c) on the date of transmission, if sent by facsimile, telex, email or other wire transmission with transmission confirmed; and

(d) upon receipt, if sent by certified or registered mail, return receipt requested. In each case, notice shall be sent to the following address, or to such other place as may be designated by a party by written notice to the other parties:

 

If to DMGx:DMGx, LLC

 

920 Volunteer Landing Lane, Suite 201

 

Knoxville, TN, 37915

 

With a copy to: Egerton, McAfee, Armistead & Davis, P.C. Nicholas J. Chase

1400 Riverview Tower 900 S. Gay Street Knoxville, TN 37902

If to Customer: The address provided by Customer to DMGx in writing.

 

25. Force Majeure. Customer acknowledge that access to the Website may be interrupted due to (a) Website downtime for scheduled maintenance at DMGx’s or Provider’s sole discretion, or (b) interruptions in internet connectivity or other Website downtime caused by circumstances beyond DMGx’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, delays involving hardware or software not within DMGx’s control, network intrusions, or denial of service attacks. Customer agrees that DMGx shall not, in any way, be liable for, or have responsibility with respect to, any such interruptions.

 

26. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto. This Agreement may not be amended unless such amendment is in writing and signed by all parties hereto.

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized officers as of the date set forth above.