WEB SITE AND SOFTWARE SERVICES AGREEMENT
This Services Agreement (“Agreement”) is made and entered by and between BenchStrength Marketing, dba WhisperStreet, a New York corporation whose address is 33 East End Avenue, New York, NY 10028 (“WhisperStreet”, “we,” or “us”), and you, the Client, whose address is _____________________________ (“Client” or “you”) (each being referred to individually as a “Party” and collectively as the “Parties”).
WhisperStreet offers a web-based software service that provides a means for creating Internet Web Sites (“WhisperStreet Software”). Those Web Sites will be built by WhisperStreet’s clients using WhisperStreet’s Software and hosted by WhisperStreet as provided in this Agreement. We are agreeing to provide to you services relating to, among other things, access to WhisperStreet Software to build your Web Site and to host your Web Site on our servers and computers on the World Wide Web portion of the Internet using WhisperStreet Software on the terms and conditions contained in this Agreement.
1. WHISPERSTREET SERVICES
1.1 Web Site. Using our WhisperStreet Software, we agree to maintain and host your Web Site on the World Wide Web portion of the Internet (the “Web Site”) as described below (the “Services”). WhisperStreet is not responsible for providing other services not specifically set forth in this Agreement or any addendum to the Agreement agreed to in writing by both parties. You will be asked to designate a Client account name and password by WhisperStreet when you sign up for our services. You shall be allotted up to two (2) gigabytes (2 GB) of hard disk space for your Web Site.
1.2 Web Site Materials/Content; Web Site Maintenance. Except as we shall otherwise agree, you will access WhisperStreet’s software and use your own images and content to develop your unique Web Site (“Web Site Content”). We will host your Web Site on our servers and computers. You understand and agree that you will have access to change the content and view your Web Site, but you will not be able to manipulate the WhisperStreet Software used by your Web Site.
1.2.1 You are solely responsible for all content, goods, and services offered on your Web Site, all materials used or displayed on the Web Site and all acts or omissions that occur through the Web Site or in connection with your Client account or password.
1.2.2 You are solely responsible for all content under your account or password, including any content transmitted or web cast through your account by you, your agents or third parties. You may not use the Service for any prohibited activity listed below. Violation of this provision on acceptable uses will be cause for immediate termination of your Services.
1.2.3 You agree to display on your Web Site your contact information, including company name, address, telephone number, and e-mail address.
1.3 Account and Password Activity. You accept all responsibility for actions associated with your account and password. Client is solely responsible for maintaining the confidentiality of its account information and password. You must immediately notify us at team@whisperstreet.com of any real or suspected unauthorized use of your password. Client is responsible for any unauthorized activities, charges and/or liabilities made through your account. In no event will WhisperStreet be liable for the unauthorized use or misuse of passwords, account information, or your account. WhisperStreet reserves the right to change account number and password immediately upon learning of or suspecting unauthorized use.
1.4 Modification of Software. We reserve the right to revise and modify the WhisperStreet Software and to alter features, specifications, capabilities, function and other characteristics without prior notice to you.
1.5 Software License. WhisperStreet grants you a non-exclusive, non-transferable license to use the WhisperStreet Software as it appears on WhisperStreet’s server. You are prohibited from copying all or any part of the WhisperStreet Software and may only use the Software on WhisperStreet’s computers or servers. You may not use any Web Site web pages or parts of web pages generated by means of the WhisperStreet Software, other than content that originates from and is proprietary to you, on any other servers without our express written agreement. You shall not attempt to gain access to any WhisperStreet server.
1.6 Mail Center Services and Password.
1.6.1 WhisperStreet Plus Clients. If you elect to purchase the WhisperStreet Plus Service, which provides access to WhisperStreet’s Mail Center e-mail, as described below (“Mail Center” or “Mail Center Service”), you will be solely responsible for the content of your transmissions through the Mail Center. Under your existing WhisperStreet account name, we shall provide you with a Mail Center user name, and password, up to six (6) e-mail addresses, links through our Internet server, and message storage on our servers. You will set up your own unique Mail Center e-mail Service password at sign-up. You will be limited to fifty (50) megabytes for Mail Center storage on WhisperStreet’s servers. You are solely responsible for the security and proper use of the password and must take all necessary steps to ensure that the password is kept confidential, secure, used properly and is not improperly disclosed to third parties. Client shall immediately notify WhisperStreet if there is any reason to believe that the password has become known to someone not authorized to use it.
1.6.1.1 E-Mail Blocking and Deletions. WhisperStreet automatically blocks e-mail transmission and reception to WhisperStreet Plus Clients if your use of storage space on our servers exceeds fifty (50) megabytes.
1.6.2 WhisperStreet Basic Service Clients. Clients purchasing the basic WhisperStreet Service (Basic Service Clients) will be provided up to two (2) e-mail forwarding addresses but will not be entitled to any storage on the WhisperStreet servers for e-mail. E-mail sent to Basic Service. Clients will be automatically forwarded to the e-mail address provided by you to WhisperStreet. WhisperStreet bears no responsibility for misdirected or lost e-mails.
1.6.3 Client Legal Compliance. You agree to comply with all applicable local, state, national and international laws and regulations regarding e-mail communications and use. You also agree:
1.6.3.1 To comply with applicable U.S. laws regarding the transmission of technical data exported from the United States through the Mail Center;
1.6.3.2 Not to use the Mail Center e-mail Service for illegal purposes; and
1.6.3.3 Not to interfere with or disrupt networks connected to WhisperStreet’s servers or the Mail Centers.
1.6.4 Termination of Mail Center and E-Mail Accounts by WhisperStreet. Without limiting the foregoing, you agree WhisperStreet may terminate any and all of your e-mail or Mail Center accounts, which we, in our sole discretion, believe is transmitting or is otherwise connected with spam or other unsolicited bulk e-mail.
1.6.5 Mail Center Content. You agree not to transmit through the Mail Center e-mail service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material of any kind. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, gives rise to civil liability, or otherwise violates any applicable local, state, national or international law or regulation.
1.7 Additional Services. To the extent that you wish to receive from us, and we agree to provide to you, services in addition to the Services (the “Additional Services”), such Additional Services and the arrangements for their provision shall be set forth in a separate addendum to this Agreement, agreed to by both of us (the “Services Addendum”), and the Additional Services Addendum shall be incorporated into, and become a part of, this Agreement. (The Services, Mail Center, and the Additional Services will be referred to collectively as the “Services”).
1.8 Web Site Storage and Mail Center Service. WhisperStreet shall host Client's Web Site on WhisperStreet's Internet server. The parties expressly recognize that Internet servers and links are susceptible to crashes and down time. WhisperStreet warrants that it shall maintain a consistent link with the Internet, but WhisperStreet cannot and does not warrant that it shall maintain a continuous and uninterrupted link.
1.9 Client Web Site Backup. Client is responsible for maintaining backup copies of its Web Site contents. WhisperStreet will make reasonable efforts to host one mirrored image of Client's Web Site on a backup WhisperStreet server for use in the event of server crashes, power outages, maintenance, service or improvement, but WhisperStreet will bear no liability to the Client or its Clients should WhisperStreet’s backup efforts be unsuccessful.
1.10 Availability of Web Site and Mail Center Service. Unless otherwise expressly indicated in this Agreement, the Web Site and Mail Center shall be accessible to you 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 except for any loss or interruption of Web Site Services due to causes beyond our reasonable control, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. WhisperStreet may, at its own discretion, temporarily suspend all service for the purpose of repair, maintenance or improvement of any of WhisperStreet's systems. The Web Site, but not the Mail Center, shall likewise be accessible to third parties. WhisperStreet shall provide prior notice of loss or interruption of Service where reasonably practicable under the circumstances and shall restore service as soon as is reasonably practical. Client shall not be entitled to any setoff, discount, refund or other credit, in case of any service outage which is beyond WhisperStreet’s reasonable control or which is reasonable in duration.
1.11 Internet Domain Names. WhisperStreet has chosen independent Third Party Domain Name Vendors ("TPDNVs"), which are ICANN accredited registrars, to provide domain name registration services. Client hereby authorizes WhisperStreet, if requested by Client, to transfer in or acquire Client's selected domain name from TPDNVs (Domain Name(s)). By using the Domain Name, Client acknowledges acceptance of the TPDNVs' terms of service, which the TPDNVs may change at any time in their sole discretion. Client understands that Client is creating a separate contractual relationship between Client and the TPDNVs, and that Client, and not WhisperStreet, is responsible for all liability, and obligations in connection with that relationship.
1.11.1 If, after registering one or more Domain Names through WhisperStreet, Client chooses to delete a previously registered Domain Name and subsequently register one or more additional different Domain Names, Client will be charged the resulting Domain Name registration fees.
1.11.2 Client will be listed as the registrant and administrative contact in connection with Client's Domain Name, provided that WhisperStreet may temporarily list itself as the registrant and administrative contact in the event that WhisperStreet changes to a different TPDNV. Until the TPDNV change is completed. Client authorizes WhisperStreet to list itself as the billing contact, technical contact, and name servers in connection with Client's Domain Name and to take any actions WhisperStreet deems appropriate in those capacities.
1.11.3 Upon termination of WhisperStreet Service, WhisperStreet will immediately cease acting in those capacities including switching registrars. After termination, WhisperStreet will not be responsible to forward any notices, emails or other correspondence to Client or to take any other actions in connection with Client's Domain Name. In the event that WhisperStreet suspends Client’s account for lack of payment or any other reason, WhisperStreet shall not renew any Domain Names that may become due for renewal during the suspension of the account. Client will be solely responsible for all ongoing fees, as well as removing WhisperStreet as the billing, technical contact and name servers in connection with Client's Domain Name.
1.12 Security. The parties expressly recognize that it is impossible to maintain flawless security, but WhisperStreet shall take reasonable steps to prevent security breaches in WhisperStreet’s server or Client’s Web Site or Mail Center, if applicable. Client is solely responsible for any damage caused by unauthorized access to the Web Site, and Client will indemnify and hold WhisperStreet harmless for any compromise of the Web Site’s security.
1.13 Export Control. Client agrees that its Web Site shall comply with all export, reexport or import laws and regulations of any jurisdiction from which Client's Web Site is transmitted or accessed. Client agrees that it shall obtain written authority from all appropriate governmental bodies if Client intends at any time to reexport any items originating from that jurisdiction to any proscribed destination. Client shall defend, indemnify, and hold WhisperStreet harmless for any such compromise of the Web Site’s security.
1.14 Web Browsers. WhisperStreet does not promise to support any particular browsing platform, but we expect to support Microsoft’s Internet Explorer, Mozilla Firefox and Macintosh’s Safari.
2. FEES FOR SERVICES; TAXES
2.1 Monthly Fees; Credit Card Payment; Automatic Renewal. All fees are charged in advance on a monthly basis and are non-refundable. By accepting these Terms of Service you grant WhisperStreet the right to automatically renew the Service(s) each month until either Party terminates this Agreement. You also authorize us to charge the monthly Fees for the Services you request and we provide you (“Fees” or “Prices”) to the credit card that you have provided us in accordance with the applicable fee and payment schedule below. You acknowledge that WhisperStreet uses a third-party vendor for secure online payment processing. WhisperStreet does not store, process or transmit any cardholder data. WhisperStreet does facilitate the link between you and the vendor through our Web Site.
You will provide us with prompt notice of any change in your contact information, including company name, address, telephone number, e-mail address, or the credit card you provided for payment of Services. Failure to keep your credit card information up-to-date may cause an interruption in your Service. WhisperStreet accepts no liability for cancelled service and any resulting damages incurred as the result of bad, expired, or inaccurate credit card information. You will notify WhisperStreet of any billing issues within forty-five (45) days of receiving your credit card statement reflecting the charge.
2.2 Current Prices. WhisperStreet offers the following Services at the prices noted:
• WhisperStreet Basic Service Cost: $25/month
• WhisperStreet Plus
(Basic Service plus Mail Center) Cost: $40/month
2.3 Change in Fees. WhisperStreet will provide fifteen (15) days notice of change in Fees or pricing on its Web Site and will make every reasonable effort to notify you by e-mail. Prices and Fees are subject to change at our discretion at any time. Client acknowledges and agrees renewal prices may be higher or lower than its startup price.
2.4. Taxes. You shall be liable for any applicable federal, state, and local taxes related to your Web Site or your business.
3. REPRESENTATIONS AND Warranties.
3.1 WhisperStreet Representations and Warranties. WhisperStreet represents and warrants that WhisperStreet has the authority to enter into and perform its obligations under this Agreement; and that Services provided to you under this Agreement shall be performed in a workmanlike manner. You understand that no software is 100% error-free. WhisperStreet disclaims any responsibility for any content included on your Web Site or in e-mail in your Mail Center for any purpose, including without limitation for inaccuracy, currency, reliability, or completeness. While we will take reasonable measures to preserve your Web Site content, we are not responsible for deleting or failing to store your Web Site or its content. We are not bound by nor should you rely on any representation by any agent, representative or employee of any third party that you may use to apply for our services; or on information posted on our Web Site of a general informational nature.
3.2 “As Is” Services. Use of WhisperStreet Services is at the Client’s own risk. The WhisperStreet Service and Software are provided on “as is” and “as available” basis, and WhisperStreet does not warrant the Services’ fitness for any particular use or purpose.
3.3 Service Interruptions. WhisperStreet is not responsible for power outages or down service. WhisperStreet will need to interrupt service for routine maintenance and updates. Neither this agreement or any documentation furnished by us to you is intended to express or imply any warranty that WhisperStreet service will be uninterrupted, timely or error free or that the software will provide uninterrupted, timely or error free service. You, the Client, must determine that the software adequately meets your requirements.
4. Client Representations and Warranties.
You represent and warrant that:
4.1 Web Site. You are responsible for all content, goods, and services offered on your Web Site, all materials used or displayed on the Web Site, and your acts or omissions related to Web Site or in connection with your Client account or password. Your Web Site content shall not contain any content, materials, advertising, or services that are inaccurate or contain misrepresentations; that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, intellectual property, contract, moral, or privacy right or any other third party right; and that Client owns the Web Site content or otherwise has the right to place the Web Site content on the Web Site. Your use of the Web Site will not violate any law or regulation of any governmental or regulatory/administrative entity;
4.2 Authority. You have the power and authority to enter into and perform your obligations under this Agreement;
4.3 Your Web Site Users. You will be solely responsible for your relationships with and activities of the users of your Web Site.
4.4 Prohibited Activities. You shall not use the Web Site or the Services provided to you by us to:
4.4.1 Send unsolicited mail messages, including the sending of "junk mail," spam, or other advertising material to individuals who have not specifically requested such material, who were not previously your Clients or with whom you do not have an existing business relationship ("E-mail spam");
4.4.2 Engage in harassing behavior, whether through language, frequency or size of e-mail message;
4.4.3 Use without authorization or forge e-mail header information;
4.4.4 Solicit mail with the intent to harass or to collect replies;
4.4.5 Create or forward "chain letters" or other "pyramid schemes" of any type; and/or,
4.4.6 Send unsolicited e-mail from WhisperStreet’s network
4.4.7 Attempt to gain unauthorized access to other computer systems to interfere with another client’s use and enjoyment of the E-mail service or another entity's use and enjoyment of similar services.
5. PROPRIETARY RIGHTS
5.1 Whisper Street’s Proprietary Rights. You, the Client, acknowledge and agree that:
5.1.1 WhisperStreet is the sole author, owner, and proprietor of the WhisperStreet Software and the Services provided to you under this Agreement and attendant intellectual property and other rights;
5.1.2 WhisperStreet’s Software, Services, and the Web Site are not "work[s] made for hire;"
5.1.3 WhisperStreet is an independent contractor and is not an employee, partner, joint author or a joint venture of Client;
5.1.4 WhisperStreet shall be deemed the sole author and owner of PHP, C, SQL, HTML Code, graphics and data, and attendant intellectual property rights that are created or acquired by WhisperStreet and incorporated into the Web Site or WhisperStreet Software, or incorporated into any work embodying or derived from any portion of the Web Site.
5.1.5 Client expressly grants, assigns and otherwise transfers to WhisperStreet, its successors and its assigns, nonexclusive rights in perpetuity to publicly display, publicize, or demonstrate the Web Site only for WhisperStreet’s marketing and promotional purposes.
5.2 Client’s Proprietary Rights. Client shall be granted exclusive use of:
5.2.1 Client’s domain name and its attendant intellectual property rights;
5.2.2 any graphics or data provided by Client that are incorporated into the Web Site; and/or
5.2.3 any work embodying or derived from any portion of the Web Site content during the term of this Agreement.
6. PRIVACY AND USE OF CLIENT INFORMATION
6.1 Client Information. WhisperStreet will maintain information about you, including but not limited to, your account registration information, and click stream data. We reserve the right to use that information in aggregate form for our marketing and promotional purposes. We will make reasonable efforts to keep your proprietary information private, but privacy cannot be and is not guaranteed. If we become aware that a third party has gained access to your proprietary information, we will notify you immediately, but you will be responsible for pursuing legal or other recourse against the offender. WhisperStreet does not store, process or transmit any cardholder data.
6.2 Release of Client Information. WhisperStreet will not release any information about you except under circumstances noted in this Agreement or in the good faith belief such action is reasonably necessary:
6.2.1 if the law or the need to comply with legal process requires it;
6.2.2 we need to protect the rights and property of our Service;
6.2.3 to enforce terms of this Agreement;
6.2.4 to respond to claims the Web Site is engaged in activities that violate rights of third parties; or
6.2.5 if a user of your Web Site, a government agency or a trademark or copyright owner needs to contact you in regards to transactions or content on your Web Site.
6.3 Web Site Review by WhisperStreet. WhisperStreet has the right but not the obligation to review the Web Site for compliance with the terms of this Agreement at any time.
6.4 WhisperStreet may from time to time use third party vendors to update expiration dates and account numbers of our Clients and users, and you agree by accepting our terms that we can share that information for purposes of maintaining ongoing Services for you.
6.5 You acknowledge and agree that any material and/or data downloaded or otherwise obtained through the use of the Service is done at your risk and that you will be solely responsible for any damages to your computer system or loss of data that results from the download of such material and/or data.
7. CONFIDENTIALITY
7.1 Confidential Information. You acknowledge and agree that any and all confidential information and materials related to WhisperStreet’s Software or Services constitute our confidential and proprietary trade secrets (“Confidential Information”). You further acknowledge and agree that there may be methods, systems, designs, future plans, and other information that are unique assets of WhisperStreet, and though not trade secrets, are confidential.
7.2 Notwithstanding any other provisions of this Agreement, Confidential Information shall not include:
7.2.1 information that is, or subsequently becomes, within the knowledge of the public generally through no fault of yours;
7.2.2 information which you can substantiate by written document was known to you at the time of receipt; or
7.2.3 information that is subsequently obtained from a third party who had obtained the information free of any confidentiality obligations.
7.3 Nondisclosure. You agree to keep any and all of the Confidential Information that we provide in confidence and not use or disclose it to any other person or entity without our permission. With respect to all such information, you will exercise the same degree of care that you exercise with respect to protecting your own confidential information, and in no event less than reasonable care.
8. TERM AND RENEWAL.
This Agreement shall be effective when you signify your agreement to the terms and conditions of this Agreement (the "Effective Date") and shall remain in effect until terminated as provided in this Agreement. This Agreement and your Services will automatically renew each month unless earlier terminated as provided in this Agreement.
9. INDEMNIFICATIONS
9.1 Client Indemnifications. You agree to defend, indemnify, and hold harmless WhisperStreet, its directors, officers, employees and agents, with respect to any claim, damage, or liability, including reasonable attorneys' fees (”Claim”), made by users of your Web Site or others, and/or for any Claim to the extent that such Claim is based upon or arises:
9.1.1 from your conduct, any alleged violation of this Agreement or the rights of others, including but not limited to your unauthorized use of any content, trademarks, service marks, trade names, copyrighted or patented material or other intellectual or other property used in connection with Web Site;
9.1.2 from your Web Site, the content provided by you and used on the Web Site, including without limitation, content that infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or any other right or license;
9.1.3 from your use of the Web Site or Services or from the goods or services offered on your Web Site;
9.1.4 which alleges the negligence or willful misconduct of Client;
9.1.5 which, if true, would constitute a breach of
this Agreement by you;
9.1.6 from users of your Web Site;
9.1.7 a break in service;
9.1.8 lack of speed, access delays or interruptions;
9.1.9 data non-delivery or mis-delivery;
9.1.10 unauthorized use or misuse of your account
or password;
9.1.11 unintentional errors, omission or misstatements in any and all information and service;
9.1.12 deletions or failure to store e-mail messages;
9.1.13 development or interruption of your Web Site or Services;
9.1.14 your inability to use e-mail or Mail Center services or any component of our service;
9.1.15 our processing of any authorized modification to your Domain Name record or any Domain Name provided to you by a third party domain vendor; and/or
9.1.16 any action by WhisperStreet made in good faith to restrict e-mail transmission of material that it or any user of the Mail Center e-mail service considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
9.2 WhisperStreet Indemnifications
WhisperStreet agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against any of them with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, at trial and on appeal, to the extent that such action arises out of the gross negligence or willful misconduct of WhisperStreet or any intellectual property infringement by WhisperStreet.
9.3 Notice of Claim. In claiming any indemnification under this Agreement, the indemnified Party shall promptly provide the indemnifying Party e-mail notice within three (3) days of receipt of any Claim that the indemnified Party believes falls within the scope of the foregoing paragraphs. 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 further provided 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.
10. LIMITATION OF LIABILITY.
WHISPERSTREET SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF THE WEB SITE OR CLIENT’S DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT OR UNAUTHORIZED MEANS OR DEVICES. WHISPERSTREET SHALL HAVE NO LIABILITY WITH RESPECT TO WHISPERSTREET’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF WHISPERSTREET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF WHISPERSTREET TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO WHISPERSTREET BY CLIENT UNDER THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CLAIMS, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER CLAIMS. WhisperStreet shall not be liable under any circumstance whatsoever for any loss of business, profits or goodwill, loss of use or data, interruption of business or for any indirect, special, incidental or consequential damages of any character, even if WhisperStreet is aware of the risk of such damages that result in any way from Client’s use or inability to use the Service or software, or that result from errors, defects, omissions, delays in operation or transmission or any other failure of performance of the services or the software. IT IS UNDERSTOOD AND AGREED THAT WHISPERSTREET IS NOT PROVIDING ANY OTHER WARRANTIES NOT SET FORTH IN THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. TERMINATION
11.1 By WhisperStreet. WhisperStreet has the right to terminate this Agreement and Services without cause at the end of any monthly billing cycle by giving Client thirty (30) days notice of termination. WhisperStreet may terminate this Agreement and your user accounts and shut down your Web Site and remove it from WhisperStreet servers immediately and without notice for breach of this Agreement or if, in its sole discretion, WhisperStreet believes your conduct has violated WhisperStreet’s standards or that you are engaged in illegal activities or the sale of illegal or harmful goods or services or engaged in activities WhisperStreet believes will be detrimental to WhisperStreet or its the Services or that may damage other WhisperStreet clients.
11.2 By Client. Client may terminate this Agreement and Services at any time without penalty at the end of any monthly billing cycle by using account cancellation system in its account. Client may also terminate its Service immediately upon giving notice to WhisperStreet for any breach of this Agreement by WhisperStreet. There will be no partial rebate for months already paid.
11.3 Web Site Post Termination. WhisperStreet bears no responsibility for hosting or retrieving Client’s Web Site content after this Agreement has been terminated.
12. GENERAL PROVISIONS.
12.1 Notices. All notices required under this Agreement shall be promptly delivered by e-mail or facsimile notice to the other Party.
12.2 Entire Agreement; Amendment by Whisper Street. This Agreement constitutes the entire agreement between the Parties and cancels all contemporaneous or prior agreements, whether written or oral, with respect to the subject matter of this Agreement. WhisperStreet retains the right at its discretion to change the terms and conditions of this Agreement upon five (5) days notice to the Client.
12.3 Force Majeure. Neither party shall be responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, labor difficulties, including without limitation, strikes, slowdowns, picketing or boycotts, or any other circumstances beyond the reasonable control and not involving any fault or negligence of the party affected ("Condition"). If any such Condition occurs, the party affected, upon giving prompt notice to the other party, shall be excused from such performance on a day-to-day basis during the continuance of such Condition (and the other party shall likewise be excused from performance of its obligations on a day-to-day basis during the same period), provided, however, that the party so affected shall use its best reasonable efforts to avoid or remove such Condition and both parties shall proceed immediately with the performance of their obligations under this Agreement whenever such causes are removed or cease.
12.4 Severability of Agreement. If any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, administrative agency or as a result of future legislative action, such holding or action shall be strictly construed and the unenforceable provision shall be deemed severable from the remainder of the Agreement to the extent permitted by law, and the validity or effect of any other provision of this Agreement shall remain binding with the same effect as though the void parts were deleted.
12.5 Relationship of Parties. In providing any Services under this Agreement, WhisperStreet is acting solely as an independent contractor and not as an agent of any other party. Nothing contained in this Agreement is intended to give rise to a partnership or joint venture between the parties or to impose upon the Parties any of the duties or responsibilities of partners or joint venturers.
12.6 Assignment. The rights, obligations, and other interests of Client shall not be assigned or conveyed by Client, in whole or in part, without the prior written consent of WhisperStreet and any purported assignment or conveyance of same shall be void.
12.7 Survivability. The respective obligations of the parties under this Agreement that by their nature would continue beyond the termination, cancellation or expiration, shall survive any termination, cancellation or expiration, including, but not limited to, proprietary rights, warranties, indemnifications, obligations to maintain confidentiality.
12.8 Choice of Law and Jurisdiction. The construction, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction and subject to the exclusive jurisdiction of its federal or state courts in New York. Any suit brought by either party against the other party for claims arising out of this Agreement shall be brought in the Supreme Court of the State of New York, New York County, and/or, if applicable, the United States District Court for the Southern District of New York. The application of the UN Convention on Contracts for the International Sale of Goods is specifically excluded from this Agreement.
12.9 Section Headings. The headings of the several paragraphs are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.