Terms and Conditions of Service Agreement

THESE ARE THE TERMS AND CONDITIONS APPLICABLE TO THE PURCHASE AND SALE OF WEBSITE RELATED SERVICES AMONG YOU (Customer) AND WEBSITE PROS INCORPORATED. IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOTIFY WEBSITE PROS WITHIN THIRTY (30) DAYS OF YOUR ORDER AND THE SERVICES WILL BE CANCELED WITH NO FURTHER OBLIGATIONS BY EITHER PARTY. FAILURE TO NOTIFY WEBSITE PROS OF CANCELLATION WITHIN SUCH PERIOD SHALL BE DEEMED TO INDICATE THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS AND CONDITIONS, AND AGREE TO BE BOUND BY THEM. Website Pros, Inc. ("Website Pros"), will provide Customer with the following services (the "Service"). Website Pros shall build a eWorks! XL website (the "website") with information provided by Customer. Website Pros shall develop and host Customer's website on a network server accessible by the Internet via an assigned Universal Resource Locator ("URL") subdomain and register Customer's website URL with several World Wide Web Search Engines. Customer hereby grants to Website Pros and its subcontractors the necessary rights and licenses with respect to such website to carry out obligations under this Agreement and to make a reasonable number of archival or back-up copies as deemed necessary by Website Pros. Optionally, the customer may elect to purchase additional add-on services such as e-commerce, or advanced website options which are also covered by this agreement.

1. Customer shall pay Website Pros for the Service provided. All rates are stated net of all applicable federal, state, and local taxes. On any amounts not paid when due, Customer agrees to pay interest at the rate of 1.5% per month (18% per year) or, if such rate is in excess of the rate allowed by law, then Customer agrees to pay the highest rate allowed by law. In addition, Customer agrees to pay all costs of collection, including costs of litigation and reasonable attorneys' fees. Customer agrees to execute financing statements and other instruments at Website Pros' request. A $20 (Twenty U.S. Dollars) collection fee will be charged for all dishonored checks. A $15 (Fifteen U.S. Dollars) fee will be assessed for the following reasons: (1) late payment, (2) payment with insufficient funds, (3) denied or invalid credit card number, or (4) restart of Service terminated for nonpayment. Payment is late after the fifth (5th) day of the month. Website Pros may change any fee, rate, or plan upon thirty (30) days' notice (except for hosting fees [see Section 5 herein]).
2. Customer shall be responsible for the following:

• Providing Website Pros with all relevant information and custom images (including, but not limited to, design, pamphlets, brochures, logos, and other images) in connection with development of the website.
• Contacting Website Pros for all changes, modifications, and enhancements to the website and/or Service starting from the date of sale.
• Contacting Website Pros with notice of Customer's decision to cancel or discontinue the Service starting from the date of sale. CUSTOMER MAY CANCEL THE WEBSITE PROS SERVICE, WITHOUT PENALTY OR OBLIGATION, AT ANY TIME DURING THE FREE 30-DAY TRIAL PERIOD. IF CUSTOMER DECIDES TO CANCEL PRIOR TO THE END OF THE FREE 30-DAY TRIAL PERIOD, CUSTOMER MUST CONTACT AND NOTIFY WEBSITE PROS OF THE DECISION TO CANCEL. IF NO SUCH NOTIFICATION IS GIVEN TO WEBSITE PROS BY CUSTOMER, WEBSITE PROS WILL ASSUME CUSTOMER IS SATISFIED WITH AND ACCEPTS THE SERVICE, AND WEBSITE PROS WILL BEGIN BILLING THE MONTHLY SERVICE FEE DIRECTLY TO CUSTOMER’S TELEPHONE BILL, CREDIT CARD, OR AUTOMATED CLEARING HOUSE (ACH). (THE MONTHLY SERVICE FEE IS $64.95. DISCOUNTS FOR CREDIT CARD OR ACH PAYMENT MAY APPLY.) CUSTOMER MAY CANCEL THE SERVICE BY CALLING WEBSITE PROS AT 1-800-311-2707.
• Obtaining Internet connectivity to access the website, to send and receive e-mail, and to otherwise access and utilize the Internet.
• To the extent Customer gathers any personal information about visitors to the website, Customer will not share that personal information with any third party without first obtaining a visitor’s consent.
• Providing current and updated contact information (including e-mail address and fax number) for Website Pros' use in contacting Customer concerning the website.
• Customer represents to Website Pros that Customer is at least eighteen years old and is responsible for supervising the activities of any under-age user.
• Ensuring that the website content provided by customer does not infringe or violate the Intellectual Property rights (including, but not limited to, trademarks, trade names, copyrights, patents, domain registration rights, and trade secrets) or any other right of any third party (including, but not limited to, rights of privacy and contractual rights), and acquiring any authorization(s) necessary to use intellectual property or other proprietary information of third parties.
• Ensuring the accuracy of materials provided to Website Pros, including, without limitation, website content, descriptive claims, warranties, guarantees, nature of business, and contact information for the Customer.

4. Customer understands that any fees and annual or monthly charges are nonrefundable.
5. Service commencement is initiated on the basis of a recorded order verification and begins on the date that the Customer's website is up and available on the Internet. This is the site "origination date." Customer also understands and agrees that the Service provided by Website Pros is billed one month in advance and all charges represent the next month's full service. Current charges are not prorated upon cancellation. Customer agrees to pay all fees incurred by Customer and billed to Customer via credit card, check, local telephone company, and/or direct billing. Direct billing is due upon receipt of invoice. Website Pros reserves the right to adjust its hosting fees from time to time without prior notice to Customer.
6. Customer will use the Service in a manner which does not interfere with or disrupt other network users, services, or equipment, and Website Pros reserves the right to terminate or suspend Service without notice if such interference is determined by Website Pros to exist. Such interference or disruption includes, but is not limited to:

• wide-scale distribution of messages, including bulk e-mail or unsolicited spam e-mail, or wide-scale distribution of messages to inappropriate mailing lists, newsgroups, or other public or private forums,
• propagation of computer worms or viruses, and
• use of the network to make unauthorized entry to other computational, information, or communications devices or resources. This includes unauthorized security probing activities or other attempts to evaluate the security integrity of a network or host system without permission.

7. Website Pros reserves the right to deny, terminate, or suspend Service without notice if, in Website Pros' sole discretion, the Service is used by Customer in a manner that violates or may violate the following standards, and Website Pros reserves the right to reject, alter, modify, or remove Customer's website, website domain name, URL address, or any website content (including, but not limited to, any language, words, text, photographs, designs, drawings, graphics, images, symbols, or logos) which Website Pros in its sole discretion deems to be:

• An infringement on or a mechanism designed to facilitate the infringement of a propriety interest of any third party, including without limitation, any copyright, trademark, domain registration right, trade secret, or patent right. By using the Service, Customer represents and warrants that any name or word submitted to be used as all or part of the URL associated with the website does not infringe any trademark or domain name rights of any third party. Moreover, Customer warrants that it has a present good faith intention to use the URL it requests in connection with a commercial or personal endeavor and that it is not merely "cybersquatting," i.e., obtaining the URL merely to attempt to sell the rights to the URL or subdomain to some third party.
• In violation of any federal, state, county, and municipal laws, regulations, governmental agency orders, and court orders.
• Offensive, including without limitation, bigotry, racism, discrimination, hatred, or profanity; is disparaging, defamatory, libelous, or results in an invasion of privacy; promotes or provides instructional information about illegal activities or physical harm or injury to any group, individual, institution or property; or infringes on a proprietary interest of any third party, including without limitation, any copyright, trademark, domain registration right, trade secret or patent right; or may violate any federal, state, county, and municipal laws, regulations, governmental agency orders, and court orders; or
• States or implies that the website is placed by Website Pros or any party with a contractual relationship with Website Pros, or that such parties endorse the Customer’s products or services.
• Pornographic or obscene. Website Pros neither sanctions nor permits hosted site content or the transmission of data that contains illegal or obscene material or fosters or promotes illegal activity. Website Pros reserves the right to immediately suspend or terminate any site or transmission that violates this policy, without prior notice. In the event of such termination, Customer agrees that the unused portion of any fees Customer may have paid for any services rendered to Customer by Website Pros are an appropriate recompense to Website Pros for the time required to respond to and address issues created by Customer's illegal or obscene site/content, and Customer agrees not to seek recovery of those fees. Further, should Customer violate this policy, Website Pros will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about Customer, Customer’s website, the illegal or obscene content, and those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.
• Violent or encouraging violence.
• Disparaging, defamatory, libelous, or resulting in an invasion of privacy.
• Promotion or providing of instructional information about illegal activities or physical harm or injury to any group, individual, institution or property, or encouraging illegal or criminal conduct.
• Promotion or facilitation of, or engaging in, consumer deception or fraud, drug use, drug dealing, pyramid schemes, gambling, or any other illegal activities.
• Intentional holding of Website Pros (including its affiliates) or their employees or shareholders up to public scorn, ridicule, or defamation.

8. Website Pros' services are provided on an "as is" and "as available" basis. Website Pros' entire liability and Customer's exclusive remedy against Website Pros for any failure of service under this agreement, or the performance or nonperformance of any obligation under this agreement, shall be limited to a refund of amounts paid to Website Pros during the period of time that the Services contracted for were interrupted or not provided properly or continuously. The entire liability of Website Pros, and Customer’s exclusive remedy against Website Pros for errors in the website (other than those errors caused by Customer) shall be the correction of such errors upon notice from Customer.  EXCEPT AS EXPRESSLY STATED HEREIN, CUSTOMER’S USE OF THE SERVICE IS AT ITS OWN RISK AND WEBSITE PROS DISCLAIMS ANY AND ALL WARRANTIES TO CUSTOMER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WEBSITE PROS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. Website Pros disclaims and shall not be liable for any other loss, injury, cost or damage suffered by Customer or any third party and shall in no event be liable for consequential, special, or indirect or incidental damages, including without limitation, damages for loss of business profits, business interruption, or loss of data, arising out of or in any way connected with the use of the Website Pros website and any information available on it, and the delay or inability to use the site or any information, even if Website Pros has been advised of the possibility of such damages. These limitations and exclusions regarding damages apply even if any remedy fails. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Except as expressly stated herein, Website Pros disclaims any and all warranties to Customer, expressed or implied, including implied warranties of merchantability and fitness for a particular purpose.
9. Website Pros will not be liable to any third parties for any direct, incidental, or consequential losses or damages suffered by such third parties for any reason, whether foreseeable or not, including, without limitation, damages for loss of profits, loss of income or earnings, loss of business opportunities, injury, or other loss or damage resulting directly or indirectly out of or in connection with the Service, or through use of Customer's website. The foregoing shall apply despite any negligence, misconduct, errors, or omissions by Website Pros, including without limitation its employees, representatives, agents, or technical operations. Customer assumes sole responsibility for:

• acquiring any authorization(s) necessary to use intellectual property (including, but not limited to, copyrights and trademarks) or information of third parties;
• acquiring any authorization(s) necessary for hypertext links to third party websites;
• the accuracy of materials provided to Website Pros, including, without limitation, website content, descriptive claims, warranties, guarantees, nature of business, and contact information for the Customer; and
• ensuring that the website content provided by Customer does not infringe or violate the intellectual property rights or any other right of any third party. Website Pros shall have no liability and shall be held harmless for any content provided by Customer 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 licenses. Website Pros disclaims any responsibility for any content, goods, and services available through Customer's website, or the quality or accuracy of any information in Customer's website. Website Pros will not endorse, warrant, or guarantee any product or service offered through Customer's website, and will not be a party to or in any way monitor any transaction between Customer and third-party purchasers of products or services resulting from the Service or use of the website, including, without limitation, all sales of goods or services, credit card transactions, banking or securities transactions, or any business, service, or merchandise agreements. WEBSITE PROS DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES TO THIRD PARTY USERS OF CUSTOMER'S WEBSITE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.

10. Customer agrees to defend, indemnify, and hold harmless Website Pros and each of Website Pros' officers, directors, employees, agents, and affiliates from, against, and in respect of: (i) any and all losses, damages or deficiencies resulting from any third party claim against Website Pros in connection with Customer's website (including, but not limited to, website content) or the URL and (ii) all costs and expenses incident to any and all actions, suits, proceedings, claims, demands, assessments, or judgments in respect thereof regardless of the merit thereof, including Website Pros' reasonable legal fees and expenses (whether incident to the foregoing or to Website Pros' enforcement of said rights or defense and indemnity).
11. Customer agrees to defend, indemnify, and hold harmless Website Pros and each of Website Pros’ subsidiaries, affiliates, officers, directors, agents, co-branders or other partners, and employees of any of the foregoing, from, against and in respect of any and all losses, costs (including reasonable attorney’s fees), expenses, damages, assessments, or judgments (collectively, “Liabilities”), resulting from any claim against any of such parties in connection with Customer’s website except to the extent that such claims directly resulted from the gross negligence or willful misconduct of the indemnified party.
12. Website Pros reserves the right to suspend or terminate Service with or without notice to Customer if Website Pros determines, in its sole discretion, that Customer has failed to comply with its obligations as set forth in this Agreement, including but not limited to Sections 6 and 7 herein.
13. As between Customer and Website Pros, all materials, images, photos, information, and other content provided by Customer to Website Pros for inclusion to the website shall remain the sole and exclusive property of Customer. With the exception of Customer’s ownership interest as identified in the previous sentence, ownership interest to the website, including, but not limited to, the HTML coding, scripting, copyrights, and all other intellectual property rights, shall remain exclusively with Website Pros. Upon termination of the Service, should Customer desire to obtain the proprietary, copyright, or ownership rights to the website, Customer must obtain express, written permission from Website Pros, and Customer shall compensate Website Pros a royalty fee of twelve (12) times the then-current monthly fee received by Website Pros for the Service as compensation for assignment of the proprietary rights to the website. Such ownership or proprietary rights assignment shall be limited to the actual website and its underlying HTML script or coding as developed for Customer by Website Pros, but shall not include any rights to Website Pros' software, trade secrets, methodologies, processes, proprietary functions, know-how, and all intellectual property including, but not limited to, all copyrights, trademarks, patents, and trade secrets related to Website Pros' products or services, which shall remain the sole and exclusive property of Website Pros and its suppliers, affiliates, partners, and licensors.
14. This Agreement shall be governed by the laws of the State of Florida, without giving effect to principles of conflict of laws contained herein. Customer agrees that any judicial proceeding for the breach of or enforcement at law or equity of this Agreement or any provision hereof shall be instituted only in a federal or state court of competent jurisdiction in the city of Jacksonville and the State of Florida, and Customer consents to the jurisdiction of such court, and waives the right to challenge the jurisdiction of such court on grounds of lack of personal jurisdiction or to seek a change of venue. This Agreement constitutes the entire agreement of the parties relative to its subject matter, and shall not be waived, modified, or supplemented in whole or in part except in a writing signed by the parties. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
15. Any failure by Website Pros to enforce any of its rights under this Agreement or any applicable laws shall not constitute a waiver of such right. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, Customer, Website Pros, and the court shall endeavor to give effect to the intent reflected in that provision, and the remaining provisions shall retain their full force and effect.
16. This Agreement constitutes the entire agreement of the parties relative to its subject matter. Customer may not waive, modify or supplement, this Agreement in whole or in part, except for written permission or amendment by Website Pros. Website Pros reserves the right to unilaterally modify and revise the Terms and Conditions of this Agreement from time to time. Such modifications or revisions shall be provided to Customer via the Notice provisions set forth in Section 17 herein, and Customer shall be deemed to have accepted, and to be apprised of and bound by, any such modifications or revisions to the Terms and Conditions, and may only reject such modifications or revisions by canceling the Service.
17. Notice to Customer shall be deemed effective when sent via e-mail to the last known Customer contact e-mail address, or if none, to the last known Customer fax number, or if none, when deposited in first-class U.S. mail with sufficient postage attached addressed to the last known Customer mailing address.
18. This Agreement does not create any agency, employment, partnership, joint venture, franchise, or other similar or special relationship between you and Website Pros. Neither party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its affiliates, whether express or implied, or to bind the other party or its affiliates in any respect whatsoever.
    
    Your rights and obligations under this Agreement shall not be transferred or assigned directly or indirectly without the prior written consent of Website Pros.
    
    Version G 06-04