TopDogLegal Order Page

DATA HOSTING AGREEMENT THIS AGREEMENT, is between CopTracker, Inc. (dba "TopDogLegal.com" or "TDL"), and Client/ End User.

A. WHEREAS, TDL designed and hosts web sites for use on the Internet’s World Wide Web and provides on-line interactive client management software;

B. WHEREAS, Client desires TDL to provide on-line interactive client management software;

C. WHEREAS, TDL desires to retain all rights, title and interest in and to all software, documentation, derivative works and other intellectual property developed, designed, created or contributed by TDL pursuant to this Agreement, excluding Client’s graphics and data supplied by Client; and

D. WHEREAS, Client shall pay TDL a monthly fee for providing on-line interactive client management software;

NOW THEREFORE, the parties agree as follows:

AGREEMENT

1.0 Definitions.

1.2 "Agreement" means this written agreement between TDL and Client.

1.3 "Bug" means an error in a Web Site that causes repeated and repeatable malfunctions.

1.4 "CGI" or "Common Gateway Interface" means the standard method of writing computer code to enable an interactive computer program on one Internet server to communicate with users located at remote Internet servers.

1.5 "CopTracker, Inc.", "TopDogLegal.com", or "TDL" means a Web Host, as defined below, that also processes provides on-line interactive client management software.

1.6 "Cookie" means a file stored on the user’s computer into which data which is transparently transmitted by a Web Site regarding a variety of information.

1.7 "Derivative Work" means any modifications made to any computer source code, object code, CGI code or HTML code.

1.8 "Electronic Mail" or "E-Mail" means any communication transmitted via the Internet which is stored in the recipient’s e-mail box.

1.9 "Hour" means one hour spent by one developer.

1.10 "HTML Code" means hypertext mark-up language, which is the language commonly used for developing the appearance of Web Sites.

1.11 "Intellectual Property Rights" means:
1.11.1 Rights in any patent, copyright, trademark, trade dress, and trade name;
1.11.2 Telated registrations and applications for registration; and
1.11.3 Trade secrets, moral rights and goodwill.

1.12 "Internet" means the global computer network comprising interconnected networks using standard Protocols.

1.13 "Internet Service Provider" or "ISP" means an entity that enables the uploading and downloading of data between remote computers and the Internet.

1.14 "Kilobytes per second" or "Kbps" means 1,000 bytes of data transmitted in one second.

1.15 "Project Manager" means one of Client’s employees who shall be deemed as Client’s liaison with TDL, 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.

1.16 "Protocols" means a set of rules that regulate the way data is transmitted between computers.

1.17 "Robot" or "Spider" means an automated device used by a searching service to gather pieces of information about Web Sites.

1.18 "Web Page" means each individual screen display contained in Client’s Web Site.

1.19 "Web Site" means all Web Pages and domain names associated with Client and its products or services, and which are stored on TDL’s Internet server computer.

1.20 "Data Hosting Service" means an entity that stores third-party Data on its Internet server computer, receives or stores commands or data transmitted by Internet users, transmits Web Page data to users’ Internet addresses, and performs related maintenance.

1.21 "World Wide Web", or "WWW", is a subset of the Internet, and is a common system for browsing Internet Web Sites.

2.0 Data Hosting Service.

2.1 Fees. Client shall pay TDL a annual Data Hosting fee in the amount of:

First User: $59.99 per month
Next 4 Users: $39.99 per user per month
Next 15 Users: $29.99 per user per month
After 20 Users: $19.99 per user per month

Plus applicable sales tax, if any.

2.2 TDL reserves the right to change the rate as set forth above upon thirty (30) days’ notice. Client shall pay the appropriate fee --as determined above-- in advance, and Client shall be liable to pay the full year's fee, even if service is terminated before the end of the year for any reason. If Client fails to pay all outstanding bills more than seven (7) days after the due date, Client is liable for a thirty-five dollar ($35.00) administrative surcharge, and Client may have its account suspended. If payment is returned or rejected, Client’s account will be suspended and Client agrees to pay a thirty-five dollar ($35.00) charge. Suspension of its account does not relieve Client from its obligation to pay any and all accrued fees, charges and costs due to the Company. Suspended service may be resumed by TDL, at TDL’s sole discretion, after TDL has received full payment of all amounts due, along with a reconnect charge of thirty-five dollars ($35.00). Past due amounts are subject to an interest rate charge of one and one-half percent (1.5%) per month from the date of invoice, or the maximum rate permitted by law. Client agrees to pay all costs of collection, including attorney fees and collection agency fees.

2.3 Maximum Hard Disk Space. Client shall be allotted a total of five (5 gig) gigbytes of storage space on TDL’s hard drives, which may be used to store Client’s data. Client shall pay fifty dollars ($50.00) to TDL per month for each additional increment of five (5 gig) gigbytes stored. Client is 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 not disclosed to unauthorized people. Client shall immediately notify TDL, if there is any reason to believe that the password has become known to someone not authorized to use it.

2.4 Client Agrees to Abide by TDL Operating Policies. Client agrees that it shall abide by TDL operating policies, which may be amended from time to time at TDL’s sole discretion, and Client agrees to indemnify, hold harmless and provide a defense for TDL against any claims arising from Client’s failure to follow these guidelines:

2.5.1 Client agrees not to post or transmit any message anonymously or under a false name.
2.5.2 Client agrees not to post or transmit any message which is libelous, defamatory or which discloses private or personal matters concerning any person.
2.5.3 Client agrees not to post or transmit any message, data, image or program which is illegal, indecent, obscene or pornographic. 2.5.4 Client agrees not to post or transmit any message, data, image or program that would violate the Intellectual Property Rights of others.
2.5.5 Client agrees not to interfere with use of the Internet by any other TDL Clients or other users.
2.5.6 Client agrees not to post or transmit any file which contains viruses, worms, "Trojan horses" or any other destructive features, regardless whether damage is intended or unintended by Client.
2.5.7 Client agrees not to post or transmit any message which is harmful, threatening, abusive or hateful.
2.5.8 Client agrees that it shall be solely responsible for providing its own connection to TDL via an Internet Service Provider, and that it shall be solely responsible for providing a suitable computer, modem and other hardware or communications equipment necessary to access TDL. Client also agrees that, if it accesses TDL through a LAN or WAN, it shall be solely responsible for providing, maintaining and supporting a network and IP router that interface satisfactorily with TDL.
2.5.9 Client agrees that it’s account shall be used solely by Client. Regardless whether Client has actual control over the acts of third parties, Client agrees that it has the last clear chance to avoid usage by third parties, and Client indemnifies and holds TDL harmless for their usage.

2.6 TDL’s Monitoring and Termination Rights. The parties expressly recognize that TDL cannot and does not screen content provided by any Internet users of the Service, however, the parties agree that TDL has the right, but not the obligation, to remove from its server or block access to any communications and materials that TDL believes, in its sole discretion, violate any of the policies enunciated above, or any laws of any jurisdiction served by TDL. The parties also agree that TDL may, in its sole discretion, terminate Client’s account for any violation of the policies enunciated above.

3.0 TDL’s Duties.

3.1 Data Hosting Service. TDL shall store Client’s Data on TDL’s Internet server. The parties expressly recognize that Internet servers and links are susceptible to crashes and down time. TDL warrants that it shall maintain a consistent link with the Internet, but TDL cannot and does not warrant that it shall maintain a continuous and uninterrupted link.

3.2 Bandwidth. TDL agrees that it shall maintain a dedicated T1 connection to the Internet, however, TDL does not warrant any response rate or download time.

3.3 Backup. In case of server crashes, power outages, maintenance, service or improvement, TDL shall make daily back-ups on weekdays of Client’s Data. At least one back-up copy will be maintained off-site.

3.4 Maintenance. TDL may, at its own discretion, temporarily suspend all service for the purpose of repair, maintenance or improvement of any of TDL’s systems. However, TDL shall provide prior notice where it is reasonably practicable under the circumstances, and TDL shall restore service as soon as is reasonably practicable. Client shall not be entitled to any setoff, discount, refund or other credit, in case of any service outage which is beyond TDL’s control or which is reasonable in duration.

3.5 Security. The parties expressly recognize that it is impossible to maintain flawless security, but TDL shall take reasonable steps to prevent security breaches in TDL’s server interaction with Client and security breaches in TDL’s server interaction with resources or users outside of any firewall that may be built into TDL’s server. However, Client is solely responsible for preventing unauthorized access to TDL’S web site using passwords issued to Client. Client is solely responsible for any damage caused by such unauthorized access, and Client indemnifies and holds TDL harmless for any compromise of Client’s security.

3.6 Privacy. Message and data encryption is enabled on TDL’s server.

4.0 Warranties. TDL confirms and warrants that:

4.1 TDL’s Power to Enter Agreement. TDL has the right to enter into this Agreement and to grant the rights granted in it.

4.2 TDL’s Good Faith Performance. TDL shall, use reasonable efforts, comply with the terms of this Agreement.

4.3 Web Site Design

5.0 Disclaimers

5.1 Liability Limitations. The goods and services provided by TDL are provided AS IS, WITHOUT WARRANTY OF ANY KIND TO CLIENT OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; AND 7) TITLE. CLIENT AGREES THAT ANY EFFORTS BY TDL TO MODIFY ITS GOODS OR SERVICES SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY TDL WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. CLIENT FURTHER AGREES THAT TDL SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF TDL WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS GROSSLY NEGLIGENT. MODIFICATIONS MADE TO CLIENT’S DATA BY CLIENT OR ANY THIRD PARTY VOIDS ANY REMAINING EXPRESS OR IMPLIED WARRANTIES. Some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages, and, as such, some portion of the above limitation may not apply to Client. In such jurisdictions, TDL’s liability is limited to the greatest extent permitted by law.

5.2 TDL Not Liable for Delays or Defaults. TDL shall not be liable for delays or defaults in furnishing goods or services hereunder, if such delays or defaults on the part of TDL are due to:

5.3 Acts of God or of a public enemy;

5.4 Acts of the United States or any state or political subdivision thereof;

5.5 Fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes;

5.6 Embargoes, epidemics or quarantine restrictions;

5.7 Shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind;

5.8 Delays of supplier or delay of transportation for any reason;

7.2.7. Causes beyond the control of TDL 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.

5.9 Acceptance of delivery of goods or services shall constitute a waiver and release of TDL by Client for any claim for damages, setoff, discount or other liability on account of delay.

5.10 Downloading of Data or Files at Client’s Peril. The parties expressly recognize that TDL cannot and does not guarantee or warrant that files available for downloading through TDL will be free of infection, viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. Client agrees that it shall be solely responsible for implementing sufficient procedures to satisfy Client’s particular requirements for accuracy of data input and output, and for maintaining a means external to TDL for the reconstruction of any lost data. The parties also expressly recognize that the Internet contains unedited materials, some of which are unlawful, indecent, or offensive to Client, and access to such materials by Client is done at Client’s sole risk.

6.0 Termination.

6.1 Termination by TDL.

6.2 No Cause. TDL reserves the right to, and Client agrees that TDL may, terminate any and all services to Client for no cause and without any reason upon thirty (30) days’ notice.

6.3 Cause. TDL reserves the right to, and Client agrees that TDL may, cancel this Agreement and terminate any and all services to Client immediately, and without prior notice, in the event that Client fails to fulfill any material obligation contained in this Agreement. TDL RESERVES THE RIGHT TO USE SELF-HELP TO THE GREATEST EXTENT PERMITTED UNDER THE LAW, INCLUDING, BUT NOT LIMITED TO, ELECTRONIC REMEDIES.

6.4 Termination by Client. This is an annual contract for data storage service. Contract is may not be terminated by client during the annual period. All fees collected are non-refundable.

6.5 Post-Termination Rights.

6.6 Fees Owed to TDL. After termination by any party for any reason, TDL shall retain the right to recover all accrued charges due and owing by Client to TDL, and Client agrees that it waives any right it may have against TDL to offset fees payable by Client to TDL.

6.7 Client’s Continued Indemnification. Client’s indemnification of TDL, above, shall survive any termination of this Agreement.

7.0 Confidential Information.

7.1 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. Both 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 only 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.

7.2 Non-Competition. The parties recognize that each party’s Confidential Information may provide specific information relating to their respective industries, and that Confidential Information would unfairly benefit the other party if they were to engage in that business. Client agrees that, during the term of this Agreement and for a period of two (2) years following the termination or expiration of this Agreement, Client shall not undertake to design any Web Sites for provision of Data Hosting.

8. Remedies. The failure of either party to seek relief for the other party’s breach of any duty under this Agreement, shall not waive any right of the non-breaching party’s to seek relief for any subsequent breach.

9. Arbitration. Any dispute concerning the parties’ duties under this Agreement which the parties cannot resolve within thirty (30) days shall be directed to binding arbitration administered by, and pursuant to the rules of, the American Arbitration Association ("AAA") in the County of Tarrant, in the State of Texas, with all expenses being shared equally by the parties. Judgment upon any AAA award may be entered in any court having jurisdiction. Any costs incurred in the enforcement of the arbitration award shall be paid by the party against whom enforcement is sought.

10. Governing Law and Jurisdiction. The construction, validity and performance of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas, and the parties expressly waive its choice of law rules. The parties agree that venue and jurisdiction for any litigation arising out of, related to, or regarding the validity of, this Agreement shall lie in the County of Tarrant, State of Texas.

11. Notice. All notices must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested. All Notices to TDL shall be addressed and delivered to: 2502 Riverside Pkwy, STE 1216, Grand Pariarie, TX 75050. Notices transmitted orally or by electronic means shall be deemed insufficient notice.

12. Entire Agreement. This Agreement supersede any and all other agreements, either oral or in writing, between the parties with respect to the matters stated herein, and this Agreement contains all of the covenants and agreements between the parties with respect thereto. This Agreement may be amended or modified only in writing, and shall be effective only after affixation of both parties’ signatures.

13. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason whatsoever, the remaining provisions shall remain valid and unimpaired, and shall continue in full force and effect.

14. Insurance. Client agrees to obtain and maintain during the term of this Agreement all insurance coverage necessary to guard against all risks of loss that may arise out of, or relating to, this Agreement, including business interruption insurance.

15. Captions. Captions contained in this Agreement are for reference purposes only, and are not intended by either party to describe, interpret, define, broaden or limit the scope, extent or intent of the Agreement or any of its provisions.

16. Knowing Consent and Authority to Consent. The parties knowingly and expressly consent to the foregoing terms and conditions. Each signatory is authorized to enter into this Agreement on behalf of its respective party.