Terms of Services
This website www.bearwebdesign.com (‘the Website’, ‘our Website’) are owned and operated by Bear Web Design, LLC with our registered office located at 2622 Bluefield Avenue, Nashville, TN 37214 (‘Bear Web Design’, ‘our’, ‘we’ or ‘us’.)
Bear Web Design aims to provide a wide range of Internet services to our customers that include but are not limited web design & development, website management, hosting & support and professional services associated with website management.
This agreement sets out the terms and conditions upon which we will provide the products and services detailed on our Website to you. Your use of our services means that you accept, and agree to abide by all the terms set out here.
1. Definitions In this agreement, unless the context otherwise requires:
- ‘the Charges’ means the charges to be paid by the Customer for the Services as specified in the schedule;
- ‘confidential information’ means all business, technical, financial or other information created or exchanged between the parties;
- ‘the Contact Details’ means the contact details for the parties including postal address, fax number and email address, and the names of the parties’ respective representatives specified in the schedule;
- ‘the Content’ means all text, graphics, logos, photographs, images, moving images, sound, illustrations and other material and related documentation featured, displayed or used in or in relation to the Website;
- ‘the Customer’ means you the person or entity ordering a product or service from us via our Website;
- ‘the Customer Software’ means the software used in the Website owned by the Customer, or licensed to him by a third party or Bear Web Design, but shall not include Bear Web Design’s Software or platform;
- ‘DNS’ stands for domain name system;
- ‘expert’s decision’ means a decision of an expert made in accordance.
- ‘the Initial Term’ means the initial term for the supply of the Services as specified in the schedule;
- ‘intellectual property rights’ means patents, trade marks, design rights, applications for any of the foregoing, copyright, topography rights, database rights, rights in know-how, trade or business names and other similar rights or obligations, in each case whether registrable or not in any country;
- ‘an IP address’ stands for an internet protocol address;
- ‘ISP’ stands for internet service provider;
- ‘the Services’ means the services provided to the Customer by Bear Web Design as specified in the schedule;
- ‘the Software’ means the Customer Software and Bear Web Design Software;
- ‘Bear Web Design Network’ means that part of the Internet that is directly under the control of Bear Web Design;
- ‘Bear Web Design’ Software’ means the software and related documentation owned by or licensed to Bear Web Design including any upgrades or related documentation, as specified in the schedule;
- ‘the Terms of Payment’ means the terms of payment of the Charges specified in the schedule and/ or as set out on our Website;
- ‘upgrades’ includes all updates, upgrades, enhancements, corrections, modifications, new releases, new versions and bug fixes in object code form only from time to time issued or made available by Bear Web Design;
- ‘URL’ stands for universal resource locator;
- ‘virus’ means a computer program that copies itself or is copied to other storage media, including without limitation magnetic tape cassettes, memory chips, electronic cartridges, optical discs and magnetic discs, and destroys, alters or corrupts data, causes damage to the user’s files or creates a nuisance or annoyance to the user and includes without limitation computer programs commonly referred to as ‘worms’ or ‘trojan horses’;
- ‘visitor’ means a third party who has accessed the Website;
- ‘the Website’ means the website identified in the schedule;
- ‘the Website Maintenance Services’ means the services to be provided by Bear Web Design to the Customer in relation to the Website as detailed in the schedule.
2. Interpretation In this agreement unless otherwise specified:
- reference to a party is reference to a party to this agreement and includes its permitted assignees and the respective successors in title to substantially the whole of its undertaking;
- reference to a person includes any person, individual, company, firm, corporation, government, state or agency of a state, or any undertaking whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists;
- words denoting the singular include the plural and vice versa and words denoting any gender include all genders;
- reference to a numbered clause, paragraph or schedule is to that clause, paragraph or schedule of this agreement;
- ‘this agreement’ shall, unless the context otherwise requires, mean and include the schedule;
- ‘includes’ and ‘including’ mean includes and including without limitation; and
- the index to and the headings in this agreement are for information only and shall be ignored in construing it.
- Subject to the terms and conditions of this agreement, Bear Web Design shall provide the Services to the Customer.
- The Customer shall deliver the Website and the Customer Software to upload on a server provided by Bear Web Design in such format that Bear Web Design shall specify.
4. Charges and Payments
- The Customer shall pay the Charges to Bear Web Design according to the Terms of Payment.
- The Customer agrees to automatic and recurring billing for The Services and that Payment Details may be stored in a secure environment for future payments. Customer payment can also be made by the customer by credit/debit card and or corporate check.
- The Customer agrees that where a special price, discount price or introductory rate is provided this is applicable for the first invoice and initial term only. The Customer agrees The Services will renew automatically at the current recurring rate.
- The Charges shall be payable in either US Dollars according to the Terms of Payment.
- The Customer may request a cancellation of The Services at any time via e-mail or phone call request to Bear Web Design, or via billing support ticket or help desk ticket within the Bear Web Design customer portal. No refund or credit will be provided for any unused portion of The Services in the event of cancelation. By way of example if the Customer signs up on an annual basis and cancels 8 months into the 12 month cycle; the Customer shall not be refunded or credited for the remaining 4 months.
- There must be an explicit cancellation request, from the customer, for each active service that they wish to discontinue.
- The Customer agrees that the Charges for domain name renewals may vary from the original registration price.
- Bear Web Design may charge the Customer interest in respect of late payment of any sum due under this agreement, at a rate of 1.5% per month from the due date for payment until payment is received.
- All invoices must be paid within the time period stipulated on the invoice. If payment is not made in full and (30) days have elapsed from and including the date payment was due, Bear Web Design reserves the right to suspend the Services and after a further thirty (30) days terminate the Services and delete the Customer’s Software, Content and any other data that forms part of the Services.
- In the event of any suspension of the Services due to the Customer being in billing default, the Customer agrees that automatic and recurring billing shall continue throughout the suspended period.
- The Customer agrees to be held liable for all outstanding invoices and agrees Bear Web Design has authorization to charge the Payment Details for any outstanding invoices at any time.
- In the event of non-payment for a domain name renewal, the Customer agrees that Bear Web Design reserves the right to suspend other portions of the Services until payment is received including forfeit ownership of the customers domain name.
5. IP Addresses
- The Customer acknowledges that he has no right, title or interest in the IP address allocated to him, and that any IP address allocated to him is allocated as part of the Services and is not portable or otherwise transferable by the Customer in any manner whatsoever.
- If an IP address is renumbered or reallocated by Bear Web Design, Bear Web Design shall use its reasonable endeavors to avoid any disruption to the Customer.
- The Customer agrees that he will have no right, title or interest to the IP address upon termination of this agreement, and that the acquisition by the Customer of a new IP address for the Website following termination of this agreement shall be the exclusive responsibility of the Customer.
6. Software license and rights
- If and to the extent that the Customer requires use of Bear Web Design Software in order to use the Services, Bear Web Design grants to the Customer a royalty-free, world-wide, non-transferable, non-exclusive license to use Bear Web Design Software in object code form only. The Customer has the right to authorize its employees, agents and third party consultants and contractors to use Bear Web Design Software as aforesaid provided that such use is consistent with the terms of this agreement.
- The Customer grants to Bear Web Design a royalty-free, worldwide, non-exclusive license to use the Content and the Customer Software in relation to its obligations under this agreement in connection with the provision of the Services.
- This agreement does not:
- transfer or grant to the Customer any right, title, interest or intellectual property rights in Bear Web Design Software;
- transfer or grant to Bear Web Design any right, title, interest or intellectual property rights in the Customer Software.
- The Customer agrees that he will not himself, or through any parent, subsidiary, affiliate, agent or other third party:
- copy Bear Web Design Software except as expressly permitted under this agreement or by law;
- sell, lease, license or sublicense Bear Web Design Software or the documentation connected with it; or
- use any confidential information of Bear Web Design.
- If the Customer is permitted to make any copies of Bear Web Design Software, the Customer must reproduce all proprietary notices of Bear Web Design, if any, on the copies.
7. Service levels – standards and interruptions and backups
- The Customer accepts that there will inevitably be some downtime and outages, including emergency and previously scheduled windows for router, switch or server maintenance.
- The Customer shall ensure that it maintains adequate backups of the Customer Software and any other information or data that it uploads to the Bear Web Design computers and servers.
- The Customer shall ensure that it does not exceed the bandwidth or computer memory stipulations which Bear Web Design determines in its sole discretion and notifies to the Customer from time to time. Further if the size of an email mailing list used by the Customer exceeds any agreed or stipulated size, level or frequency and Bear Web Design determines in its sole discretion that suspension is necessary to protect all and any internet solutions provided by Bear Web Design from time to time, Bear Web Design will proceed to suspending its Services to the Customer. At all times the Customer must adhere to the Acceptable Use Policy, any breaches of the Acceptable Use Policy allow Bear Web Design to suspend and / or terminate the Services as Bear Web Design in its sole discretion deems necessary.
8. Website content and data
- The Customer shall not distribute in the Content on the Website any material or other information that:
- infringes any intellectual property rights;
- is in breach of any law, statute, or regulation;
- is defamatory, libelous, unlawfully threatening or harassing;
- is obscene, pornographic or indecent;
- contains any viruses or other computer programs intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any personal information; or
- is not solicited.
- For the avoidance of doubt, Bear Web Design does not monitor, and will have no liability for the contents of, any communications transmitted by virtue of the Services.
- The Customer grants to Bear Web Design a non-exclusive, royalty-free licence, during the term of this agreement, to use, store and maintain the Content on a server for the purposes of providing the Services in accordance with this agreement. Bear Web Design may make such copies as may be necessary to perform its obligations under this agreement, including backup copies of the Content. Upon the termination or expiration of this agreement, Bear Web Design shall (within 1 year of termination) destroy the Content and other materials provided by the Customer.
- This agreement does not transfer or grant to Bear Web Design any right, title, interest in any intellectual property rights in the Content, except for the rights expressly granted in this agreement.
- Bear Web Design warrants to the Customer that all services provided to the Customer by Bear Web Design shall be provided with due care and skill.
- The Customer warrants to Bear Web Design that:
- Bear Web Design’s use of the Content or the Customer Software in accordance with this agreement will not infringe the intellectual property rights of any third party anywhere in the world;
- it has the rights, power and authority to license the Content and the Customer Software to Bear Web Design as set out in clause 6.2; and
- the Software is all the software used in the Website.
- Save as expressly set out in this agreement all representations, warranties, terms and conditions whether oral or written, express or implied by law, custom, statute or otherwise and including but not limited to satisfactory quality or fitness for any particular purpose are excluded. In particular and without prejudice to that generality, whilst Bear Web Design shall take reasonable care to avoid passing on any viruses or introducing them to the Customer Bear Web Design shall not be liable to the Customer as a result of any virus introduced or passed on to him. The Customer is advised to check the Website regularly for viruses.
- Both parties shall keep any confidential information relating to the other confidential. The obligations of the parties under all provisions of this clause shall survive the expiry or the termination of this agreement for whatever reason for a further period of 2 years from and including expiry or termination.
- To the fullest extent permitted by law Bear Web Design shall not be liable for any breach of its contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this agreement.
- Bear Web Design shall not be liable to the Customer for any indirect or consequential loss Customer may suffer even if the loss is reasonably foreseeable or Bear Web Design has been advised of the possibility of the Customer incurring it.
- To the fullest extent permitted by law in the event that Bear Web Design is found liable under clauses 11.1 and 11.2 under this Agreement, Bear Web Design’s liability shall be limited to the sum of $250 USD.
12. Term and termination
- This agreement shall commence on the date set out in the schedule and shall continue for the Initial Term and thereafter the Customer may cancel by submitting an e-mail cancellation request and/or phone call request. Upon termination the Customer’s Software, Content and any other data shall be deleted within 1 year of termination. Bear Web Design may cancel this agreement after the Initial Term by providing the Customer with 1 months written notice of the same. If the Customer is in breach of any clause of this agreement or any clause of the Acceptable Use Policy during the Initial Term then Bear Web Design reserves the right to immediately terminate this agreement upon provision of written notice. If the agreement is terminated in this way then the Customer will not be due a refund or service credit of any kind.
- In any event either party may terminate this agreement with immediate effect by written notice to the other party on or at any time after the occurrence of any of the following events:
- the other party being in breach of an obligation under this agreement and, if the breach is capable of remedy, failing to remedy the breach within 28 days after receipt of a written notice of the breach and requiring its remedy;
- the other party passing a resolution for winding up, a court of competent jurisdiction making an order for the other party’s winding up or the presentation of a petition for the other party’s winding up which is not dismissed within seven days (other than, in each case, for the purposes of solvent amalgamation or reconstruction where the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the other party’s obligations under this agreement);
- the making of an administration order in relation to the other party or the appointment of a receiver over or an encumbrancer taking possession of or selling an asset of the other party; or
- the other party making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally.
- Termination of this agreement for whatever reason shall not affect:
- the accrued rights and liabilities of the parties arising in any way out of this agreement as at the date of termination and in particular but without limitation the right to recover damages against the other; or
- provisions expressed to survive this agreement, which shall remain in full force and effect.
- Upon termination Bear Web Design shall be permitted to disable your access to its Services and for it to delete any data stored on its computer systems.
- The Customer shall not assign, transfer, or sub-contract the benefit and/ or burden of this agreement, make it the subject matter of a trust or in any other manner make it over to any third party without the prior written consent of Baer Web Design, which consent shall not be unreasonably withheld.
- Bear Web Design may assign, transfer, or sub-contract the benefit and/or burden of this agreement, make it the subject matter of a trust or in any other manner make it over to any third party.
14. Dispute Costs
- Each of the parties shall be responsible for its respective legal and other costs incurred in relation to the preparation of this agreement.
15. Conflict of terms
- A waiver of any term, provision or condition of this agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which it is given.
- No failure or delay on the part of any party in exercising any right, power or privilege under this agreement shall operate as a waiver of it, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise of it or the exercise of any other right, power or privilege.
- No breach of any provision of this agreement shall be waived or discharged except with the express written consent of the parties.
- If any provision of this agreement is or becomes invalid, illegal or unenforceable in any respect under the law of any jurisdiction, whether pursuant to any judgment or otherwise:
- the validity, legality and enforceability under the law of that jurisdiction of any other provision; and
- the validity, legality and enforceability under the law of any other jurisdiction of that or any other provision, shall not be affected or impaired in any way.
- If any provision of this agreement is held to be void or declared illegal, invalid or unenforceable for any reason whatsoever, that provision shall be divisible from this agreement and shall be deemed to be deleted from it and the validity of the remaining provisions shall not be affected. If any such deletion materially affects the interpretation of this agreement, the parties shall use their best endeavors to negotiate in good faith with a view to agreeing a substitute provision as closely as possible reflecting the commercial intention of the parties.
- The rights and remedies provided for by this agreement are cumulative with and not exclusive of any rights or remedies provided by law.
- Without prejudice to any other rights or remedies of the parties, each party acknowledges for the benefit of the other that damages might not be an adequate remedy for any breach of the provisions of this agreement and that, accordingly, either party shall be entitled without proof of special damage to the remedies of injunction and specific performance and other equitable remedies for any threatened or actual breach of the provisions of this agreement by the other.
- Any notice, demand or other communication given or made under or in connection with the matters contemplated by this agreement shall be in writing and shall be delivered personally or prepaid air mail in the case of Bear Web Design to the address set out at the head of this agreement and in the case of the Customer to the address details of which shall be provided on signing up and subscribing to our Services. Alternatively notices can be served through the Bear Web Design helpdesk area on our website.
- Notices shall be deemed to have been duly given or made as follows:
- if personally delivered, upon delivery at the address of the relevant party;
- if sent by first class post, two business days after the date of posting;
- if sent by air mail, 5 working days after the date of posting; and
- if sent by fax, when despatched;
- if via the Bear Web Design Helpdesk area on our Website, 1 business day after sending.
- Provided that if, in accordance with clause 22.2, any such notice, demand or other communication would otherwise be deemed to be given or made after 1700 hours, it shall be deemed to be given or made at the start of the next business day.
- A party may notify the other party to this agreement of a change to its name, relevant addressee, address or fax number for the purposes of the above clause provided that such notification shall only be effective on:
- the date specified in the notification as the date on which the change is to take place; or
- if no date is specified or the date specified is less than 5 business days after the date on which notice is given, the date falling 5 business days after that date.
20. Entire agreement
- This agreement embodies and sets forth the entire agreement and understanding of the parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this agreement. Neither party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this agreement save for any representation made fraudulently.
21. Relationship of the parties
- Nothing in this agreement and no action taken by the parties pursuant to this agreement shall constitute, or be deemed to constitute, the parties a partnership, association, joint venture, the agents of each other or any other co-operative entity.
- The Customer grants Bear Web Design a non-exclusive, worldwide, royalty-free, fully paid-up license to use the Customer’s trademarks, trade names or logos for the purposes of being listed as a customer of the Services by Bear Web Design in marketing materials.
22. Data Protection
- Bear Web Design’s Privacy Statement is included in this agreement and may be changed at any time for any reason.
- The Customer agrees to comply with appropriate data protection laws and regulations.
23. Governing law and jurisdiction
- This agreement, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to it or its formation, shall be governed by and construed in accordance with the laws of the United States.. The parties irrevocably submit to the exclusive jurisdiction of the courts of United States to hear and determine any suit, action or proceedings or settle any disputes arising out of or in connection with this agreement and to enforce any judgment against their respective assets.