Service Plan Terms
DK DESIGN & DEVELOPMENT CUSTOMER AGREEMENT
THIS DK DESIGN & DEVELOPMENT CUSTOMER AGREEMENT (“Customer Agreement”) sets forth the terms and conditions under which a person uses the DK DESIGN & DEVELOPMENT website and the services provided by DK DESIGN & DEVELOPMENT, a Hawaii sole proprietorship with a mailing address of 505 Front Street, Suite 224, Lahaina, Hawaii 96761 (“Contractor”). An individual or entity utilizing the DK DESIGN & DEVELOPMENT website and/or the services is hereinafter referred to as “Customer” (Contractor and Customer individually herein a “Party” and, collectively, the “Parties”).
1. Description of Services/Binding Agreement. Contractor is in the business of providing services for the electronic maintenance of websites and similar forms and instruments for those who desire to utilize such services in connection with their business operations (the “Services”). Please read this Customer Agreement carefully. By accessing the website and/or utilizing the Services, Customer accepts and agrees to be bound by each and all of the terms and conditions set forth in this Customer Agreement.
2. Registration. If you desire to utilize the Services, you will be required to register your billing information for charges arising out of your use of the Services. By completing such registration and providing such billing information, you warrant and represent that (a) your use of the Services will be for commercial purposes, and not for family, household, or other consumer purposes, (b) the information provided to Contractor is complete and accurate, (c) you are an authorized signatory and/or customer with respect to any account to which you request that charges be billed or posted, and (d) you are at least eighteen (18) years of age. You agree that access to the DK DESIGN & DEVELOPMENT website and its content, and utilization of the Services, will be limited to the registered Customer only.
3. Maintenance of Websites. DK DESIGN & DEVELOPMENT has expressly agreed to maintain on Customer’s behalf their website and similar digital assets (“Website”), and provided that Customer’s account remains active and in good standing, DK DESIGN & DEVELOPMENT agrees to provide web-based technical support, security updates, content updates, and consulting services in a manner consistent with generally accepted industry standards.
4. Payment by Customer. All amounts due and payable to DK DESIGN & DEVELOPMENT in exchange for the Services, together with any ancillary fees, taxes, and expenses (collectively, the “Charges”) will be billed automatically to Customer’s credit card or bank account registered with Contractor on or before the tenth (10th) day of each month for the Charges incurred for that month. Customer also shall be solely responsible for the payment of any service fees, insufficient funds fees, or similar fees incurred by Contractor on account of rejection of Charges by Customer’s credit card or other account. In the event Customer fails to pay any and all Charges when due Contractor shall have the right, but not the obligation, to terminate this Customer Agreement and discontinue provision of the Services immediately.
5. Term and Termination. The term of this Customer Agreement shall be one (1) year, and shall be automatically renewed for successive one (1) year periods thereafter unless sooner terminated as provided in this Customer Agreement. Following the first (1st) one (1) year term, Customer may terminate this Customer Agreement without cause upon sixty (60) days prior written notice to Contractor. Customer also may terminate this Customer Agreement for cause following thirty (30) days written notice to Contractor of an alleged breach and Contractor’s failure to cure such breach within such thirty (30) day period or, in the case of a breach which cannot be cured within thirty (30) days, Contractor’s failure to commence and faithfully pursue cure of such breach. Except for termination based on Customer’s failure to pay any and all Charges when due (which shall be grounds for immediate termination as set forth in Section 4 above). Contractor reserves the right to terminate this Customer Agreement at any time (including during the first one (1) year term), with or without cause, upon ten (10) days prior written notice to Customer. Customer expressly acknowledges and agrees that Customer shall remain obligated to remit to Contractor payment for all Charges for Services provided after any notice of termination but before the effective date of termination, regardless of cause and without regard to the reason for such termination.
7. Disclaimer of Warranties. DK DESIGN & DEVELOPMENT (INCLUDING ITS THIRD PARTY SUPPLIERS AND LICENSORS) PROVIDES ACCESS TO THE DK DESIGN & DEVELOPMENT WEBSITE & SERVICES ON AN “AS IS,” AS AVAILABLE BASIS, WITH ALL FAULTS, AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, COMPATIBILITY OF SOFTWARE PROGRAMS, INTEGRATION, SECURITY, OR THOSE WARRANTIES WHICH MAY ARISE BY COURSE OF DEALING OR COURSE OF TRADE. DK DESIGN & DEVELOPMENT DISCLAIMS ANY AND ALL WARRANTIES FOR LACK OF VIRUSES OR OTHER DISABLING CODE OR CONDITION, AND DOES NOT WARRANT THE INFORMATION, SERVICE, SOFTWARE, CONTENT AND/OR FEATURES AVAILABLE THROUGH THE WEBSITE WILL BE UNINTERRUPTED, ERROR FREE, OR AVAILABLE 24 HOURS PER DAY, 7 DAYS PER WEEK. CUSTOMER ASSUMES ALL RISKS ARISING OUT OF THE USE, QUALITY, ACCURACY OR PERFORMANCE OF THE DK DESIGN & DEVELOPMENT WEBSITE, AND FOR ENSURING THAT APPROPRIATE BACK-UP MEASURES ARE IN PLACE IN THE EVENT OF FAILURE OR UNAVAILABILITY OF THE WEBSITE AND/OR SERVICES.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW: IN NO EVENT WILL THE CONTRACTOR BE LIABLE FOR (i) ANY SPECIAL, DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF PROGRAMS OR INFORMATION) OR ANY OTHER DAMAGES ARISING OUT OF OR RELATED TO THE AVAILABILITY, USE, RELIANCE ON, OR PERFORMANCE OF THE DK DESIGN & DEVELOPMENT WEBSITE, THE PROVISION OF OR FAILURE TO PROVIDE THE WEBSITE OR THE SERVICES, LOSS OF DATA, ACCESS OR INABILITY TO ACCESS OR USE THE WEBSITE OR USE AND RELIANCE ON INFORMATION, CONTENT, OR SERVICES AVAILABLE ON OR THROUGH THE WEBSITE INCLUDING VIRUSES ALLEGED TO HAVE BEEN OBTAINED, OR INVASION OF PRIVACY FROM OR THROUGH THE WEBSITE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; OR (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER DYSFUNCTION OF, DESTRUCTIVE PROPERTIES OF, OR NON-PERFORMANCE OF THE WEBSITE AND/OR SERVICES. IN NO EVENT SHALL ANY LIABILITY OF OR AWARD OF DAMAGES AGAINST CONTRACTOR FOR ANY CLAIM EXCEED THE TOTAL CHARGES (EXCLUDING SALES TAX, USE TAX, AND SIMILAR ASSESSMENTS) ACTUALLY PAID TO CONTRACTOR BY CUSTOMER.
9. Governing Law/Venue/Dispute Resolution. This Customer Agreement is deemed to be made and entered into in the State of Hawaii and shall be governed by the laws of the State of Hawaii, without regard to its conflicts of laws principles. Any action shall be brought and maintained exclusively in the state or federal courts in the State of Hawaii, and Customer hereby consents to the exclusive jurisdiction of such courts. Customer, after consulting or having had the opportunity to consult with counsel, knowingly, voluntarily, and intentionally waives any right Customer may have to a trial by jury in any litigation based upon or arising out of this Customer Agreement (and any other related agreement or instrument), the Services, the website, or any course of conduct, dealing, statements (whether oral or written), or actions of either Contractor or Customer, including their respective employees, officers, agents, successors, and assigns. Customer shall not seek to consolidate, by counterclaim or otherwise, any action in which a jury trial has been waived with any other action which a jury trial cannot be or has not been waived. These provisions shall not be deemed to have been modified in any respect or relinquished except by a written instrument executed by Contractor. Customer agrees that due to the nature of Contractor’s business, monetary damages are inadequate to protect Contractor from any threatened or actual breach of this Customer Agreement, any breach will cause irreparable harm to Contractor, and Contractor shall be entitled to injunctive relief to restrain any breach or threatened breach, without having to prove the inadequacy of monetary damages or irreparable harm independently. In the event of any breach of this Customer Agreement by Customer, in addition to such other sums as may be awarded to Contractor, Contractor shall be entitled to recover its reasonable attorney’s fees and expenses, whether incurred prior to or after filing of suit. The naming of a specific remedy shall not preclude the pursuit of any other remedy that may be available at law or in equity.
13. Miscellaneous. Customer shall not assign this Customer Agreement without the prior, written consent of Contractor. No delay in exercising any right, power, or privilege under this Customer Agreement shall operate as a waiver of such right, power, or privilege or any other right, power, or privilege. No provision of this Customer Agreement may be waived except in writing signed by the Party to be bound by such waiver. If any provision of this Customer Agreement is held to be unenforceable, the other provisions will remain in effect and, if possible, the offending provision modified to the slightest degree necessary to make such provision enforceable, remaining as close as possible to the original provision. This Customer Agreement does not create a partnership, joint venture, or any similar relationship between Contractor and Customer. Any notices hereunder shall be given in writing by personal delivery, via facsimile with transmission confirmation, via recognized overnight delivery service with delivery confirmation, or by first-class, United States mail, registered or certified, postage prepaid, with return receipt requested. Contractor reserves the right to modify or amend this Customer Agreement at any time upon written notice thereof to Customer and Customer’s opportunity to accept or reject such modified terms and conditions. In the event that Customer rejects such modified terms and conditions, Contractor may elect to terminate this Customer Agreement, in Contractor’s sole and exclusive discretion, at which time all Charges shall become immediately due and payable.
IN WITNESS WHEREOF, the Parties have executed this Customer Agreement as of the date this document is agreed upon and submitted.
DK DESIGN & DEVELOPMENT – CONTRACTOR