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Please read the following agreement carefully

MIGHTYMERCHANT WEBSITE DEVELOPMENT & HOSTING AGREEMENT
THIS AGREEMENT (the "Agreement") is hereby entered into between MightyMerchant, with offices at 3831 Main Street, Springfield, OR 97478 the "Host Provider" and the "Customer” on the following terms and conditions:
 
1.    General Undertaking.

    (a)    Setup Services.  MightyMerchant is being hired to combine and develop an assemblage of text, graphics, applications and content supplied by each party into a World Wide Web "Web Site" under this Agreement, according to the attached Statement of Work. Content for the Web Site shall be delivered by each party in proper magnetic or other acceptable format. Any significant development of applications, databases or other components shall be described in the attached Statement of Work. Customer shall provide prompt feedback during development and testing.

The Customer is responsible for reviewing and approving all content posted to the website during the intial site development as well as subsequent revisions and updates made during the life of the website.

    (b)    Operating Services.  Once the Web Site is set up, tested and approved by both parties, MightyMerchant shall, during the remaining Term, operate the Web Site on its World Wide Web server. MightyMerchant reserves the right in its sole discretion to reconfigure hardware, software and other system components and to arrange its location and method of operation as it deems necessary or helpful in meeting the requirements of this Agreement. 

2.  Prices & Payment.

    (a)    Generally.  Technical services to create, install and test the Web Site are provided at the price for labor and services agreed upon by both parties. This price assumes Customer will maintain a stable scope of work and provide prompt feedback during development and testing. The price and description for development services is specified in the attached Statement of Work and Itemized Bid. Unless otherwise agreed, the Customer shall bear the cost, if any, of content either party contributes to development of the Web Site. Ongoing operating services, including monthly web hosting costs are initially provided at the rate specified in the email price quote. (Receive a month’s free hosting with a full year’s payment in advance)   There is a one-time setup fee to be agreed upon by the Host Provider and Customer.  Operating services may be upgraded as dictated by the future growth and usage requirements of the Web Site.   Upgrades to the operating service may result in an increase of monthly fees.   No change in monthly fees will take place without prior written notification to the customer.  The operating fee shall be paid each billing period in advance promptly upon receipt of invoice. In addition, the Customer shall pay the cost of establishing and maintaining registration of any separate Internet domain name for its Web Site. 
 
Additions or changes to design or programming elements of the website, other than those specified in the attached Statement of Work, will be subject to hourly rates of $55.00 for design, and $100.00 for programming time.  An estimate for additional work will be provided to the customer on request.

    (b)    Late Payments & Taxes.  Services may be suspended or terminated on ten (10) days' notice if Customer fails to pay any amount when due. Any late payment shall be subject to costs of collection, including reasonable legal fees. Customer shall pay, indemnify and hold MightyMerchant harmless from all sales, use, gross receipts, GST, value-added, personal property or other tax or levy (including interest and penalties) imposed on the services and deliverables provided hereunder, other than taxes based on the net income or profits of MightyMerchant.

3.    Term of Agreement.  This Agreement shall commence on the date last written below. Unless terminated earlier under Section 12 ("Termination"), this Agreement shall continue in full force and effect until either party terminates by giving the other party at least thirty (30) days' advance written notice.

4.	Proprietary Rights. Each party owns and, during the Term, hereby licenses for use as an integrated part of the Web Site on a non-exclusive basis all data, databases, graphics, templates, software programs (including JAVA applets) and other material contributed by it to the development or operation of the Web Site. Subject to the preceding sentence, upon full payment by the Customer, MightyMerchant transfers ownership to Customer all new images,  HTML source code, text, and graphical content created by it in developing the Web Site itself. MightyMerchant retains ownership of all databases and software programs created by it. The Web Site shall be made available and operated on the Host System for Customer's benefit during the Term hereof. The Customer shall maintain control of the domain name, unique to the Web Site, pursuant to whatever agreements The Customer has made with their domain registrar. The customer shall maintain all trademarks or servicemarks associated with the domain.

5.    Confidentiality.

    (a)    Email Privacy.  It is MightyMerchant’s policy to respect the privacy of electronic mail stored on or transmitted through the Host System. Electronic mail messages may be encrypted by Customer or users. MightyMerchant will not intentionally disclose the content of electronic mail to anyone other than the addressee, authorized recipients or to those who provide forwarding or delivery services, without the consent of the sender, the recipient or as required by law. The MightyMerchant reserves the right to examine electronic mail if it reasonably believes it violates this Agreement, any applicable law or if disclosure is required by court order or law enforcement authorities. MightyMerchant may periodically delete unread or archival copies of electronic mail at published intervals and upon termination of this Agreement.

    (b)    Confidentiality.  Each party hereby acknowledges that it may be exposed to confidential and proprietary information belonging to the other party or relating to its affairs, including, without limitation, technical information and development techniques, business and financial information, visitor lists and other information designated by a party as confidential or proprietary. Confidential Information does not include (i) information already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the party, or (iii) information received by a party from a third party who was free to disclose it. Each party agrees that during the Term and at all times thereafter it shall not use, commercialize or disclose the other party's Confidential Information except in performing its obligations under this Agreement. Each party shall use the same degree of care in safeguarding the other party's Confidential Information as it uses in safeguarding its own Confidential Information, but in no event shall it use less than due diligence and care. Neither party shall alter or remove from any Confidential Information of the other party any proprietary, copyright, trademark or trade secret legend.

6.    Nonsolicitation.  During the Term and for a period of one (1) year thereafter, Customer agrees not to hire, solicit nor attempt to solicit the services of any employee or subcontractor of MightyMerchant without the prior written consent of MightyMerchant.

7.    Injunctive Relief.  The parties acknowledge that violation by one party of the provisions of Section 4 ("Proprietary Rights"), Section 5 ("Confidentiality") or Section 6 ("Nonsolicitation") would cause irreparable harm to the other party not adequately compensable by monetary damages. In addition to other relief, it is agreed that temporary and permanent injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.

8.    Force Majeure.  The MightyMerchant is excused from any failure or delay in performance of responsibilities otherwise imposed by this Agreement for any cause beyond its reasonable control. Such causes include, without limitation, fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, network failure, transportation, utilities or necessary supplies, governmental action, computer viruses and incompatible or defective equipment, software or services not supplied by MightyMerchant. Nothing herein enlarges any warranty or diminishes any disclaimer provided in Section 10 ("Warranties").

9.    Regulation of Certain Content.  MightyMerchant is a mere distributor and is relying on Customer to prescreen or editorially control the content of Customer's Web Site. MightyMerchant reserves the right to request the removal of information in the Web Site brought to its attention which it deems detrimental to the Host System or any person. Customer agrees not to include in the Web Site any material which violates or infringes the rights of any person or which a reasonable person would consider abusive, profane or offensive, which is defamatory or harassing, or which violates or encourages others to violate any applicable law. Customer will not disseminate so-called "chain letters," pornographic or obscene movies or graphic images. To protect itself, MightyMerchant may without liability actively cooperate with and furnish identifying and supporting information to any person likely to be harmed by Customer's violation of these provisions and to any law enforcement agency serving a warrant or subpoena on the MightyMerchant.

10.    DMCA Compliance.  MightyMerchant is in full compliance with the Digital Millenium Copyright Act (DMCA). The Customer is responsible for adhering to state and federal copyright laws and for understanding the dispute resolution procedures as specified in the DMCA.

11.    Warranties.  The following provisions are subject to Section 11 ("Limitation of Liabilities").

    (a)    Noninfringement Warranty.  Customer warrants that any technology, information or material (other than MightyMerchant's own material) distributed through the Web Site will not infringe or misappropriate any copyright, trademark, patent, or the trade secrets of any third persons, or otherwise violate this Agreement or any applicable law. Customer will defend, indemnify and hold MightyMerchant harmless from all liability and expense (including attorney fees) arising from any claim to the contrary.

    (b)    Disclaimer. All services, technology or other deliverables are supplied by MightyMerchant strictly on an "as is" and "as available" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with specifications, reliability or functionality. Customer accepts all risk concerning suitability, use, performance or nonperformance. MIGHTYMERCHANT MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION AND FITNESS FOR A PARTICULAR PURPOSE. 

12.    Limitation of Liabilities.  The following provisions are a material condition of this Agreement and reflect a fair allocation of risk:

    (a)    Remedies.  Customer agrees that if the MightyMerchant violates any warranty or other provision of this Agreement, and MightyMerchant determines that repair or other corrective action is not economically or technically feasible, Customer's sole and exclusive remedy will be to obtain a refund of amounts paid by Customer to MightyMerchant for services rendered hereunder during the previous twelve (12) months.

    (b)    Liabilities.  MIGHTYMERCHANT IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE PRICE PAID BY CUSTOMER FOR SERVICES HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO ANY CLAIM. EXCEPT FOR VIOLATIONS BY CUSTOMER OF SECTION 4 ("PROPRIETARY RIGHTS"), SECTION 5 ("CONFIDENTIALITY"), OR SECTION 6 ("NONSOLICITATION"), NEITHER PARTY IS LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS FEES) EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.

13.  Unilateral Service Revocation.  In the event that MightyMerchant at any time believes that the service is being utilized for unlawful purposes by the client or in contravention with the terms and provisions herewith, MightyMerchant may immediately discontinue such service to the client without liability. This will include failure to pay, adult content and/or unsolicited email. MightyMerchant shall have the right to immediately terminate Service to client for any violation of this agreement.

14.    Termination.  Customer may suspend or terminate this Agreement if MightyMerchant materially breaches any provision and fails within ten (10) days of written notice to correct such default or commence corrective action reasonably acceptable to the aggrieved party and proceed with due diligence to correction. Termination shall have no effect on the parties' rights and obligations under Section 4 ("Proprietary Rights"), Section 11 ("Warranties"),  or Section 12 ("Limitation of Liabilities"). For a period of ninety (90) days following termination, the MightyMerchant shall upon request include in any Internet web page that it continues to operate at the same domain a public notice of Customer's forwarding URL address and, for a reasonable fee, provide a hyperlink connecting visitors to Customer's new Web Site.

15.    Disputes, Choice of Law.  Except actions for certain injunctive relief authorized under Section 7 ("Injunctive Relief") which may be brought in a court of competent jurisdiction at any time, the parties agree that all disputes shall be submitted to a single arbitrator for nonbinding arbitration under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall be limited to remedies otherwise available in court and shall include a written explanation of the decision. If the parties are still unable to reconcile their differences after the arbitrator issues its award the dispute may then be taken to court by either party. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES AND OREGON, AND ANY ACTION SHALL BE INITIATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION IN SUCH DESIGNATED STATE.

16.    Web Site Content.	MightyMerchant maintains the option to place a "Designed & Hosted by" link at the bottom of the introduction page of Customer's Web Site in a non-intrusive manner. 

17.    Miscellaneous.  This document and any attachments incorporated by reference constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all other communications, whether written or oral. This Agreement may be modified or amended only by a writing signed by the party against whom enforcement is sought. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions. Headings are for reference purposes only and have no substantive effect. Each party and its people are independent contractors in relation to the other party with respect to all matters arising under this Agreement. 

IN WITNESS WHEREOF, for adequate consideration and intending to be legally bound, the parties hereto have caused this Agreement to be executed by their duly authorized representatives.
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