DATABASE MANAGEMENT AND SERVICES AGREEMENT
This Database Management and Internet Services Agreement ("Agreement") is made as of this __ day of _________, 20__ (the "Effective Date"), by and between LINEAR PUBLISHING, LLC, an Indiana limited liability company ("Linear") and ___________________ ("Subscriber").
1. Linear is developer and owner of a database management system designed for use by publications and periodicals (such system, as the same may be modified and changed from time to time and at any time, is referred to herein as the "Linear System").
2. Subscriber desires to purchase Services (as hereinafter defined I Section 1d) from Linear. Linear is willing to sell such Services to Subscriber, subject to and in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises set forth herein, Subscriber and Linear hereby agree as follows:
1. Defined Terms. As used herein, the term: (a) "Advertisement" shall mean a graphic file supplied by Linear in a format size that complies with the requirements from time to time specified by Linear that can be displayed on standard World Wide Web HTML browsers, can be selected by users as a Link and is hosted at a Subscriber Web site; (b) "Linear Server" shall mean the file server owned and operated by Linear at which the Subscriber Database (as hereinafter defined in this paragraph) and Subscriber Web site are hosted; (c) "Link" shall mean a World Wide Web compatible request for information originating from a server other than the Linear Server; (d) "Services" shall mean the services provided by Linear to Subscriber from time to time and at any time, as the same shall be modified or changed in accordance with the terms of this Agreement, including, without limitation, those Services identified on Exhibit A attached hereto and made a part hereof for all purposes; (e) "Subscriber Data" shall mean information entered by or on behalf of Subscriber in the Subscriber Database from time to time; (f) "Subscriber Database" shall mean a database maintained on the Linear Server that contains the Subscriber Data; (g) "Subscriber Web site" shall mean the World Wide Web site provided by Linear for the benefit of Subscriber, if any, together with any and all HTML files located on the Linear Server that pertain specifically to such World Wide Web site (and such term shall include all such World Wide Web sites, to the extent Linear provides more than one for and on behalf of Subscriber); and (h) "Subscribers Designated E-Mail Address" shall mean the e-mail address for Subscriber set forth in Paragraph 13 of this Agreement.
2. Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for a period of one (1) year (the "Initial Term"). Thereafter this Agreement shall renew for successive one-year periods, each such period being referred to herein as a "Renewal Term." The Initial Term and Renewal Term are referred to herein collectively as the "Term." Either party must notify the other in writing of its intention not to renew this Agreement at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term, as the case may be.
3. Services/Selection by Subscriber. During the Term, Linear shall provide to Subscriber such of the Services as are selected by Subscriber from time to time, in accordance with and subject to the terms of this Agreement.
4. Pricing. Prices charged by Linear for Services in effect on the Effective Date are set forth on Exhibit A. Linear reserves the right to change the prices it charges for Services from time to time and at any time upon notice to Subscriber, such changes to take effect immediately upon notice thereof to Subscriber; provided, however, with respect to those Services identified on Exhibit A as "Base Services" no price increase shall become effective until the first (1st) day of the Renewal Term, if any, following notification of such price increase.
5. Additional Consideration. As additional consideration for providing the Services to Subscriber, during the Term, Linear shall be entitled to place a Link ("Footer Link") that directs the user to Linears home page at the bottom of each page on each Subscriber Web site at all times that identifies Linear as the author and host of the Subscriber Web site.
6. Obligations of Linear. During the Term, Linear shall:
(a) Maintain Subscriber Database. Use commercially reasonable efforts to maintain the availability of the Subscriber Database and continuous Internet access by Subscriber to each Subscriber Web site and Subscriber Database; provided, however, Linear shall have no liability, directly or indirectly, to Subscriber or any third person, except as otherwise provided in this Agreement, on account of (i) downtime with respect to the Linear System, (ii) the failure of the Subscriber Database to function properly, (iii) loss of Subscriber Data, (iv) erroneous display of Subscriber Data, or (v) loss of or interruption of Internet access to the Linear Server or any Subscriber Web site. Linear reserves the right to modify, enlarge, add to or change the design, appearance or functionality of any Subscriber Database or Subscriber Web site from time to time and at any time without notice to Subscriber in the exercise of its sole discretion when it reasonably believes such measures will enhance or improve the appearance, quality or functionality of any Subscriber Database or Subscriber Web site, as the case may be;
(b) Maintain Domain Name. Maintain the existence of each domain name purchased by Subscriber and that pertains to a Subscriber Web site; provided, however, all costs associated with procuring and continuing such domain name(s) shall be borne by Subscriber;
(c) Reasonable Security Measures. Undertake to provide reasonable security measures and precautions within the Linear Server to safeguard the integrity of the Subscriber Data and prevent unauthorized access to the Subscriber Database and Subscriber Data; provided, however, under no circumstances shall Linear have any liability, directly or indirectly, in connection with any damage or loss to Subscriber arising out of or by virtue of unauthorized access to the Subscriber Database or Subscriber Data, excepting only on account of Linears gross negligence or willful misconduct;
(d) Daily Backup of Subscriber Data/Monthly Transmission of Subscriber Data. Make a backup copy of all Subscriber Data ("Backup Copy") on a daily basis, in accordance with Linears standard backup procedures in effect from time to time. Linear shall maintain each Backup Copy in a secure location remote from the Linear Server. Notwithstanding the foregoing, Linear shall have no liability, directly or indirectly, to Subscriber or any third party in connection with the loss, destruction, or damage to any Backup Copy or any Subscriber Data. Once each calendar month, Linear shall provide to Subscriber at Subscribers Designated E-Mail Address an electronic file (the form and format of such file to be selected by Linear in the exercise of its sole discretion) containing all Subscriber Data then existing;
7. Obligations of Subscriber. During the Term, Subscriber shall, with respect to each Subscriber Web site, include in each edition of the print publication published by Subscriber that pertains to such Subscriber Web site a one-quarter (1/4) page print advertisement that is devoted to the promotion of such Subscriber Web site. This print advertisement will be at Subscribers sole cost and expense.
8. Fees/Taxes. Subscriber shall be responsible for and shall pay any and all taxes associated with the Services (excepting only taxes imposed on the basis of Linears income) and all costs, charges or fees incurred in connection with the Services, including, without limitation, mail and express mail costs, telecopy charges, and any fees or charges of any nature whatsoever incurred at the direction of Subscriber.
9. Ownership of Subscriber Data. Linear acknowledges and agrees that the content of the Subscriber Data is the property of Subscriber. Subscriber acknowledges and agrees that Linear is the exclusive owner of the electronic form of the Subscriber Data but shall have no rights to publish, disclose or otherwise disseminate such Subscriber Data in any manner without the express written consent of Subscriber. During the term, Subscriber shall have the exclusive right to the use of the Subscriber Data. At the conclusion of the Term, Linear shall be obligated to: (a) deliver to Subscriber a printed copy of the Subscriber Data; and (b) destroy any electronic embodiment of the Subscriber Data.
10. Joint Advertising Program Participation. Subscriber agrees that during the Term it will participate in joint Internet advertising programs recommended by Linear from time to time, subject to (i) space availability at the intended Subscriber Web site, (ii) the requirement that any Advertisement conform to the conditions set forth in subparagraph 5(a) of this Agreement, and (iii) the requirement that, unless Subscriber shall otherwise agree, the placement of such Advertisement shall be at Subscribers standard rates then in effect. Proceeds paid by any advertiser in connection with any such Advertisement placed at any Subscriber Web site pursuant to a recommended joint advertising program shall be allocated as follows: (a) Fifty Percent (50%) of the proceeds shall be paid to Subscriber; (b) Twenty Percent (20%) of the proceeds shall be paid to the salesperson responsible for the sale of the Advertisement; and (c) Thirty Percent (30%) of the proceeds shall be paid to Linear. Any amounts due and payable to Subscriber pursuant to this Paragraph 10 and that are paid to Linear by an advertiser shall first be applied against amounts due to Linear under this Agreement. The positive difference, if any, will be paid to Subscriber on or before the tenth (10th) day of the calendar month immediately following the calendar month in which payment from the advertiser is received by Linear. Linear shall provide a written accounting to Subscriber in connection with all Advertisement sales made pursuant to this Paragraph 10 at the time monthly invoices are sent pursuant to Paragraph 11 of this Agreement.
11. Invoicing and Payment. Invoices for Services and any other charges shall be rendered on or before the first (1st) calendar day of each month, and shall pertain to all Services provided to Subscriber during the immediately preceding calendar month. Each invoice shall be sent to Subscriber at Subscribers Designated E-Mail Address. Payment of such invoices shall be made by Subscriber to Linear within five (5) days of receipt. All payments shall be made to Linear at the notice address for Linear set forth in Paragraph 13. Subscriber shall pay interest on any amount which is not paid on or before the due date thereof at a rate per annum equal to the greater of (a) the maximum rate allowed by law or (b) one and one-half percent (1.5%) per month, the payment of either rate being calculated per day from the due date through the date of actual payment on the basis of a 365-day year.
12. No Assignment Without Consent. No party hereto may assign any of its interest herein without the written consent of all other parties.
13. Notices. All notices, requests, waivers and other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be delivered personally or sent by express delivery service, fax or certified mail, return receipt requested, addressed to the respective parties as follows:
Linear Publishing, LLC
Attention: Michael Morrison
836 East 64th Street
Indianapolis, IN 46220
Subscribers Designated E-Mail Address:
Either party may change its notice address by proper notice to the other party. Notices will be deemed to have been received as of the earlier of the date of actual receipt or, in the case of notices sent via U.S. Mail, three (3) days after mailing. A signed receipt shall be obtained where a notice is delivered in person.
14. Termination. This Agreement may be terminated:
(a) by Linear, at its election, in the event of (i) a payment default by Subscriber that is not cured within five (5) days after notice is sent by Linear to Subscribers Designated E-mail Address or (ii) any other default or breach of this Agreement by Subscriber that is not cured within thirty (30) days after notice is sent by Linear to Subscribers Designated E-mail Address; and
(b) by Subscriber, at its election, in the event: (i) the Linear Server is down and/or Subscriber is unable to access any Subscriber Database or any Subscriber Web site for a period of 72 consecutive hours or an aggregate of 96 hours in any calendar month except in circumstances (1) where inaccessibility is not caused by Linear or providers of services to Linear or (2) involving acts of God, acts of governmental authorities, strikes, war, disruption of utility services or similar event not within the reasonable control of Linear or Subscriber ("Force Majeure Event"); provided, however, during the pendency of any Force Majeure Event, Subscribers payment obligations for Services affected by such Force Majeure Event shall be suspended; further provided however that either party may terminate this Agreement upon written notice to the other party in the event that such Force Majeure Event has continued for more than sixty (60) days; (ii) any other default or breach of this Agreement by Linear that is not cured within thirty (30) days after notice is sent by Subscriber to Linear in accordance with the terms of Paragraph 13 of this Agreement; and (iii) should Linear fail to perform to Subscribers expectations.
15. LIMITATION OF LIABILITY/DISCLAIMERS/EXCLUSIVE REMEDY. IN THE EVENT OF A BREACH OF ANY OF THE TERMS OF THIS AGREEMENT BY LINEAR, THE SOLE AND EXCLUSIVE REMEDY OF SUBSCRIBER SHALL BE RECOVERY OF DAMAGES NOT TO EXCEED THE AMOUNT PAID BY SUBSCRIBER FOR THE SERVICES PERFORMED BY LINEAR DURING THE CALENDAR YEAR IN WHICH SUCH BREACH OCCURS. LINEAR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT LINEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SPECIFICALLY, AND WITHOUT LIMITATION, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT LINEAR SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER TO SUBSCRIBER OR ANY THIRD PARTY IN CONNECTION WITH, ARISING OUT OF OR BY VIRTUE OF ANY BUSINESS INTERRUPTION, LOST REVENUES, LOST PROFITS OR LOSS OF DATA. LINEAR DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT RESTRICTED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SUBSCRIBER AND LINEAR EACH ACKNOWLEDGE THAT THE PROVISIONS OF THIS AGREEMENT ARE INTENDED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS AND SERVICES CONTEMPLATED BY THIS AGREEMENT. EXCEPT FOR MONEY DUE UPON AN OPEN ACCOUNT, NO ACTION SHALL BE BROUGHT FOR ANY BREACH OF THIS AGREEMENT MORE THAN TWO (2) YEARS AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION EXCEPT WHERE A SHORTER LIMITATION PERIOD IF PROVIDED BY APPLICABLE LAW.
16. Miscellaneous. This Agreement is the entire agreement, and supersedes all prior agreements and understandings, written and oral, among the parties hereto or any of them with respect to the subject matter hereof. The failure by any party at any time to require performance of any provision hereof shall not affect its right later to require such performance. No waiver in any one or more instance shall (except as otherwise stated therein) be deemed to be a further or continuing waiver of any such condition or breach in any other instances or a waiver of any other condition or breach of any other term, covenant, representation or warranty. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. The captions in this Agreement are inserted only as a matter of convenience and are not intended to define, limit, construe or describe the scope or intent of any provision of this Agreement. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Indiana. In the event that any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable in whole or in part, the remainder of this Agreement or the application of such term or provision to circumstances other than those as to which it is held invalid, void or unenforceable shall not be affected thereby and every term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. In any action at law or in equity to enforce any of the provisions or rights under this Agreement, the unsuccessful party or parties to such litigation, as determined by the court in a final judgment or decree, shall pay the successful party or parties all costs, expenses and reasonable attorneys fees incurred by the successful party or parties (including, without limitation, costs, expenses and fees on any appeals), and if the successful party or parties recovers judgment in any such action or proceeding, such costs, expenses or attorneys fees shall be included as part of the judgment.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above.
LINEAR PUBLISHING, LLC
Pricing and Services
- Three Hundred Dollars ($300.00) per month for a Linear Publishing System used to host a single print publication Web site. Charges shall commence forty-five (45) days after the initial training session at a prorated amount until the first of the following month in which the normal billing cycle will commence.
- A Five Hundred Dollars ($500.00) initial setup and training fee per publication.
- Disk Storage Space: Subscriber will be allotted up to 2.5 gigabytes of storage space on Linear's server for the purpose of storing Subscriber's Internet content. Additional storage space can be obtained based on the pricing listed in Additional Services.
- Data Transfer: Subscriber will be allowed up to 20 Gigabytes of bandwidth each month for the transfer of information on the Internet. Additional bandwidth can be obtained based on the pricing listed in Additional Services.
- Web Site Hosting: Host Internet site intended for public access with Subscriber's defined domain name (i.e.www.sitename.com). The cost for acquiring the domain name shall be borne by Subscriber.
- Web Site Management Tool: Linear shall provide Subscriber with access to the Linear system for managing Subscriber's Internet site content.
- Online Web Statistics: Linear shall provide a Web-based analysis of Subscriber's Web traffic. Statistics shall cover a period not less than 30 days.
- Initial Site Design: Linear shall provide an initial design for Subscriber's Web site, to Subscriber's reasonable specifications, and using artwork and other content provided by the Subscriber.
- Web Site Management Tool Training: Linear shall provide three (3) one-hour conference calls with Subscriber for purposes of training in the use of Linear's Web Site Management Tool. The initial training is available for sixty (60) days from the date of this contract for a total of three hours and may include as many users that want to participate. If any additional training is necessary after the initial offering, additional charges may apply according to Exhibit B.
- Online Support Center: Linear shall service and maintain an online support feature for Subscriber's routine use. The Online Support Center will feature automated Ticketing system, FAQ and other modern technical support services available through the Internet.
- Online Manual: Linear shall maintain a comprehensive online manual for the Web Site Management Tool. Subscriber will have routine and convenient access to the online manual.
- Toll-free Support: Linear shall provide Subscriber with toll-free technical support.
- Data Backups: Linear shall daily backup Subscriber's Site data (not including visuals).
- Email Accounts: Linear shall configure, maintain and host up to five (5) individual email accounts each with a five (5) megabyte storage limit. Additional email accounts can be obtained based on the pricing listed in Additional Services.
- FTP Services: Linear shall set-up and maintain an FTP service for Subscriber within their Linear system. The FTP service will feature five (5) administrative access passwords. Monthly cost $10.00.
- Additional Publications: Subscriber may host additional publications within their Linear system at a rate of $50 per month. It is understood that the initial Web site will host three publications.
- Dedicated Server: Linear shall acquire, configure, host and maintain a dedicated server for Subscriber. Linear shall move all Subscriber's existing Web site data to the dedicated server. The Server will be comparable in quality to other servers in use by Linear Publishing. The cost for a dedicated server is $250 per month.
- Additional Email Accounts: Linear shall configure, maintain and host Subscriber's additional email accounts. One-time set-up fee $10.00. Monthly cost $1.00 for a five (5) Megabyte storage limit; or, $2.00 for a ten (10) Megabyte storage limit; or, $3.00 for a twenty (20) Megabyte storage limit.
- Additonal Hard Disk Space: Linear can make available to Subscriber additional Hard Disk storage space at a rate of $20 per gigabyte per month. Available only in one (1) gigabyte increments.
- Additional Bandwidth: Linear can make available to Subscriber additional bandwidth at a rate of $25 per gigabyte per month. Available only in one (1) gigabyte increments.
- Cool Letters: Enable Linear's Cool Letter features allowing for automated mail merge of HTML formatted email through the Account Management system. As the commercial implications of Cool Letters are significant, Linear requires this service only be offered to Subscribers on dedicated servers (see above).
- WYSIWYG: Linear can configure third party software to provide a WYSIWYG interface for the editorial system. This allows Subscriber to edit their editorial text content in an environment to easily apply format tags (bold, italic, etc.). One-time set-up fee $50.00. Monthly cost $10.00.
- Domain Hosting: Linear shall configure and host an additional domain name (i.e. www.otherdomain.com) for Subscriber's use. One-time set-up fee $25.00. Monthly cost $2.00.
- Sub-Domain Hosting: Linear shall configure and host a sub-domain name (i.e. sales.subscriberdomain.com) for Subscriber's use. One-time set-up fee $10.00. Monthly cost $1.00.
- Domain Registration: Linear can coordinate, configure and manage registration of Subscriber's domain names with Network Solutions. One-time set-up fee $50.00. Monthly cost $2.00.
- Programming: Linear can provide a broad range of Subscriber services which fall under the definition of Programming. This can include consulting and importation of Subscriber's existing data into the Linear system; and, designing a custom interface for the routine upload of Subscriber's data into the Linear system (i.e. classified scripting); and, creating custom Internet applications integrated into the Linear system for Subscriber's business needs. All charges for programming are quoted prior to any charges being incurred. Cost $200.00 per hour. Linear shall provide a written estimate prior to any programming. Programming code developed by Linear shall remain the property of Linear. If Subscriber's requested programming provides additional value to the Linear System, as determined by Linear, the hourly programming charge may be reduced or waived.
- Redesign: Linear's design team can perform an “artistic” redesign of Subscriber's site with Subscriber consultation. All charges for redesign are quoted prior to any charges being incurred. Cost $75.00 per hour.
- Credit Cards and Secure Server: Linear can configure Subscriber's site for any range of secure services. Please call.
Linear provides us with the total package. Account, Distribution, Sales and Editorial Management.
Its great having ready access to our internal information from any computer. The company productivity is boosted by our experience with Linear.
Mary Cox, Publisher