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SERVICE
AGREEMENT
- Parties. This agreement is between Internet Express
(PROVIDER) and the party as specified in the on-line application
(CLIENT).
- XpresHost web hosting only. This agreement covers XpresHost
web hosting services only. XpresHost web services consist of XpresHost,
XpresHost II, XpresHost III, XpresHost IV and XpresHostV plans.
Other Internet services by the same PROVIDER are available at
www.ixpres.com and are subject to another agreement.
- Space usage. PROVIDER will allow for a maximum of 750Mb
of web space to be used by the CLIENT as long as the use is in
compliance with the policies set below.
- Bandwidth usage. PROVIDER will not restrict the bandwidth
used by the CLIENT as long as the use is in compliance with the
policies set below.
- Policies. CLIENT agrees to comply strictly with PROVIDERS
"Acceptable use policy" http://corp.ixpres.com/host/use.asp
and "Copyright infringement policy". http://corp.ixpres.com/host/cip.asp.
CLIENT understands that the services are subject to immediate
termination without compensation for non-compliance with the policies.
Further, CLIENT will be responsible for the full amount of any
tangible and intangible damages this may cause. PROVIDER reserves
the right to change the policies from time to time to reflect
the dynamic nature of the Internet. Both policies are available
on-line any time or as a hard copy by request only.
- Account sharing. Account sharing is not allowed. PROVIDER
will terminate immediately and without compensation accounts,
which share the web space with others or subdivide and resell
the web space. Subdivision of the web space into two or more web
sites is not allowed even if the owner is the same.
- Excluded Services. Provider will not provide services
and will terminate existing services immediately without compensation
if the CLIENT's web site is involved in any of the following:
adult sites, copyrights violation, pirated software (warez), pirated
music and web sites, whose primary business is web advertisement.
- On-line subscription. CLIENT makes an on-line, paperless
subscription for the services. CLIENT acknowledges that all the
information he/she submits on-line is true and correct to the
best of his/her knowledge. CLIENT agrees that the act of submitting
his subscription form on-line is equivalent to his/her signature.
PROVIDER will bill according to the billing period unless a cancellation
in writing is received.
- Price change. PROVIDER has the right to change the price
of the services to reflect a change in the cost of the service,
or other reasons. In case of price change, PROVIDER will send
a 30 day advanced notice by e-mail only.
- Start of services. Services will typically start on
the same business day on PROVIDER's site. Domain registration
may take longer.
- 30-Day Money Back Guarantee. PROVIDER will refund CLIENT's
service fee within the first 30 days of service providing that
CLIENT reports problems with service to PROVIDER within the first
7 days and also providing that PROVIDER is unable to rectify the
CLIENT's issue or issues in the 30-day period. Set Up fees are
non-refundable.
- Quality of Services - 99.9% Uptime Guarantee. PROVIDER
guarantees that service will be available 24/7. If for any reason
service is unavailable, PROVIDER will issue a credit equal to
seven (7) times the outage period as compensation (i.e. if service
is down for one day, client will recieve a one week service credit).
PROVIDER will not be responsible for any damages a service interruption
may cause the CLIENT beyond that which is stated above. Further
PROVIDER will not censor any content on INTERNET. It will be CLIENT's
responsibility for the usage of his account and any consequences
of this usage.
- Fees. CLIENT agrees to pay for the services setup fee,
monthly fee, heavy traffic fee (if any) and excessive space fee
(if any). The setup fee and first month fee is due upon the signature
of this agreement. PROVIDER will notify CLIENT in advance if any
heavy traffic fee and/or excessive space fee are due.
- Domain name registration. PROVIDER will submit an application
for the domain name selected by the CLIENT to registration authority
(RA). CLIENT will be listed as billing and administrative contact
in this application. PROVIDER has no other responsibilities related
to the domain name registration process. CLIENT agrees to pay
all fees related to the registration and support of this domain
name directly to RA. CLIENT understands that non-payment of said
fees may result in non-visibility of his web site and/or losing
the selected name. If Internet Express has paid for the registration
of CLIENT's domain name and CLIENT cancels his web hosting plan
within 12 months, CLIENT will be charged $35.00 for the domain
name registration. Credit card accounts will be automatically
renewed unless notified two weeks prior to expiration date of
service.
- Termination of Services. PROVIDER reserves the right
to refuse services to anyone and to terminate existing services
with 14 days advance notice for any or no reason; and without
advance notice if the CLIENT violates the clauses of this agreement.
CLIENT has the right to terminate the services at any time with
a written notice sent by mail to 5055 Viewridge Avenue, San Diego,
CA 92123, or by e-mail to billing@ixpres.com. Both parties agree
that there will be no monetary compensation for terminated services
regardless of the reason. No refunds. No pro-rate.
- Payments. CLIENT agrees his that credit card to be charged
as specified above. CLIENT agrees to provide updated credit card
information on-line as may be requested in case his/her card has
been declined. CLIENT understands that non-payment will result
in automatic "hold" on his/her account. During the hold period
the web site will not be accessible. The account will be "reactivated"
after payment in full is received.
- Late Payment. CLIENT agrees to pay a one time penalty
of 6% of the amount due plus $10 per month for delayed payments.
- Lawful use of INTERNET. CLIENT agrees to use INTERNET
in accordance with the law and with the ethical rules established
or to be set up in the future.
- No solicitation. CLIENT agrees not to approach PROVIDER's
employees with proposals to hire them as his own employees or
contractors. If CLIENT were to hire any of Internet Express' employees,
CLIENT agrees to pay PROVIDER for each employee thus hired the
greater amount of: three years salary for that employee as CLIENT
is to pay such employee, or $200,000.
- LIMITED LIABILITY. PROVIDER shall not be liable under
any circumstances for any special, consequential, incidental or
exemplary damages arising out of or in any way connected with
this agreement or the product, including but not limited to damages
for lost profits, loss of use, lost data, phone bills, communication
lines bills, loss of privacy, damages to third party even if PROVIDER
has been advised of the possibility of such damages. The foregoing
limitation of liability shall apply whether any claims based upon
principles of contract, warranty, negligence or other tort, breach
of any statutory duty, principles of indemnity or contribution,
the failure of any limited or exclusive remedy to achieve its
essential purpose or otherwise. CLIENT's sole compensation for
any of the above is referenced in item 11 of this agreement. Further,
PROVIDER will not censor any content on the INTERNET. It will
be CLIENT's responsibility for the usage of his account and any
consequences of this usage.
- Indemnification. CLIENT shall indemnify, defend by counsel
reasonably accepted by PROVIDER, protect and hold PROVIDER harmless
from and against any and all claims, liabilities, losses, costs,
damages, expenses, including consultants' and attorneys' fees
and court costs, demands, causes of action, or judgments directly
or indirectly arising out of or related to the web hosting and
other services provided by PROVIDER to the CLIENT.
- Security and Integrity of Information. Although PROVIDER
implements the latest technology for information protection there
is no guarantee that the information on Internet is absolutely
secure or never may be destroyed. CLIENT agrees to keep the PROVIDER
harmless in case of loss of information or loss of privacy.
- Entire Agreement. This Agreement constitutes the entire
understanding and contract between the parties and supersedes
any and all prior and contemporaneous, oral or written representations,
communications, understandings and agreements between the parties
with respect to the subject matter hereof, all of which representations,
communications, understandings and agreements are hereby canceled
to the extent they are not specifically merged herein. The parties
acknowledge and agree that neither of the parties is entering
into this Agreement on the basis of any representations or promises
not expressly contained herein.
- Modification. This Agreement shall not be modified,
amended, canceled or in any way altered, nor may it be modified
by custom and usage of trade or course of dealing, except by an
instrument in writing and signed by both of the parties hereto.
- Waiver. Performance of any obligation required of a
party thereunder may be waived only by a written waiver signed
by the other party, which waiver shall be effective only with
respect to the specific obligation described therein. The waiver
by either party hereto of a breach of any provision of this Agreement
by the other shall not operate or be construed as a waiver of
any subsequent breach of the same provision or any other provision
of this Agreement.
- Severability. If any provision of this Agreement shall
be unlawful, void, or for any reason, unenforceable, it shall
be deemed severable from, and shall in no way affect the validity
or enforceability of, the remaining provisions of this Agreement,
which shall remain valid and enforceable according to its terms.
- Governing Law. This Agreement was entered into in the
State of California and its validity, construction, interpretation
and legal effect shall be governed by the laws and judicial decisions
of the State of California applicable to contracts entered into
and performed entirely within the State of California.
- Authority to Execute. Each of the parties to this Agreement
represents and warrants that it has full power to enter into this
Agreement and that it hasn't assigned, encumbered, or in any manner
transferred all or any portion of the claims covered by this Agreement.
- Benefit of Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of each of the parties
hereto, and except as otherwise provided herein, their respective
legal successors and permitted assigns.
- Cumulative Remedies. Except as specifically provided
herein, no remedy made available to either party hereunder is
intended to be exclusive of any other remedy provided hereunder
or available at law or in equity.
- No Partnership or Agency. Nothing in this Agreement
shall be construed as creating a joint venture, partnership, agency,
employment relationship, franchise relationship or taxable entity
between the parties, nor shall either party have the right, power
or authority to create any obligations or duty, express or implied,
on behalf of the other party hereto, it being understood that
the parties are independent contractors vis-à-vis one another.
- No Third Party Beneficiaries. Nothing contained in this
Agreement, express or implied, shall be deemed to confer any rights
or remedies upon, nor obligate any of the parties hereto, to any
person or entity other than such parties, unless so stated to
the contrary.
- Excused Performances. Provider shall not be deemed to
be in default of or to have breached any provision of this Agreement
as a result of any delay, failure in performance or interruption
of the Services, resulting directly or indirectly from acts of
God, acts of civil or military authority, civil disturbance, war,
strikes or other labor disputes and disturbances, fire, transportation
contingencies, shortages of facilities, fuel, energy, labor or
materials, or laws, regulations, acts or order of any government
agency or official thereof, other catastrophes, or any other circumstances
beyond Provider's reasonable control. In the event of any such
delay or failure, performance of the Services shall be deferred
to a date and time mutually agreeable by the parties.
- Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
- Captions. The section headings and captions contained
herein are for reference purposes and convenience only and shall
not in any way affect the meaning or interpretation of this Agreement.
- Gender. Where the context so requires, the masculine
gender shall include the feminine or neuter, and the singular
shall include the plural and the plural the singular.
- Recitals. The recitals above set forth are incorporated
herein by reference.
- Arbitration. Any dispute arising under this agreement
shall be resolved by binding arbitration in the city of San Diego,
California and under the rules of the American Arbitration Association.
Last revised
- 10/02/2002
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