|
|
 |
 |
| |
 |
|
This
Agreement ("Agreement") is between SMG Internet Systems, Inc. d/b/a
Top Site Services("TSS"), and the party specified in
the
online order form annexed hereto and incorporated herein by reference
("Order"). Such party shall be referred to herein as the "Customer"
and shall enter into this Agreement by signing below.
For good and valuable consideration, the parties agree as follows:
1. SERVICES
Subject to the terms and conditions of this Agreement, TSS will
provide to Customer the Web hosting and/or related services described
in the plan selected by Customer from TSS's then published list
of services as offered from time to time ("Services"). The specific
plan of Services to be provided initially to Customer shall be as
selected in the Order and thereafter as established through correspondence
between Customer and TSS.
2. TERM
The initial term of this Agreement shall be as stated in the Order
("Initial Term"). The Initial Term shall begin upon commencement
of Service to Customer, provided, however, no Service shall commence
unless and until TSS receives and accepts a completed Order from
Customer, plus payment in full for Services to be rendered during
the Initial Term and any setup charges. TSS reserves the right to
reject any submitted Order for any or no reason prior to written
acceptance thereof by TSS. After the Initial Term, unless otherwise
agreed to by the parties, this Agreement shall automatically renew
for successive terms of equal length as the Initial Term unless
terminated or canceled by either party only as provided in Paragraph
9 below. The Initial Term plus all successive renewal periods during
which Service is provided shall be collectively referred to as the
"Term."
3. FEES AND PAYMENT
All fees for Services rendered or provided to Customer shall be
in accordance with TSS's fee schedule then in effect, the terms
of which are incorporated herein by reference. TSS may, with 30
days notice to Customer, amend the Services and/or the rates and
fees it charges for the Services. Fees for renewal periods after
the Initial Term shall be due and owing immediately upon the first
day of such renewal period. Customer will receive an invoice for
the charges for the basic Services rendered or provided by TSS for
such renewal period, plus any additional Services rendered or provided
by TSS to Customer for the preceding month of the Term, and any
other charges or fees then due thereunder. Payment in full of such
invoiced amount is due upon receipt of the invoice. Should payment
in full of any invoice not be received by TSS within thirty (30)
days after date of invoice, TSS may impose a debt service charge
equal to one and one-half percent (1.5%) of the overdue balance
(or such lesser amount as may be required by law) for each month
or fraction thereof the overdue amount remains unpaid. In addition,
in the event that any amount due TSS remains unpaid thirty (30)
days after presentation of an invoice to Customer, TSS, in its sole
discretion, may immediately terminate this Agreement, and/or withhold
or suspend Services. All taxes, fees and governmental charges relating
to the Services provided thereunder (other than income taxes of
TSS) shall be paid by Customer.
4. CONTENT AND CUSTOMER'S RESPONSIBILITY
Customer agrees that neither TSS nor its suppliers shall, under
any circumstances, be held responsible or liable for situations
where the data stored or communicated through the Service are accessed
by third parties through illegal or illicit means, including situations
where such data is accessed through the exploitation of security
gaps, weaknesses or flaws (whether known or unknown to TSS at the
time) which may exist in the Service. TSS stores and facilitates
the transmission of private electronic communications pursuant to
the Electronic Communications Privacy Act of 1986. Electronic communications
on this system are private, and only under situations where explicitly
required or allowed by law will such communications be accessed,
intercepted, disclosed, or used without the consent of at least
one of the parties to the communication. Although TSS will not systematically
monitor the content which is submitted to, stored on or distributed
via disseminated via the Service, TSS reserves the right, in its
sole discretion, to edit or delete any information or other content,
regardless of whether it violates the standards for content laid
out in the TSS. Usage Policy found at http://www.topsitehosting.com/policies.html
("Usage Policy").
5. NO WARRANTY
Customer agrees to use all TSS's Services and facilities, and any
information obtained through or from TSS, at Customer's own risk.
Customer acknowledges and understands that neither TSS, nor any
of its employees, representatives, agents or the like, warrant that
the Services offered or provided thereunder will be uninterrupted
or error free, nor do they make any warranty or representation as
to the results that may be obtained from the use of the Service
or as to the accuracy, reliability or content of any information
service or merchandise contained in or provided through the Service,
unless otherwise expressly stated in this Agreement. TSS specifically
disclaims all warranties of any kind, including, without limitation,
the warranties of title, merchantability, and fitness for a particular
purpose, whether expressed or implied, for the Service it is offering
or providing thereunder.
6. PROHIBITED USES
Customer warrants that all information submitted to, stored or distributed
via the Service does not infringe copyright or any other intellectual
property right. Customer grants TSS the right to reproduce, copy
use and distribute any materials submitted to, stored on or distributed
via the Service to the extent needed to operate the Service. Customer
agrees that its use of the Service and the software used to provide
the Service will be in a manner consistent with this Agreement.
Customer shall not use, nor permit the use by any person of, the
Service or any part thereof, including any hyperlinks, in violation
of the Usage Policy.
7. LIMITED LIABILITY
Under no circumstances, including negligence, shall TSS, its officers,
agents or anyone else involved in creating, producing or distributing
the Service thereunder be liable to Customer for any indirect, incidental,
special, or consequential, or punitive damages. TSS, its officers,
agents or anyone else involved in creating, producing or distributing
the Service thereunder shall not be liable to Customer for any loss
or damages that result or have alleged to have resulted from the
use of or inability to use the Service; or that results from mistakes,
omissions, interruptions, deletion of files, loss of data, errors,
defects, delays in operations, or transmission or any failure of
performance, whether or not limited to acts of God, communications
failure, theft, destruction or unauthorized access to TSS's records,
programs or services. Furthermore, TSS shall have no responsibility
whatsoever to Customer for the accuracy or quality of information
obtained through or in connection with its Services provided thereunder.
Notwithstanding anything to the contrary in this Agreement, Customer's
exclusive remedies for all damages, losses, costs or causes of actions
from any and all claims, whether in contract, quasi-contract, statutory,
tort including negligence, or otherwise, shall not exceed the aggregate
dollar amount which Customer paid during the twelve (12) months
immediately preceding the claim or the term of this Agreement, whichever
is less.
8. INDEMNIFICATION
CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS TSS AND ITS SUPPLIERS
FROM AND AGAINST ANY AND ALL THIRD-PARTY CLAIMS AND RESULTING LIABILITIES,
LOSSES, DAMAGES, COSTS AND EXPENSES, (INCLUDING REASONABLE ATTORNEYS
FEES) OF WHATEVER NATURE OR KIND ARISING OUT OF OR IN CONNECTION
WITH: (1) THE USE OF THE SERVICE BY THE CUSTOMER OR ANY USER OR
(2) ANY ACTS OR OMISSIONS OF THE CUSTOMER OR AUTHORIZED USERS. THIS
INDEMNIFICATION INCLUDES ANY CAUSE OF ACTION BROUGHT AGAINST TSS
WHICH IS BASED IN WHOLE OR IN PART ON A CLAIM THAT TSS IS NEGLIGENT
IN RELATION TO PROVISION OF THE SERVICE TO THE CUSTOMER OR USER(S).
CUSTOMER'S OBLIGATION TO INDEMNIFY TSS AND ITS SUPPLIERS WILL SURVIVE
THE EXPIRATION OR TERMINATION OF THIS AGREEMENT BY EITHER PARTY
FOR ANY REASON. CUSTOMER SHALL PAY FOR THE DEFENSE OF ANY SUCH THIRD
PARTY ACTION ARISING AS DESCRIBED HEREIN UNLESS TSS AND CUSTOMER
MUTUALLY AGREE THAT TSS WILL PAY FOR THE DEFENSE.
9. TERMINATION
This Agreement may be terminated: (i) by either party, without cause,
by giving the other party 30 days prior written notice; (ii) by
TSS, at any time, upon 20 days' prior notice if in the sole judgment
of TSS, Customer breaches any material provision of this Agreement
and has not cured same by the end of the 20 days; (iii) by TSS in
the event of nonpayment by Customer as provided in Paragraph 3 above;
and (iv) by TSS, at any time, without notice, if, in TSS's sole
judgment, Customer is in violation of any terms or conditions of
the Usage Policy.
10. ADDITIONAL TERMS AND CONDITIONS
Customer hereby acknowledges that it has reviewed the Usage Policy
and that the terms of the Usage Policy are incorporated herein by
reference. TSS reserves the right to amend the Usage Policy from
time to time and Customer shall be bound by any such amendments.
Customer shall have the obligation to periodically visit TSS Web
site to review its Usage Policy and to make certain Customer is
in full compliance therewith. In the event of any inconsistencies
between this Agreement and the Usage Policy, the terms of the Usage
Policy shall govern.
11. GUARANTEE
Each of TSS's hosting plans thereunder carries a 30 day unconditional
money back guarantee. If Customer is not completely satisfied with
TSS's services provided thereunder within the first 30 days of the
Initial Term, Customer will be given a full refund of any amounts
paid to TSS thereunder excluding setup fees (unless canceled prior
to activation), domain registration fees, dedicated servers and
overages. No refund is available after the 30th day of the Initial
Term.
12. NOTICE
All notices must be sent either in writing or by e-mail, except
as otherwise expressly provided herein that a notice must be in
writing. All notices to TSS shall be delivered to SMG Internet Services,
Inc. All notices to the Customer shall be delivered to its mailing
address or its e-mail address as provided on the Order. The parties
may change their respective address by notice delivered to the other
party. All notices delivered in writing must be sent either by overnight
courier or certified mail, return receipt requested. Evidence of
successful transmission of all notices delivered by e-mail must
be retained by the delivering party.
13. MISCELLANEOUS
This Agreement sets forth the entire agreement between TSS and Customer
with respect to the subject matter hereof and supersedes all previous
representations, understandings or agreements and shall prevail
notwithstanding any variance with terms and conditions of any other
prior writing between the parties. If any provision of this Agreement
is held to be invalid by a court of competent jurisdiction, then
the remaining provisions shall nevertheless continue in full force
and effect. Customer may not transfer or assign this Agreement without
TSS's prior written consent. This Agreement shall be governed by
the laws of the State of New York and all claims concerning this
Agreement shall be brought exclusively in the state or federal courts
located in the County of Nassau. The parties hereby consent to submit
to the jurisdiction of such courts and waive any personal jurisdiction
or venue defenses concerning said forum. If not for personal use,
Customer hereby represents and warrants to TSS that the he or she
is duly authorized to execute and deliver this Agreement on behalf
of the legal entity to whom the benefit of the service is being
conferred, and that such entity will comply with and be bound by
the terms and conditions of this Agreement. |
| |
| Back
to Top |
| |
|
