|
This Agreement ("Agreement") is between WEBMASTERS.COM,
its parent company, NetTuner Corporation,
a Florida corporation ("WEBMASTERS.COM")
headquartered at 3003 West Stovall Street, Suite 100, Tampa, FL
33629 and the party specified in the 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 by clicking on the Submit button of the
Order.
For good and valuable consideration, the parties agree as follows:
1. SERVICES
Subject to the terms and conditions of this Agreement, WEBMASTERS.COM
will provide to Customer Internet facilities consisting of some or
all of: connectivity, hardware management, software management,
web hosting, web design, website promotion, and/or related
services described in the plan selected by Customer from WEBMASTERS.COM's
then published list of services 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 WEBMASTERS.COM.
2. SUPPORT
WEBMASTERS.COM
will provide to Customer technical support ("Standard
Support") associated with normal operation of Customer's
website. Standard Support shall include only diagnosis and repair
of any malfunction of standard network, equipment, and web server
hardware or software ("Standard Issues") provided with
Customer's plan of Services. No support shall be provided for any
issue not directly related to any Standard Issues described
above, including but not limited to issues related to web design,
third party software configuration or troubleshooting, and
training. Customer may request additional support for items not
covered by Standard Support, which would be billed at a specified
hourly rate determined solely by WEBMASTERS.COM.
3. 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 WEBMASTERS.COM
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. WEBMASTERS.COM
reserves the right to reject any submitted Order for any or no
reason prior to written acceptance thereof by WEBMASTERS.COM.
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".
4. FEES AND PAYMENT
All fees for Services rendered or provided to Customer shall be in
accordance with WEBMASTERS.COM's fee schedule published at http://www.webmasters.com/hosting.html.
WEBMASTERS.COM
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 WEBMASTERS.COM
for such renewal period, plus any additional Services rendered or
provided by WEBMASTERS.COM
to Customer for the preceding month of the Term, and any other
charges or fees then due hereunder. Payment in full of such
invoiced amount is due upon receipt of the invoice. Credit card
orders will be charged automatically to the card number on file
for the amount of the invoice. Credit card orders will also be
charged automatically each month for bandwidth, disk space, and
mailbox usage exceeding the monthly allowable limit published at http://www.webmasters.com/hosting.html.
If for any reason a credit card is not approved by our bank on three attempts, the account is subject to
immediate suspension. Should payment in full of any invoice not be received
by WEBMASTERS.COM
within ten (10) days after date of invoice, WEBMASTERS.COM
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 WEBMASTERS.COM
remains unpaid ten (10) days after presentation of an invoice to
Customer, WEBMASTERS.COM,
in its sole discretion, may immediately terminate this Agreement,
and/or withhold or suspend Services. Suspension of service does
not necessarily imply termination of this Agreement and service
charges will continue to accrue as if no suspension had occurred.
Reinstatement of service will require a $50 reinstatement
fee. All taxes, fees and governmental charges relating to the
Services provided hereunder (other than income taxes of WEBMASTERS.COM)
shall be paid by Customer. Checks returned unpaid (NSF) will be
assessed a $20 charge. All payments are in U.S. currency.
5. CONTENT AND CUSTOMER'S RESPONSIBILITY
WEBMASTERS.COM
will exercise no control whatsoever over, nor have any
responsibility or liability whatsoever for, the content of the
information passing through its network. WEBMASTERS.COM
shall make no effort to validate any information passing through
its network for content, correctness, usability or for any other
reason.
6. NO WARRANTY
Customer agrees to use WEBMASTERS.COM's
Services, and any information obtained through or from WEBMASTERS.COM,
at Customer's own risk. Customer acknowledges and understands that
neither WEBMASTERS.COM,
nor any of its employees, representatives, agents or the like,
warrant that the Services offered or provided hereunder will not
be interrupted or be 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. WEBMASTERS.COM
specifically disclaims all warranties of any kind, including,
without limitation, the warranty of merchantability and fitness
for a particular purpose, whether expressed or implied, for the
Service it is offering or providing hereunder.
7. PROHIBITED USES
Customer shall not use WEBMASTERS.COM´s
Services in violation of WEBMASTERS.COM's
"Service Usage Policy" provided herewith.
8. LIMITED LIABILITY
Under no circumstances, including negligence, shall WEBMASTERS.COM,
its officers, agents or anyone else involved in creating,
producing or distributing the Service hereunder be liable to
Customer or any third party, for any claims, causes of action or
direct, indirect, incidental, special, or consequential, trebled,
or punitive 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 WEBMASTERS.COM's
records, programs or services. WEBMASTERS.COM
further shall have no responsibility whatsoever to Customer or any
third party for the accuracy or quality of information obtained
through or in connection with its Services provided hereunder.
Notwithstanding the above, 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.
9. INDEMNIFICATION
Customer shall defend, indemnify, save and hold WEBMASTERS.COM
harmless from any and all damages, demands, liabilities, losses,
costs and claims, including, without limitation, reasonable
attorneys' fees, compensatory damages, punitive damages, trebled
damages, and statutory damages (hereinafter
"Liabilities") asserted against WEBMASTERS.COM,
its agents, its customers, servants, officers and employees, that
may arise or result from any service provided or performed or
agreed to be performed by Customer, its agents, employees or
assigns or any product distributed, offered or sold by Customer,
its agents, employees or assigns.
10. TERMINATION
This Agreement may be terminated: (i) by the customer at any time, without
cause; (ii) by WEBMASTERS.COM,
without cause, by giving the other party 30 days prior
notice; (iii) by WEBMASTERS.COM,
at any time, upon 20 days' prior notice if in the sole judgment of
WEBMASTERS.COM,
Customer breaches any material provision of this Agreement and has
not cured same by the end of the 20 days; (iv) by WEBMASTERS.COM
at any time in the event of nonpayment by Customer as provided in Paragraph 3
above; and (v) by WEBMASTERS.COM,
at any time, without notice, if, in WEBMASTERS.COM's
sole judgment, Customer is in violation of any terms or conditions
of WEBMASTERS.COM's
Service Usage Policy. If a customer voluntarily terminates his/her
account, WEBMASTERS.COM agrees to reimburse that customer the
unused portion of the pre-paid annual hosting fee within 30 days
of the initial valid cancellation notice. A valid cancellation
notice shall be made in writing or by e-mail. If a customer's
account is terminated for cause, no refund shall be issued.
11. ADDITIONAL TERMS AND CONDITIONS
Customer hereby acknowledges that it has received and reviewed a
copy of WEBMASTERS.COM's
"Service Usage Policy" provided herewith and that the
terms of the Service Usage Policy are incorporated herein by
reference. WEBMASTERS.COM
reserves the right to amend the Service Usage Policy from time to
time and Customer shall be bound by any such amendments. Customer
shall have the obligation to periodically visit http://www.webmasters.com/policy
to review its Service Usage Policy and to make certain Customer is
in full compliance therewith. In the event of any inconsistencies
between this Agreement and the Service Usage Policy, the terms of
the Service Usage Policy shall govern.
12. NOTICE
All notices must be sent either in writing or by email, except as
otherwise expressly provided herein that a notice must be in
writing. All notices to WEBMASTERS.COM
shall be delivered to its address stated above or its email
address as provided. All notices to the Customer shall be
delivered to its mailing address or its email 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 email must be retained by
the delivering party.
13. MISCELLANEOUS
This Agreement sets forth the entire agreement between WEBMASTERS.COM
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 WEBMASTERS.COM's
prior written consent. This Agreement shall be governed by the
laws of the United States Of America and the State Of Florida and
all claims concerning this Agreement shall be brought exclusively
in the state or federal courts located in the County of
Hillsborough in the State of Florida. The parties hereby consent
to submit to the jurisdiction of such courts and waive any
personal jurisdiction or venue defenses concerning said forum.
|