aftertec, Inc. will not share any information or communications to 3rd parties.
TERMS AND CONDITIONS OF COMPUTER CONSULTING SERVICES
The Terms and Conditions of Computer Consulting Services (“Agreement”) set forth below is made by and between you, as “Client”) and Aftertec, Inc., (“Consultant”), at 159 Kentucky Street #2, Petaluma,. CA 94952, together referred to as the “Parties”, in consideration of the mutual promises made in this Agreement, as set forth below.
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, INCLUDING LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. The terms and conditions of this Agreement apply to the purchase and sale of computer consulting services or goods through Consultant. By placing an order for such products and services on this website, you agree to be bound by and accept these terms and conditions. If you do not agree to these terms and conditions, you should not obtain products or services from this website.
The Parties hereby agree as follows:
1.01. Consultant will provide the following goods and services to Client:
1.02. Client will provide Consultant with the compensation and business expense reimbursement as specified in this Agreement.
2.01. Client will retain Consultant to provide the above mentioned services and goods as may be required by Client commencing and ending on the dates of service agreed upon by the Parties , as set forth in Consultant’s Quote Sheet to be provided to Consultant (quote sheet), and Consultant accepts this engagement and will devote the time called for in this Agreement at the place or places as may be mutually arranged between the Consultant and Client. Consultant will use Consultant’s best efforts to accomplish the technical and commercial goals identified by Client during the term of this Agreement. Client acknowledges that Consultant may have other confidentiality commitments and Client will not require Consultant to perform tasks which might reasonably result in Consultant’s breach of any of its confidentiality commitment. Consultant further acknowledges that Consultant has no existing obligations to any third party, as employee, consultant, or otherwise, that would conflict with, or restrict Consultant’s ability to fulfill any of its commitments or obligations under this Agreement.
2.02. This Agreement will be renewed automatically for succeeding terms of one month each, unless either party gives notice to the other at least thirty days before the expiration of any term of their intention not to renew.
3.01. For time actually spent rendering service, Client will pay Consultant at the rate set forth in the t’s Quote Sheet provide by Consultant to Client.
3.02. In addition to the compensation specified in par. 3.01, above, Consultant will be paid for actual reasonable expenses authorized by Client, including travel, meals, lodging, delivery, postage, and reproduction charges; and when needed by Consultant and authorized in advance and in writing by Client, the cost of ancillary services to others.
3.03. Each expenditure referred to in Paragraph 3.02 will be reimbursable only if Consultant furnishes to Client adequate records and other documentary evidence required by federal and state statutes and regulations issued by the appropriate taxing authorities for the substantiation of each such expenditure as an income tax deduction.
3.04. Payment of all services and expenses will be made within thirty (30) days of presentation of monthly invoices.
3.05. Payment for any hardware or software purchased from Contractor shall be paid in full prior to shipment of said items.
4.01. Consultant shall perform the Services in a professional and workmanlike manner.
4.02. Irrespective of any provision to the contrary set forth in this Agreement, the warranty provided by Consultant to Client with respect to any hardware purchased for Client from Dell Computer (Dell) shall be strictly limited to the warranty provided by the manufacturer.
Consultant agrees to provide assistance to Client in asserting any warranty claim against Dell or any other manufacturer as may be required.
4.03. Consultant warrants and represents that (i) the performance of the Services by Consultant will not violate any proprietary rights of third parties including, without limitation, patents, copyrights or trade secrets, (ii) Consultant’s providing the Services to Client will not violate any applicable law, rule, regulation or judicial order, or violate any contractual obligation or confidential relationship which Consultant may have to or with any third party, and (iii) any information Consultant may supply Client or utilize with respect to performing the Services will have been obtained by Consultant lawfully.
4.04. THE WARRANTIES SET FORTH IN THIS PARAGRAPH 4 ABOVE ARE EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. CONSULTANT DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT.
5.01. Consultant agrees to make prompt and full disclosure to Client in writing the details of all inventions, discoveries, or improvements (whether patentable or not) made or conceived by Consultant, alone or with others, that arise out of, or relate to the subject matter of this Agreement.
5.02. Consultant further agrees to keep necessary records, including notes, sketches, drawings, models and data supporting all inventions and discoveries made by the Consultant, alone or with others, during the course of performing the services required under this Agreement.
5.03. Consultant further agrees to return all records described received from Client on expiration or termination of this Agreement.
5.04. Consultant further agrees to assign to Client all inventions and discoveries made by the Consultant, alone or with others, that arise out of and pertain to the services rendered under this Agreement, together with patents as may be obtained on these inventions and discoveries.
5.05. On request of Client, Consultant, alone or with others, will execute all proper papers and cooperate in the fullest degree with Client in securing, maintaining, and enforcing any patents that arise from the services rendered under this Agreement.
5.06. Consultant, alone or with others, will be compensated for Consultant’s reasonable time spent in fulfilling all obligations set forth in this paragraph 5, that arise subsequent to filing and assignment of patent applications. The compensation referred to in this paragraph will be based on Consultant’s standard hourly rate stated in par. 3 of this Agreement. Compensation will be due and payable by Client on receipt of the assignment of Consultant’s entire right, title and interest in and to an invention or improvement, as provided in Paragraph 5.04, and receipt of an itemized statement from Consultant of consultant’s time and expenses reasonably incurred in fulfilling the obligations set forth in this Article 5 with respect to that invention or improvement.
5.07. Consultant warrants that Consultant does not have any commitments to others under which Consultant is obligated to assign to them inventions or improvements, or rights on those inventions or improvements, in conflict with Consultant’s obligations to Client under this Agreement.
5.08. Consultant agrees that the payments to Consultant specified in Paragraphs 3 and 5.06 will constitute full and complete compensation for all obligations assumed by Consultant under such Agreement, and for all inventions, improvements, and patent rights assigned under this Agreement.
5.09. Consultant agrees that all drawings, designs, computer programs and software, specifications, notebooks, tracing photographs, negatives, reports, findings, recommendations, data and memoranda, or other works created by Consultant hereunder of every description arising out of and relating to the services rendered under this Agreement, together with any copyright in these materials, shall be considered “work made for hire” and, therefore, all right, title, and interest therein will vest exclusively in Client and are the confidential and proprietary property of Client or its assigns, and that Client will have the exclusive right to copyright and/or publish such material. If any of the works created by Consultant hereunder may not, by operation of law or otherwise, be considered work made for hire by Consultant for Client, or if ownership of all rights, title, and interest of the intellectual property rights therein will not otherwise vest exclusively in Client, Consultant hereby irrevocably assigns to Client, and upon the future creation thereof automatically assigns, ownership of and all right, title and interest in all such materials to Client. Consultant agrees that Consultant will not claim any additional compensation arising out of the use of these materials in any manner by Client or its assigns.
6.01. Client is aware that Consultant may be now or may in the future perform consulting services or become an employee of others. The parties also acknowledge and agree that during the term of this Agreement and in the course of the discharge of Consultant’s duties under the Agreement, Consultant will have access to and become acquainted with financial, personnel, sales, scientific, technical and other information regarding formulas, patterns, compilations, programs, devices, methods, techniques, operations, plans and processes that are owned by Client, actually or potentially used in the operation of Client’s business, or obtained from third parties under an agreement of confidentiality, and that such information constitutes Client’s “trade secrets.”
6.02. Consultant specifically agrees that it will not misuse, misappropriate, or disclose in writing, orally, or by electronic means, any trade secrets, directly or indirectly, to any other person or use them in any way, either during the term of this Agreement or at any other time thereafter, except as is required in the course of Consultant’s engagement.
6.03. Consultant acknowledges and agrees that the sale or unauthorized use or disclosure in writing, orally, or by electronic means, of any of Client’s trade secrets obtained by Consultant during the course of its engagement under this Agreement, including information concerning Client’s actual or potential work, services, or products, the facts that any such work, services, or products are planned, under consideration, or in production, as well as any descriptions thereof, constitute unfair competition. Consultant promises and agrees not to engage in any unfair competition with Client, either during the term of this Agreement or at any other time thereafter.
6.04. Consultant agrees that all files, records, documents, drawings, specifications, equipment, software, and similar items, whether maintained in hard copy or in electronic form, relating to Client’s business, whether prepared by Consultant or others, are and will remain exclusively the property of Client and that they will be removed from Client’s premises or, if kept in electronic form, from Client’s computer systems .
7.01. Consultant agrees that all of the business information related specifically to Client developed by or communicated by or to Consultant in the performance of the services described in this Agreement is of a highly confidential nature, and that, unless the Consultant has the prior written approval of Client, no use or oral or written disclosure of that information by the Consultant will be made either during or after the term of this Agreement, except that Consultant may disclose that information to persons including the employees of Client or its subsidiaries or affiliated companies who may be designated to work with the Consultant.
7.02. The restriction of Paragraph 7.01 does not apply to information which the Consultant can demonstrate was at the time of the execution of this Agreement:
7.03. Consultant acknowledges that Client regards its mere interest in the subject matter discussed with Consultant to be a matter of strict confidentiality. Consultant therefore agrees that Consultant will not disclose to any third party, at any time, any of the subject matter of this Agreement.
8.01. Contractor’s obligation to maintain the confidentiality of business information shall not expire until such information satisfies one factor listed in paragraph 7.02 above.
9.01. Consultant will have full control and discretion as to the ways and means of performing any and all services to be provided under this Agreement. It is understood that in the performance of this Agreement Consultant is not in any way acting as an employee of Client, and Consultant will be responsible for all taxes, social security payments, and other similar payments or contributions due as a result of any payments made pursuant to the terms of this Agreement. It is understood and agreed that the Consultant is an independent contractor in respect to Consultant’s relationship to Client, and that Consultant is not and should not be considered an agent or employee of the Client for any purpose. Consultant agrees not to represent itself as an agent or employee of the Client at any time.
9.02. Nothing in this Agreement will be construed or implied to create a relationship of partners, agency, joint venturers, or of employer and employee between Consultant and Client.
10.01. In consideration of the agreements made between the parties to this Agreement, Client shall indemnify and hold harmless Consultant, its members, directors, officers, contractors, agents, representatives and employees from any liability and damages and costs (including reasonable costs and attorneys’ fees) arising out of or relating to services performed or goods provided by Consultant to Client including, without limitation, claims arising from work or labor performed, or for materials or supplies furnished to or at the request of Client in connection with performance of any work done for Client by Consultant or claims arising from any breach or default on the part of Consultant in the performance of any covenant contained in this Agreement, including, without limitation, claims that materials provided by Client to Consultant hereunder infringe any third party’s intellectual property rights or misappropriates a third party’s confidential information, or otherwise arising from the negligence or intentional acts or omissions of Client, or its members, directors, officers, contractors, agents, representatives and employees. The foregoing indemnity by Client shall not be applicable to claims to the extent arising from the gross negligence or willful misconduct of Consultant, its officers, contractors, employees or representatives.
11.01. NEITHER PARTY WILL BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.02 . No action, regardless of the form, arising from or relating to this Agreement, may be brought by either party more than one (1) year after the cause of action has occurred, except that an action of non-payment may be brought within four (4) years of the last payment.
11.03. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
12.01. Notwithstanding any other provision of this Agreement, either party may terminate this Agreement at any time by giving 30 days written notice to the other party. Unless otherwise terminated as provided in this Agreement, this Agreement will continue in force for the time specified in Par. 2.
12.02. This Agreement will terminate automatically on the occurrence of any of the following events:
12.03. If either party defaults in the performance of this Agreement or materially breaches any of its provisions, the non-breaching party may terminate this Agreement by giving ten (10) days’ prior written notification to the breaching party and such material breach is not cured or capable of being cured within such notice period. Termination will take effect immediately on receipt of notice by the breaching party or five days after mailing of notice, whichever occurs first or upon the end of the cure period. For the purposes of this paragraph, material breach of this Agreement includes, but is not limited to, the following:
13.01. Any notice required under this Agreement shall be deemed delivered: (1) via Email provided that the sending party shall receive proof that such email was delivered to the recipient; (2) three (3) days following deposit in the U.S. Mail, first class, postage prepaid, or (3) via reliable overnight courier, which shall be effective upon receipt by the party to whom such notice is delivered. Any such notice shall be sent by Client to Contractor at the address set forth in the first paragraph of this Agreement or to email address: ____________________. Any such notice may be sent by Contractor to Client at Client’s registered address on file with Contractor. Client may visit Contractor’s website at any time if it wishes to change its address or contact information.
13.02. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Sonoma County, California before one arbitrator, who shall be an attorney practicing for at least 10 years or a retired judge selected from the JAMS neutral panel. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
13.03. If any legal action is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to which that party may be entitled. This provision will be construed as applicable to the entire contract.
13.04. Any modification of this Agreement will be effective only if it is in writing and signed by the party to be charged.
13.05. The failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this Agreement by the other party will not be deemed a waiver of that term, covenant, or condition, nor will any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times.
13.06. If any provision in this Agreement is held by an arbitrator or a court or of competent jurisdiction or to be invalid, void, or unenforceable, the remaining provisions of this Agreement will nevertheless continue in full force without being impaired or invalidated in any way.
13.07. This Agreement will be governed by and construed in accordance with the laws of the State of California. The Parties hereby agree that any action arising out of this Agreement will be brought solely under the relevant courts located in the in any state or federal court located in or nearest to Sonoma County, California. Both parties hereby submit to the exclusive jurisdiction and venue of any such court.
CLIENT’S ACCEPTANCE TO THIS AGREEMENT SHALL BE INDICATED BY CLICKING “HERE”.
AFTERTEC, LLC WEB HOSTING AGREEMENT
This Aftertec, LLC Web Hosting Agreement (“Agreement”) is entered into between you, as “Customer” and between Aftertec, LLC with offices at 159 Kentucky Street, Petaluma, CA 94954 (“Aftertec” or “Host”). By accepting this Agreement and using Aftertec’s Website Hosting Services Customer agrees to be bound by all the terms and conditions of this Agreement.
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, INCLUDING LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. The terms and conditions of this Agreement apply to the purchase and sale of web hosting services or goods through Host. By placing an order for such products and services on this website, you agree to be bound by and accept these terms and conditions. If you do not agree to these terms and conditions, you should not obtain products or services from this website.
1.1. Licensed Software. “Licensed Software” means ___________________________ [list of any software that customer will access via their web hosting account].
1.2. Customer Data. “Customer Data” means information disclosed to Host during the term of this Agreement, including information related to Customer’s end users, technology, operations, facilities, markets, products, capacities, systems, procedures, security practices, research, development, business affairs, ideas, concepts, innovations, inventions, designs, business methodologies, improvements, trade secrets, and other proprietary information.
1.3. Century Compliant. “Century Compliant” means that a hardware or software component will: (a) store and process all date-related information in a manner that unambiguously identifies the century for all date values before, during and after the year 2000; (b) correctly and consistently calculate, sort and report all date information processed by the component; (c) calculate, sort, report and otherwise operate correctly, consistently and without interruption before, during or after the year 2000; (d) report and display all dates in four digits so that the century is unambiguously identified; and (e) correctly handle all leap years, including but not limited to the year 2000.
1.4 Hosting Services. “Hosting Services” means the services described in Section 2 of this Agreement.
1.5. Web Site. “Web Site” means Customer’s Internet presence tentatively identified as follows: ________________________.
1.6. Time and Materials. “Time and Materials” means Host services billed at the applicable daily rate in effect at the time the service is provided, plus reimbursement by Customer for travel expenses and all direct and out-of-pocket expenses reasonably incurred by Host hereunder.
2.1. Hosting Services To Be Provided. Host agrees to provide Customer with Website Hosting Services consisting of website server space, e-mail capability, internet access, domain name registration, and such additional services as may be provided by Host from time to time. A more detailed description of the services included in Customer’s service plan is attached to this Agreement as Appendix A. Host reserves the right to change or modify the features of Customer’s service plan from time to time on 30 days written or e-mailed notice to Customer. Customer’s continued use of Host’s services after receipt of such a notice of modification shall constitute Customer’s acceptance of and Agreement to be bound by the Host’s modification of the terms and conditions of this Agreement and Appendix A.
2.3. Availability of Web Site and Licensed Software.
(a) Customer expressly agrees that use of Services provided by Host is at Customer’s sole risk.
(b) Host guarantees 99.999% percent uptime for its web servers except that the Web Site may be unavailable for short periods which may not exceed three (3) hours per occasion and which may occur between the hours of 12:00 midnight and 3:00 A.M. Pacific Time only, unless otherwise authorized by Customer, for purposes of maintaining or updating the Web Site or the Licensed Software. Such unavailability shall not be considered down-time for purposes of measuring up-time availability as set forth in this Agreement. If uptime for Customer’s Web server falls below the uptime specified in this paragraph during any given month, Host will credit Customer as follows: 1/30th of Client’s monthly fee for each day during which the service falls below the uptime percentage set forth above. Any such credit shall be applied solely to future charges incurred by Customer, if there are any. This credit shall be Customer’s sole and exclusive compensation for any downtime or other unavailability of Host’s services under this Agreement. Notwithstanding the foregoing, Host is not responsible for any inability of Customer or an end users to access the Web Site or the Licensed Software due to difficulties arising from or caused by problems with the Internet or other facilities beyond Host’s control.
(c) HOST SHALL HAVE NO LIABILITY OF ANY KIND FOR ANY DAMAGES OR LOSS ARISING AS A CONSEQUENCE OF SUCH DOWNTIME OR UNAVAILABILITY.
(d) HOST, ITS AGENTS, AFFILIATES, LICENSORS OR THE LIKE, DO NOT REPRESENT OR WARRANT, EXPRESSLY OR IMPLIEDLY, THAT THEIR SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THEIR SERVICES OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THEIR SERVICES, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT.
(e) HOST, ITS OFFICERS, AGENTS, OR ANYONE ELSE INVOLVED IN PROVIDING SERVICES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE SERVICES; OR FOR ANY DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO HOST’S RECORDS, PROGRAMS, OR SERVICES.
(f) HOST WILL EXERCISE NO CONTROL OVER THE CONTENT OF THE INFORMATION PASSING THROUGH HOST’S NETWORK EXCEPT THOSE CONTROLS EXPRESSLY PROVIDED HEREIN.
(g) HOST MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, FOR THE SERVICES IT IS PROVIDING. HOST ALSO DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY BE SUFFERED BY CUSTOMER, INCLUDING LOSS OF DATA RESULTING FROM DELAYS OR NON-DELIVERIES.
2.4. Telephone Support. Host will provide telephone support assistance to Customer as reasonably requested in connection with access to and use of the Licensed Software and the Hosting Services. In case of emergency, such support shall be available 7 days per week, 24 hours per day.
3.1. Base Fee. Customer agrees to pay the base fee for monthly services set forth in Exhibit A.
3.2. Time and Materials. Services in addition to those set forth at Exhibit A will be provided on a Time and Materials basis, which will be invoiced to customer monthly, and payable within thirty (30) days of invoice.
4.1. Term. The term of this Hosting Services exhibit shall begin on the Effective Date, and shall continue for an initial term of one (1) year, unless terminated as set forth herein. One year will be the standard billing period under this agreement. At the conclusion of the one year initial term, this Agreement shall automatically renew for successive terms of one (1) year, unless either party gives notices of its election to terminate this agreement at least thirty (30) days prior to the expiration of the then-current term.
4.2. Termination for Convenience. Customer or Host may terminate this Agreement at any time, with or without cause, upon 24 hours’ notice to the other party hereto. If Customer terminates Customer’s account for a breach of this Agreement under this Paragraph, Host shall not be required to refund any amounts billed for remainder of the billing period in which Customer terminates Hosts services
4.3. Termination for Breach. Host may terminate this Agreement at any time, with or without notice, if the Web Site is used for illegal or immoral or other purposes deemed objectionable by Host, which may be determined by Host in its sole discretion. Any violation by Customer of the terms of this Agreement or of Host’s general use policies shall be grounds for immediate termination of Customer’s account for cause. If Host terminates Customer’s account for a breach of this Agreement under this Paragraph, Host shall not be required to refund any amounts billed for the billing period in which Host terminates Customer’s services.
4.4. Termination. Upon termination or expiration of this Hosting Services Agreement, and any other time upon Customer’s written request, Host will deliver all work in progress to Customer, including, but not limited to, Customer Data and all other Customer materials delivered to Host.
5.1. Customer Data. Host acknowledges that Customer Data is considered to be confidential information.
5.2. Host Information. Customer acknowledges that Host’s pricing, products, services, marketing, sales plans, estimates, financial data, operations, customer relations or service, business performance results, technical information, designs, processes, procedures, formulas, inventions, know-how, improvements, documents, reports, data, specifications, computer software, flow charts and databases are considered to be confidential information.
5.3. Confidentiality Obligations. All confidential or proprietary information shall be held in confidence by the other party to the same extent and in at least the same manner as such party protects its own confidential or proprietary information, but not less than reasonable care. Neither party shall use the other party’s confidential information for any purpose other than to fulfill its obligations under this agreement, and neither party will disclose the other party’s confidential information other than to employees who have a need to know such information in order to fulfill the party’s obligations hereunder and who have agreed in writing to abide by the confidentiality provisions of this agreement, or as required by law or regulation.
5.4. Audits. Upon notice from Customer, Host shall provide such auditors and inspectors as Customer or any regulatory authority may designate in such notice with reasonable access during normal business days and hours to the service locations for the purpose of performing audits or inspections of the business of Customer (including Host’s provision of the services). Host shall provide such auditors and inspectors any assistance and work space that they may reasonably require. Host shall not be required to provide such auditors and inspectors access to data of Host customers other than Customer.
5.5. Hardware, Equipment, and Software. Customer is responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access Host servers. Host makes no representations, warranties, or assurances that Customer’s equipment will be compatible with Host Services.
7.1. Indemnification. Customer agrees to defend, indemnify, and hold Host harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against Host, its agents, servants, officers, and employees, that may arise or result from any Service provided or performed or agreed to be performed or any product sold by Customer, Customer’s agents, employees, or assigns. Customer further agrees to defend, indemnify, and hold harmless Host against liabilities arising out of:
(a) Any liability to Host arising by virtue of any use of Host’s services by Customer for any unlawful purpose, or in violation of any valid federal, state, or local law or regulation governing use of e-mail or the Internet;
(b) Any injury to person or property caused by any products sold or otherwise distributed in connection with Services provided to Customer;
(c) Any material supplied by Customer infringing or allegedly infringing on the property or proprietary rights of a third party;
(d) Copyright or trademark infringement by Customer, or violation by Customer of intellectual property rights of any other party; and
(e) Any defective product which Customer sold or distributed by means of Services.
8.1. EACH PARTY’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES. NEITHER PARTY WILL BE HELD LIABLE FOR ANY INDIRECT OR SPECULATIVE DAMAGES (INCLUDING, WITHOUT LIMITING THE FOREGOING, CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES, LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS) REGARDLESS WHETHER THE OTHER PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO HOST UNDER THIS AGREEMENT DURING ANY 12-MONTH PERIOD.
9.1. Network Security. Customer is prohibited from violating or attempting to violate the security of the network. Violations of system or network security may result in civil or criminal liability in addition to immediate termination of Customer’s Agreement. Host will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Customers who are involved in such violations. These violations include, without limitation:
(a) Accessing data not intended for the Customer or logging into a server or account that the Customer is not authorized to access.
(b) Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization.
(c) Attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, “flooding,” “mail bombing,” or “crashing”.
(d) Forging any TCP/IP packet header or any part of the header information in any e-mail or news group posting.
(e) Taking any action in order to obtain services to which the Customer is not entitled.
(f) Allowing unauthorized to access Customer’s account by reason so Customer’s failure to exercise reasonable care.
9.2. Customer Warranty Against Unlawful Use. Customer warrants and represents that Customer shall use Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of Customer’s account for cause.
10.1. Arbitration. All claims, disputes and other matters in question between the Parties arising out of or relating to this Agreement shall be decided by binding arbitration before a single arbitrator from JAMS in Santa Rosa, California, who shall be a retired judge, which shall be conducted in accordance with the JAMS Streamlined Arbitration Rules and Procedures unless the Parties mutually agree otherwise. The hearings shall take place in Santa Rosa, California, unless some other location is agreed upon by the Parties.
10.2. Judicial Procedure. Nothing in Section 10.1 shall be construed to prevent any party from seeking from a court a temporary restraining order or other temporary or preliminary relief pending final resolution of a dispute pursuant to Section 10.1.
10.3. Assignment. Host may assign all or part of the payments under this Agreement by written notice to Customer. Otherwise, neither Party may assign its rights or obligations hereunder without the written consent of the other Party, which consent shall not be unreasonably withheld, provided that, no such consent shall be required in the event of (I) a transfer of all or substantially all of the assets of the Party desiring an assignment; (ii) assignment to the parent, affiliate or subsidiary companies of a Party or (iii) a merger or reorganization of the entity desiring the assignment.
10.4. Performance Excused. A Party shall be excused from failure to perform hereunder to the extent that such failure is directly or indirectly caused by any occurrence commonly known as force majeure, including, without limitation, delays arising out of acts of God, acts or orders of a government, agency or instrumentality thereof, acts of public enemy, riots, embargoes, strikes or other concerted acts of workmen (whether of the providing party or other persons), casualties or accidents, deliveries of materials, transportation or shortage of cars, trucks, fuel, power, labor or materials, or any other causes, circumstances or contingencies within or without the United States of America, which are beyond the control of the Party.
10.5. Century Compliant. Host warrants that the Licensed Software and the Hosting Services will be Century Compliant.
10.6. Governing Law. The laws of the State of California shall govern this Agreement, without regard to the conflict of laws principles thereof.
10.7. Severability. Any portion or provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining portions or provisions hereof in such jurisdiction or, to the extent permitted by law, rendering that or any other portion or provision hereof invalid, illegal or unenforceable in any other jurisdiction.
(a) Customer agrees to keep Host informed of all current contact information for Customer’s account. Changes in Customer’s account information may be reported to Host at the email address set forth below. Failure to maintain or keep current all contact information shall be a ground for Host to terminate Customer’s account for cause.
(b) Any notice required under this Agreement shall be deemed delivered: (1) via Email provided that the sending party shall receive proof that such email was delivered to the recipient; (2) three (3) days following deposit in the U.S. Mail, first class, postage prepaid, or (3) via reliable overnight courier, which shall be effective upon receipt by the party to whom such notice is delivered. Any such notice shall be sent by Client to Contractor at the address set forth in the first paragraph of this Agreement or to email address: ____________________. Any such notice may be sent by Contractor to Client at Client’s registered address on file with Contractor. Client may visit Host’s website at any time if it wishes to change its address or contact information.
CLIENT’S ACCEPTANCE TO THIS AGREEMENT SHALL BE INDICATED BY CLICKING “HERE”.