Solution Service Agreement
The following agreement (”Agreement”) contains the complete terms and conditions that will apply between you (”Customer”) and Wevio NYC LLC.( DBA ”THEWEBASP.COM”), a business office and address at 275 Broadway 4th floor, New York NY 10016, if all of the following conditions are met: (1) you read and agree to the terms and conditions of the Agreement and indicate your acceptance of the terms and conditions of the Agreement by clicking “I Agree” at the Order Page; (2) you fully and correctly submit all information requested of you in the following Order Form; and (3) you submit proper payment pursuant to Section 3, of this Agreement. This Agreement shall become effective on the date (the “Effective Date”) that payment is received and accepted by THEWEBASP.COM.
THEWEBASP.COM IS WILLING TO PROVIDE DESIGN, DEVELOPMENT SERVICES, SOFTWARE AND HOSTING SERVICES TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS HEREIN, THEWEBASP.COM IS UNWILLING TO PROVIDE SERVICES TO YOU.
WHEREAS, THEWEBASP.COM has developed, owns and markets proprietary, Internet-based website solution - online shop solutions, online catalog solution, other web related services and offers web site hosting services on the Internet; and WHEREAS Customer wishes to make use of the Web solutions and retain the web site hosting services of THEWEBASP.COM; WHEREAS Customer wishes to purchase the web design and development services of THEWEBASP.COM; NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, THEWEBASP.COM and Customer agree as follows:
A. “Customer’s Content” means any computer programs, designs, data, video or audio materials, graphics or other materials and all material developed, purchased, or otherwise acquired by Customer that is published, made available or otherwise used in conjunction with Customer’s Web Site. Customer’s Content includes, but is not limited to, end user data collected by Customer, and information regarding merchandise or services sold by Customer through its Web Site.
B. “Hosting Services” means the services described in Section 2.A of this Agreement.
C. “Software” means the THEWEBASP.COM Website software - WEBSITE SOLUTION, ONLINE SHOP SOLUTION, ONLINE CATALOG SOLUTION, current release version, including any updates provided by THEWEBASP.COM, and THEWEBASP.COM’s proprietary technology and source code.
D. “THEWEBASP.COM’s Content” means any and all material developed by THEWEBASP.COM and made available for use by Customer, including any designing of Customer’s Web Site, and templates prepared by THEWEBASP.COM for use by Customer.
E. “Web Site” means Customer’s Internet presence, identified by the domain name provided by Customer.
F. “Deliverables” means any work designed, created, and/or produced by THEWEBASP.COM in connection with this Agreement and as further set forth in the Statement of Work.
G. “Statement of Work” means the information provided by Customer to THEWEBASP.COM in responses to the Design Preferences Form.
H. “Development Services” means the services described in Section 2 of this Agreement.
I. “Custom Work Product” means all designs, discoveries, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, information, and materials made, conceived, or developed by THEWEBASP.COM after the Effective Date on behalf of Customer in furtherance of the Web Site or other Services provided to Customer under the terms of this Agreement, and paid for by Customer. Custom Work Product does not include any preexisting software owned by THEWEBASP.COM, or any Customer Content or any third party software products incorporated into the Custom Work Product.
J. “Generic Modules” means discrete computer program subroutines that are not specific to the functions of the Custom Work Product but are useful generally in THEWEBASP.COM’s business and that are designated as “Generic Modules” in writing signed by both parties.
K. “THEWEBASP.COM Technology” means any and all existing software, technology, know how, algorithms, procedures, techniques, and solutions associated with the use, design, development, testing, and distribution of the Custom Work Product and improvements to such existing software and related technology, which technology is owned by THEWEBASP.COM or its suppliers and used by THEWEBASP.COM in the development effort hereunder.
L. “Intellectual Property” means intellectual property or proprietary rights, including but not limited to copyright rights, moral rights, patent rights (including patent applications and disclosures), rights of priority, mask work rights, and trade secret rights, recognized in any country or jurisdiction in the world.
2. SOFTWARE AND HOSTING SERVICE
A. Hosting Services. THEWEBASP.COM shall provide storage for the Software, and content of Customer’s Web Site and make it available for end-users to access;
B. Service Levels. THEWEBASP.COM shall provide the Hosting Services in substantial compliance with the hosting functionality service levels set forth in the SLA.
C. Service Level Warranty. THEWEBASP.COM guarantees that the network will be available 99% of the time in a given month. This service level warranty shall not apply to performance issues: (1) to the extent caused by factors outside of THEWEBASP.COM’s reasonable control; (2) that resulted from any actions or inactions of Customer or any third parties not affiliated with THEWEBASP.COM; (3) that resulted from Customer’s equipment and/or third party equipment; (4) that resulted from software related issues; or (5) that are scheduled by THEWEBASP.COM for purposes of maintaining or updating the Web Site or the Software. Upon experiencing downtime, THEWEBASP.COM will refund a customer 5% of the monthly fee for each 30 minutes of downtime (up to and not to exceed 100% of customer’s monthly fee). Network downtime exists when a particular customer is unable to transmit and receive data and THEWEBASP.COM records such failure in the THEWEBASP.COM trouble ticket system. Network downtime is measured from the time the trouble ticket is opened by the customer to the time the server is once again able to transmit and receive data. If Customer fails to comply with this requirement, Customer forfeits its right to a receive service credit.
3. WEB SITE DEVELOPMENT SERVICES
A. Development Services. THEWEBASP.COM agrees to provide web site development, and related services that substantially comply with the Statement of Work.
B. Testing. THEWEBASP.COM will provide Customer with a link to the Deliverables. Customer shall have 14 days after THEWEBASP.COM provides the link to inspect and test the Deliverables to determine if it conforms to the Statement of Work. If the Deliverables fail to materially conform to the specifications in the Statement of Work, Customer shall give THEWEBASP.COM written notice of the failure describing the defect in the Deliverable with sufficient specificity so as to allow THEWEBASP.COM to easily identify and rectify the failure. Such specificity should include specific page, file or URL references and detailed information about the nature of the defect.
C. Time to Cure. THEWEBASP.COM shall then have 30 days to remedy such failure or defect and redeliver such Deliverables to Customer. Customer shall have 14 days after THEWEBASP.COM redelivers to inspect and test the Deliverables to determine if it conforms to the Statement of Work. If the Deliverables continue to fail to materially conform to the specifications in the Statement of Work, then: (i) either Party may terminate this Agreement; or (ii) if both Parties agree, THEWEBASP.COM will be given an opportunity to cure any defects in accordance with this section.
D. Acceptance. The Deliverables shall be deemed to be accepted (a) upon written notice by Customer to THEWEBASP.COM of such acceptance or (b) upon expiration of the time period for Customer’s inspection without written notice to THEWEBASP.COM that the Customer believes the Deliverables fail to conform to Specification in the Statement of Work. Customer shall not unreasonably withhold or delay acceptance.
A. Fees. In consideration of the Design and Development Services, Customer will pay to THEWEBASP.COM all fees due according to the prices and terms listed in the order invoice. All sales are final, and THEWEBASP.COM offers no partial or full refunds. In consideration of the Hosting services, Customer will pay to THEWEBASP.COM all fees due according to the prices and terms listed on the invoice. The first software and hosting fee will be pro-rated for total days in first month, where applicable. After first month, software and hosting fee is due in full on the 1st of each month. All sales are final and THEWEBASP.COM offers no partial or full refunds of any kind on any purchase, unless meeting the following requirement: the purchase is made for THEWEBASP.COM Web Solutions (includes Website Builder, Online Shop, Online Catalog) and the account is cancelled within 30 days of the initial purchase. Only under these conditions, will the Customer receive a full refund of their first Monthly Fee only. There are no refunds of the Monthly Fee if the account is cancelled after that 30 day period. THEWEBASP.COM offers no partial or full refunds whatsoever on the Setup Fee, the purchase or set-up of an SSL Certificate or on any other product or service offered through THEWEBASP.COM, other than the Monthly Fee for Small Business Solutions on accounts cancelled within 30 days of the initial purchase. However monthly recurring fees will be prorated if first month consists of less than a full calendar month.
B. Change in Fees. THEWEBASP.COM may change its fee schedules on sixty (60) days notice by postal mail, electronic mail, or by posting the same on THEWEBASP.COM’s own Web Site. Upon such notice, Customer shall have thirty (30) calendar days prior to the effective date of the fee schedule to notify THEWEBASP.COM by certified postal mail should it not agree to such rate increase and that Customer wishes to terminate this Agreement.
C. Payment. Design, Development and setup fees are due immediately .THEWEBASP.COM will invoice Customer once a month for software and hosting services and all payments are due within five (5) days after THEWEBASP.COM submits its invoice. If a payment is returned or rejected by THEWEBASP.COM’s bank, or incurs additional costs for THEWEBASP.COM (e.g., bank fees) for any reason, then Customer shall pay a service fee of $40 and reimburse all such fees and costs incurred by THEWEBASP.COM, and Customer shall be immediately deemed to be in default of this Agreement. Accounts not paid in full by the tenth day after THEWEBASP.COM submits its invoice may have their service interrupted or terminated, but any interruption does not relieve Customer from the obligation to pay all fees due to THEWEBASP.COM, including the monthly account charge. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, until fully paid. If Customer defaults, Customer agrees to pay THEWEBASP.COM its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights.
D. Taxes. All fees charged by THEWEBASP.COM for the Hosting Services are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Hosting Services, all of which Customer will be responsible for and will pay in full, except for taxes based on THEWEBASP.COM’s net income. If THEWEBASP.COM is required to pay directly any such taxes, Customer will, upon receipt of THEWEBASP.COM’s invoice, promptly reimburse THEWEBASP.COM for any such taxes paid by THEWEBASP.COM.
Customer may not sublicense or resell any of THEWEBASP.COM’s Software or Hosting Services to any third parties without the prior written permission of THEWEBASP.COM. As an example, Customer may not provide Web Hosting services to any third party without THEWEBASP.COM’s prior written permission. Any attempts to do so would be considered a material breach and grounds for termination of this Agreement.
6. USE OF CUSTOMER’S NAME AND TRADEMARKS
Customer hereby grants THEWEBASP.COM a non-exclusive right and license to use Customer’s name and such of Customer’s trade names, trademarks, and service marks (collectively, “Customer’s Marks”) as are listed on Customer’s Content or otherwise provided to THEWEBASP.COM in connection with this Agreement (a) on THEWEBASP.COM’s own Web Sites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing THEWEBASP.COM’s Services, and, (c) in applications reasonably necessary and ancillary to the foregoing. Customer may use THEWEBASP.COM’s trade name, trademarks, and service marks (collectively, “THEWEBASP.COM’s Marks”) in advertising and publicity in conjunction with the offering of Customer’s Content via THEWEBASP.COM, provided that Customer shall submit copy to THEWEBASP.COM for its prior written approval, and provided further that under no circumstances shall such use imply that THEWEBASP.COM endorses, sponsors, certifies, approves or is responsible for Customer’s Content. Notwithstanding the foregoing, Customer need not obtain THEWEBASP.COM’s prior written approval where use of THEWEBASP.COM’s Marks is limited to inclusion in a list of systems via which Customer’s Content is available.
7. TERM AND TERMINATION
A. Term. The term of this Hosting Services Agreement shall begin on the Effective Date, and shall continue on a month to month basis, unless either Party gives the non-terminating Party Thirty (30) days notice of its election to terminate this Agreement.
B. Termination for Breach. Each Party shall have the right to terminate this Agreement upon Fifteen (15) days prior written notice if the other Party is in material breach of any term of this Agreement, including without limitation the payment of monies, and the breaching Party fails to remedy such breach within the fifteen day notice period.
C. Cancelling Accounts. To cancel your account, your request must be received in writing by certified mail in addition to our online form. Please send your written request to TheWebASP.com at 275 Broadway 4th floor, New York NY 10016. To ensure that you are not billed for another month of service, you must cancel your account before your billing cycle due date. All accounts requesting cancellation are terminated upon receipt of submission. Cancellation requests submitted before the completion of a billing cycle will not receive a prorated refund.
8. ACCEPTABLE USE POLICIES
A. Acceptable Use Policy. THEWEBASP.COM maintains on its Web site THEWEBASP.COM’s then-current Acceptable Use Policy (”AUP”). Customer agrees to abide by the AUP. THEWEBASP.COM may modify its AUP at any time, and shall post the then-current AUP on THEWEBASP.COM’s Web site, which will be effective upon posting.
B. End Users to Comply with AUP. Customer acknowledges that THEWEBASP.COM may terminate an end user’s access to Customer’s Web Site for noncompliance with THEWEBASP.COM’s AUP. THEWEBASP.COM may thus terminate such end user’s access to Customer’s Content even if the end user has not violated Customer’s own terms and conditions of use of its Web Site. THEWEBASP.COM acknowledges that Customer may terminate a User’s access to Customer’s Content for noncompliance with Customer’s terms and conditions.
Customer acknowledges that the Internet is not a secure or completely reliable system, and that the purpose of the Hosting Services is to allow end users easy access to Customer’s Content. THEWEBASP.COM will take those precautions THEWEBASP.COM deems reasonable in its sole discretion to secure Customer’s Web Site from attack, but THEWEBASP.COM makes no warranty that there will be no outages or interruptions of service, or that Customer’s Content will be secure against attack of any form by end users or other third parties.
10. CUSTOMER’S CONTENT
A. Ownership of Content. Customer acknowledges and agrees that (a) unless expressly stated elsewhere, THEWEBASP.COM has no proprietary, financial, or other interest in Customer’s Content; (b) THEWEBASP.COM does not, by virtue of offering or hosting Customer’s Content, edit, distribute, market, sublicense, publish, or otherwise provide Customer’s Content to end users; and (c) Customer is solely responsible for the information, data, graphics, text, quality, performance, and all other aspects of its Content. Customer warrants that it owns or has the right to use and offer the Content in connection with Customer’s Marks in the manner in which such Content is offered and will be offered by Customer during the term of this Agreement.
B. Protection of Content. Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its Content. Although THEWEBASP.COM provides data backup services, Customer is advised that THEWEBASP.COM in no way is responsible for any damages resulting from the loss of Customer’s Content, regardless of the reason for such loss. Customer is solely responsible for backing-up/archiving Customer’s Content.
11. THEWEBASP.COM’S CONTENT
Upon payment of any fees charged for the development of THEWEBASP.COM’s Content, THEWEBASP.COM hereby provides Customer with a non-exclusive, royalty-free, irrevocable, non-supported license to use THEWEBASP.COM’s Content as part of Customer’s Web Site. Customer agrees to maintain any program contents through its own administration control panel or request special customization request to THEWEBASP.COM.
12. RIGHTS IN DATA AND WORKS
A. Grant of License. Upon final and full payment of all fees associated with the Deliverables, THEWEBASP.COM grants to Customer a limited, non exclusive, license to use, reproduce, display, and perform, works based upon the Deliverables, THEWEBASP.COM Technology, the Generic Modules, and all Intellectual Property rights contained in the Custom Work Product. This license shall only extend to the extent necessary for the Customer to maintain a Web Site while hosted with THEWEBASP.COM.
B. THEWEBASP.COM’s Rights. Custom Work Product, Software, THEWEBASP.COM’s Content, THEWEBASP.COM Technology, the Generic Modules, and all Intellectual Property rights contained therein are and will remain the sole and exclusive property of THEWEBASP.COM.
C. THEWEBASP.COM’s Rights to Customer Content. Customer grants to THEWEBASP.COM a non exclusive, worldwide, perpetual, royalty free license to reproduce, modify, display, perform, adapt, transmit, distribute, improve, and otherwise use the Customer Content in connection with THEWEBASP.COM’s performance under this Agreement.
D. THEWEBASP.COM’s Right to Re-Use Deliverables. Customer understands and specifically acknowledges that THEWEBASP.COM may, in its sole discretion, use some or all of the Deliverables (excluding Customer Content) in the future in commercial development projects for other customers. Nothing in this Agreement shall be construed to limit THEWEBASP.COM’s right to do so or to use any information in non-tangible form retained by THEWEBASP.COM as ideas, information and understandings retained in the human memories of its employees, contractors and agents, provided that THEWEBASP.COM may only use information of general applicability and not Customer’s Confidential Information. This provision shall not be construed to operate to grant THEWEBASP.COM any rights under Customer’s patents or copyrights.
E. Customer to Cooperate. Customer will provide reasonable assistance and cooperation to THEWEBASP.COM to acquire, transfer, maintain, perfect, and/or enforce the Intellectual Property rights in the Web Site (excluding Customer Content) and Custom Work Product, including, but not limited to, execution of a formal assignment or such other documents as may be reasonably requested by THEWEBASP.COM. Customer hereby appoints the officers of THEWEBASP.COM as Customer’s attorneys in fact to execute such documents on Customer’s behalf for this purpose.
F. Security Interest. To the extent that Customer has any interest or right with respect to the Deliverables, such interest or right shall be subject to (and Customer hereby grants to THEWEBASP.COM) a security interest to the extent of the difference between the payments that are due and are actually made by the Customer for such Deliverables and the fees set forth in Exhibit A. Upon request of THEWEBASP.COM, Customer shall execute any instrument required to perfect such security interest.
13. PROHIBITED PRACTICES
THEWEBASP.COM shall have no duty or obligation to monitor Customer’s Content or any other Content provided or distributed by others, and THEWEBASP.COM shall not edit or otherwise exercise any control over Customer’s Content. Nevertheless, THEWEBASP.COM may, in its sole discretion at any time, without notice to Customer, and without liability to Customer, remove from public view, disconnect, or terminate the hosting of any of Customer’s Content or other Content that THEWEBASP.COM deems in its sole discretion to be offensive or illegal, for any one or more of the following reasons: (i) illegal or sexually explicit Content or activities, or any Content that allegedly violates the law, rules or regulations of any country or subdivision thereof; (ii) the content constitutes harassment of Users, including, but not limited to, by means of Customer’s billing practices; or (iii) Customer’s noncompliance with or material breach of any of the terms and conditions of the AUP or this Agreement.; or (iv) claims made by third parties against THEWEBASP.COM that Customer or any of its end users has engaged in one or more of the above practices.
14. POINT OF CONTACT
Customer shall designate a single Point of Contact in the accompanying Order Form. Customer’s Point of Contact shall have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer agrees that THEWEBASP.COM may rely on representations made by Customer’s Point of Contact. Customer may change its Point of Contact at any time by giving written notice to THEWEBASP.COM in accordance with the notice provisions of this Agreement. THEWEBASP.COM is under no obligation to accept instructions from anyone other than the Point of Contact.
15. CUSTOMER’S INDEMNIFICATION
Customer shall indemnify and hold harmless THEWEBASP.COM from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys fees, arising from or relating to Customer’s provision, or an end user’s use, of Customer’s Content, or any act, error, or omission of Customer in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, or other intellectual property or other right; or violation of any applicable law.
Each party warrants and represents to the other party that it has the complete right to enter into and perform its responsibilities under this Agreement.
17. DISCLAIMER OF WARRANTIES
THE FOREGOING WARRANTIES ARE MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE AND HOSTING SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND VOLUSION NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR VOLUSION ANY OTHER LIABILITY IN CONNECTION WITH ANY SOFTWARE OR HOSTING SERVICES PROVIDED UNDER THIS AGREEMENT.
18. LIMITATION OF LIABILITY
THEWEBASP.COM ASSUMES NO RESPONSIBILITY WITH RESPECT TO CUSTOMER’S OR END USER’S USE OF THE SOFTWARE OR HOSTING SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF VOLUSION IS AWARE OF THE POSSIBILITY THEREOF. THEWEBASP.COM SHALL IN NO EVENT BE LIABLE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY IT FROM CUSTOMER FOR THE SERVICES DURING ANY 12-MONTH PERIOD.
19. NO ASSIGNMENT BY CUSTOMER
Customer may not assign this Agreement without the prior written consent of THEWEBASP.COM, which THEWEBASP.COM may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written permission shall be deemed null and void. THEWEBASP.COM may assign this Agreement, which shall be effective upon written notice provided to Customer.
(i) Any notice or other communication (”Notice”) required or permitted under this Agreement other than notice pursuant to section 7B, shall be in writing and either delivered personally or sent by facsimile, overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested, to the address listed above in this Agreement, for THEWEBASP.COM or the address provided in the application form submitted with the payment for Customer; (ii) a Notice delivered personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by facsimile shall be deemed given when transmitted, provided that confirmation of that transmission was received. A Notice sent by overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been sent. A Notice that is sent by certified mail or registered mail shall be deemed given forty eight (48) hours after it is mailed. If any time period in this Agreement commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given; (iii) either party may designate, by Notice to the other, substitute addresses, addressees or facsimile numbers for Notices, and thereafter, Notices are to be directed to those substitute addresses, addressees or facsimile numbers.
(i) The laws of the State of New Jersey shall govern the validity and construction of this Agreement and any dispute arising out of or relating to this Agreement, without regard to the principles of conflict of laws; (ii) THE PARTIES SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, (iii) a ruling by any court that one or more of the provisions contained in this Agreement is invalid, illegal or unenforceable in any respect shall not affect any other provision of this Agreement. Thereafter, this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had been amended to the extent necessary to be enforceable within the jurisdiction of the court making the ruling and to preserve the transactions originally contemplated by this Agreement to the greatest extent possible; (iv) the section and subsection headings have been included for convenience only, are not part of this Agreement and shall not be taken as an interpretation of any provision of this Agreement.; (v) this Agreement may be amended, waived, changed, modified or discharged only by an agreement in writing signed by all of the parties; (vi) this Agreement represents the entire understanding of the parties with respect to the subject matter hereof, and there are no representations, promises, warranties, covenants or understandings with respect thereto other than those contained in this Agreement. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any purchase order issued by Customer with respect to the Hosting Services provided under this Agreement shall not be applicable and that any acceptance of such purchase order by THEWEBASP.COM shall be for acknowledgment purposes only; (vii) failure to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of that term, covenant or condition or of any other term, covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time; (viii) the remedies set forth in this Agreement are cumulative and are in addition to any other remedies allowed by law. Resort to one form of remedy shall not constitute a waiver of alternate remedies; (ix) wherever used in this Agreement, the singular shall include the plural, and the plural shall include the singular. The use of any gender, tense or conjugation shall include all genders, tenses and conjugations; (x) the Parties are independent contractors and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership; and (xi) this Agreement is only between THEWEBASP.COM and Customer, and does not make any third-party a beneficiary of this Agreement, whether known or contemplated by either party. Further, this Agreement does not make Customer a third-party beneficiary of any agreement that THEWEBASP.COM may have with third parties, nor does this Agreement make THEWEBASP.COM a third-party beneficiary of any agreement that Customer may have with third parties.
22. Acceptable Use Policy & Terms
THEWEBASP.COM collects basic client information to make your support experience the very best on the Internet. We respect your privacy, and we assure you that we will maintain and use this information responsibly.
General Browsing:THEWEBASP.COM gathers navigational information about where you go on our Web site. This information allows us to see which areas are most visited. This helps us improve the quality of visitors’ online shopping experiences by recognizing and delivering more of the features, services and products our visitors prefer. Additional non-personally identifiable information (i.e. domain type, browser version, service provider and IP address) may be collected which will provide information regarding your use of our Web site (such as the time of your last visit to a page on our site).
Disclosure of Personal Information: Any information you provide to us at this site when you establish or update an account, purchase credits online or request information (i.e. name, address, e-mail address, telephone number and credit card information), is maintained in private files on our secure Web server and our internal systems. This information is used to enable THEWEBASP.COM to deliver services to you. To ensure compliance with federal law, THEWEBASP.COM does not maintain information provided by children under the age of 16.
You should be aware that we may disclose specific information about you if necessary to do so by law or based on our good faith belief that it is necessary to conform or comply with the law or is necessary to protect the users of our Web site, the site or the public.
THEWEBASP.COM does not sell, rent or trade your e-mail address to third parties. We may, however, use third parties to help us provide services to you, such as fulfilling orders, processing payments, monitoring site activity, conducting surveys, and administering e-mails. If personally identifiable information (i.e. name, address, e-mail address, telephone number) is provided to any of these third parties, we will require that such information be maintained by them in strictest confidence.
Updating Personal Information:We prefer to keep your personal information accurate and up-to-date. To do this, we provide you with the opportunity to update or modify your personal information including billing and shipping information by logging into your account.
Use of Forums / Discussion Boards:None of the information contained on our Website is medical, legal, business, or other advice or opinion of THEWEBASP.COM. Any opinion expressed via this service is that of its author. Users are reminded that postings are automatic, instantaneous, and are not pre-reviewed. Additional facts and information on legal or other developments may affect the subjects discussed. Confidential information should not be discussed. THEWEBASP.COM assumes no responsibility for the content or consequences, direct or indirect, of communications by users.
Links: For your convenience, our Web site may contain links to other sites. THEWEBASP.COM is not responsible for the privacy practices or the content of such Web sites.
Questions/Changes in Policy:
THEWEBASP.COM believes in providing a safe and secure shopping experience for all of our clients. We provide stringent and effective security measures on our Web site.
It is our policy to never send private information, such as your credit card number, via e-mail. In fact, this is a practice we recommend you adopt in all of your Internet activities.
II. TERMS AND CONDITIONS (TAC)
In order to maintain our system integrity and resources we expect our customers to act responsibly. When you use any THEWEBASP.COM services, in any form, you automatically agree to the following Conditions.
We reserve the right to suspend or cancel a customer’s access to any or all services we provided when we decide that the account has been inappropriately used. In short:
* No adult content (Pornography)
* No online gambling
* No Spam, No unsolicited e-mailing
* No Warez, cracks, copyright infringement
* No Server abuse -Any attempt to undermine or cause harm to a server, or customer, of us is strictly prohibited.
* No Unauthorized use of other people’s accounts or computers
* No IRC Chat Rooms - We do not allow clients to install their own chat rooms of any kind, without approving it with the Support Team.
* Background Running Programs - Prior approval required for any programs to run continually in the background. NO IRC chat will be approved, FlashChat and MyPHPChat are two chat apps that have been approved.
* No IRC - We do not allow IRC or IRC bots to be operated on our servers.
* Payment Policies - All accounts are set up on a pre-pay basis. Setup fees are charged for all new accounts and major account changes. All pricing is guaranteed for the term of pre-payment. We reserve the right to change prices at any time, unless other terms have been agreed upon. The customer is responsible for all money owed on the account from the time it was established to the time that the customer notifies us via phone or email for a request for termination of services.
* Cancellation Policy -We reserve the right to cancel service at any time. Any violation of policies which results in extra costs will be billed to the customer (i.e. transfer, space etc.)
* Domain Registration fees are not refundable at all.
* Lawful Purposes - We reserve the right to refuse service to anyone. Customers may only use our servers for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited.
* Indemnification - Customer agrees that it shall defend, indemnify, save and hold us harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against us, our agents, our customers, 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, it’s agents, employees or assigns. Customer agrees to defend, indemnify and hold us harmless against liabilities arising out of;
(1) any injury to person or property caused by any products sold or otherwise distributed in connection with our servers;
(2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party;
(3) copyright infringement and
(4) any defective products sold to customer from our servers.
* Disclaimer: We will not be responsible for any damages your business may suffer. We make no warranties of any kind, expressed or implied for services we provide. We disclaim any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by our Web hosting service and our employees. We reserve the right to revise the policies at any time.
* All end-users, resellers and dedicated servers of ours must adhere to the above policies.
* Use of any mass email programs in conjunction with THEWEBASP.COM SMTP servers is strictly prohibited.
* Use of any additional applications or executables on THEWEBASP.COM servers is strictly prohibited
* Use of MSAccess data files on THEWEBASP.COM Servers is strictly prohibited.
* Failure to follow any term or condition will be grounds for immediate account deactivation.
III. BILLING POLICIES AND CYCLES
* We offer billing via check, credit card or debit card charge only.
* All initial fees must be paid prior to service setup. These fees include:
- Service setup fees
- 1 month or 1 year service charge
* Monthly fees are due on the first of each month. Fees for your first month will be prorated based on the number of days in that month initially. You will be billed for the prorated portion of your first month and for your entire second month, then monthly thereafter.
* All accounts not paid within 15 days after your due date will be suspended. Suspended accounts will not be allowed any access to their servers.
* THEWEBASP.COM attempts to automatically charge credit card on file for any past due invoice for current, suspended and cancelled accounts.
* Accounts suspended and reactivated must pay all past due and current amounts and are subject to the following reactivation fees:
- Shared Servers: $50 reactivation fee
- Dedicated Servers: $100 reactivation fee
* Accounts past due over 30 days cannot be reactivated. You must sign up for new service and pay the full setup fees associated with the server option you choose.
* To cancel your account, you must contact THEWEBASP.COM via phone or email with your request. To ensure that you are not billed for another month of service, you must cancel your account before your billing cycle due date. All accounts requesting cancellation are terminated on the last day of your billing cycle.
Note: All billing correspondence [invoices, notifications, etc] is done via email. It is crucial that you maintain a current email address with us.
Our online account login enables every customer to:
* Update credit card information
* Update your email address, billing address, shipping address, etc.
* View your past and current order history
* Print out your invoices
We currently accept payment, in US Dollars only, through the following sources:
* American Express
* US Bank Check
You can contact our billing department as described on our contact us page.
IV. ADULT MATERIAL POLICY
Due to different cultures, material that is appropriate in some countries may not be appropriate in others. For this reason and many others, we maintain a strict “No Adult Material Policy”.
THEWEBASP.COM defines “Adult Material” as any of the following:
1. Any photos or videos showing frontal nudity of either men or women.
2. Any photos or videos showing any sexually explicit nudity.
3. Any audio clips or text containing sexually explicit material.
We also prohibit the following:
1. Any sites with direct links to other sites containing such material.
2. Any site engaged in the sale of sexually explicit items.
In addition we reserve the right to determine what might be considered “sexually explicit” or “sexually related”. If your site contains material that you are unsure about, please let us know before placing the order.
Why does THEWEBASP.COM not allow adult material on their servers?
THEWEBASP.COM has the privilege of hosting many family sites including self-help, rehabilitation support groups, churches, and many others. As one of the world’s leading Web Solutions Providers, we hope our policies will set new standards in the industry as to what kind of material is “acceptable”.
As a customer, how would this policy benefit me?
THEWEBASP.COM customers enjoy the assurance that if the IP addressing ever gets mixed up, their domain name will never pull up an adult site. In addition, THEWEBASP.COM customers enjoy the consistently fast servers and clear network. Unlike other Web hosting facilities, we do not have our network congested with users downloading pornographic images.
V. EMAIL POLICIES
Spam — also known as Unsolicited Commercial Email (UCE).
THEWEBASP.COM has a zero tolerance spam policy. THEWEBASP.COM does not permit spam being sent using THEWEBASP.COM mail servers.
All email sent via THEWEBASP.COM servers must meet the following criteria:
1. The recipient of your email has made a purchase, requested information, responded to a questionnaire or a survey, or had offline contact with you.
2. Marketing/Newsletter emails must provide a working link for users to unsubscribe.
3. All requested to unsubscribe must be processed within 10 days.
4. Email “from address” must contain the domain name of your THEWEBASP.COM store.
5. Email subject lines must not contain misleading information. THEWEBASP.COM actively monitors our mail servers for abuse. Any customer found to be using THEWEBASP.COM mail servers to send spam will be immediately cut-off from use of THEWEBASP.COM services.
6. Use of any mass email programs in conjunction with THEWEBASP.COM SMTP servers is strictly prohibited.