Agreement
This Web Space Hosting Agreement ("Agreement") is hereby entered into between Thomas Andrew Net Works, herein after referred to as TANet, and ____________________("Customer") on the following terms and conditions.
In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement:
1. SERVICES TO BE PROVIDED BY TANET
TANet will provide Web Space Rental Services (the "Service"). The Service consists of allowing the Customer to offer content on the Internet. These services include space on TANet Internet Servers to store HTML, multimedia documents, Databases, Emails and files, the ability to maintain the website and email accounts.
The terms and conditions of this agreement and any rules and prices published on the web site at http://www.thomasandrew.net/contract_aup.cfm or any of its domain pointers constitute the entire and only agreement (collectively the "Service Agreement") between TANet and the Customer (hereby defined as one who has an account with TANet for the Service, including Customer's designated users with respect to the Service) and supersede all other communications and agreements with regard to the subject matter hereof.
2. CHANGES TO AGREEMENT/PRICES
Upon notice provided in written, faxed or emailed form to the Customer, TANet may modify this Service Agreement or Prices and may discontinue or revise any or all aspects of the service at its sole discretion.
3. RULES AND REGULATIONS
From time to time TANet may impose rules and regulations regarding the use of its services. Such changes in rules and regulations will be mailed via email and will be incorporated into contract on the day the mail was sent out.
3.1 The following are specifically prohibited on TANet Servers:
Illegality in any form, including but not limited to activities such as unauthorized distribution or copying of copyrighted software, violation of U.S. export restrictions, harassment, fraud, trafficking in obscene material, drug dealing, gambling/casino sites and other illegal activities.
Net abuse, including but not limited to activities such as using a non-existent email return address on a commercial solicitation, spamming (sending unsolicited advertising to numerous email addresses or newsgroups and/or generating a significantly higher volume of outgoing email than a normal user), allowing spamming by third parties to promote a web site hosted by TANet, trolling (posting outrageous messages to generate numerous responses), mailbombing (sending multiple messages without significant new content to the same user), subscribing someone else to a mailing list without that person's permission, cross-posting articles to an excessive number of newsgroups, or attempting without authorization to enter into a secured computer system, newsgroup flooding, widespread or organized forgery campaigns, widespread or organized account hackery, widespread or organized censorship attempts, posting of defamatory, scandalous, or private information about a person without their consent, violating trademarks, copyrights, or other intellectual property rights, misuse of system resources, including but not limited to employing posts or programs which consume excessive CPU time or storage space; permitting use of mail services, mail forwarding capabilities, POP accounts, or autoresponders other than for the customer's own account; resale of access to CGI scripts installed on TANet's servers; or attempting to use a single customer account for third party web sites by allowing more than one domain pointer to be used to reference pages within the customer's site,etc. TANet reserves the right to determine what constitutes net abuse.
3.2 Adult Content: TANet does not permit hosting of Adult Sites or Sites that display Adult Banners on its server. TANet reserves the right to determine what constitutes Adult Sites.
3.3 Violation of the rules: TANet reserves the right to immediately suspend all accounts found to be in violation of rules, without prior notice.
4. LIMITED 30-DAY MONEY-BACK GUARANTEE; DISCLAIMERS OF WARRANTY;
LIMITATIONS ON TANet's OBLIGATIONS AND LIABILITIES
4.1 TANet offers a 30-day money-back guarantee. If Customer is not completely satisfied with the Service within the first 30 days, Customer may cancel this agreement by notifying TANet in writing (request for refund must be made in writing to sales@thomasandrew.net or mailed in writing to our office within the first 30 days). In such case Customer will receive a full refund of any amounts paid pursuant to this agreement, less any setup fees. Setup fees will be refunded only if
(i) Customer cancels this agreement prior to account activation, or
(ii) the domain name requested by Customer is not available.
4.2 After the initial 30-day period. If no written claim or objection regarding such services has been received by TANet within the 30-day period, services provided by TANet to Customer shall be deemed accepted for all purposes. No claim related to such accepted services may be raised at a later date.
4.3 TANet's liability. TANet’s liability to Customer hereunder is limited to the amount paid to and received by TANet for services not accepted.
TANET MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. TANET CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA STORED OR TRANSMITTED VIA ITS SYSTEM. NEITHER TANET NOR ANYONE ELSE INVOLVED IN PROVIDING SERVICES PURSUANT TO THIS AGREEMENT WILL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CLAIMS OR DAMAGES OF ANY KIND (DIRECT, CONSEQUENTIAL, SPECIAL, OR ANY OTHER) THAT ARISE OUT OF THE USE OR INABILITY TO USE SUCH SERVICES, whether or not resulting from fault or negligence on TANet's part, even if TANet has been advised as to the possibility of such damages.
4.4 Customer will take all necessary measures to preclude TANet from being made a party to any lawsuit or claim regarding TANet services provided to Customer. Customer hereby agrees to indemnify and hold harmless TANet from any and all such lawsuits or claims.
5. PROPERTY RIGHTS
TANet owns all right, title and interest in and to TANet's trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function,or operation of Service and of the hardware and software systems and resources necessary to provide the individual service elements of which they consist. This agreement does not constitute a license to Customer to use TANet's trade names or service marks. Any such license must be the subject of a separate written agreement.
6. PRIVACY
6.1 TANet will not sell, and will not knowingly disclose, its customer lists or customer email or listserv address lists (although it cannot guarantee that such information will never be found out). TANet will cooperate with those attempting to minimize net abuse, and reserves the right to institute "filters" or other mechanisms as part of its efforts to reduce net abuse.
6.2 TANet will not monitor or disclose Customer's private email messages unless required to do so by court order or law, but TANet will cooperate with law enforcement authorities and will notify such authorities if it suspects that Customer is engaged in illegal activities.
7. CONFIDENTIALITY
Customer acknowledges that by reason of its relationship with TANet hereunder, it may have access to certain information and materials relating to TANet's business plans, customers, software technology, and marketing strategies that is confidential and of substantial value to TANet, which value would be impaired if such information were disclosed to third parties. Customer agrees that it will not use in any way for its own account nor for the account of any third party, nor disclose to any third party, any such information revealed to it by TANet. Customer further agrees that it will take every reasonable precaution to protect the confidentiality of such information. In the event of termination of this agreement, Customer shall not disclose any such confidential information in its possession, and shall return all confidential materials to TANet or destroy them, at TANet's option. The provisions of this section shall survive the termination of this agreement. Upon any breach or threatened breach of this section, TANet shall be entitled to injunctive relief.
8. RELATIONSHIP OF THE PARTIES; NATURE OF AGREEMENT
The relationship between TANet and Customer is that of vendor and vendee. The parties shall not be construed as being in a or part of a joint venture,franchiser/franchisee, or employer/employee. Even if Customer is an individual, this agreement is a commercial agreement entered into for business purposes, not a consumer agreement. Customer has no authority, apparent or otherwise, to contract for or on behalf of TANet, or in any other way legally bind TANet in any fashion, nor shall Customer be authorized to make any representations about TANet or its services other than to set forth the contents of this agreement, of any Service(s) contracted for, and of any rules and regulations promulgated by TANet from time to time.
9. DISPUTES
The parties shall attempt to resolve all disputes arising out of this agreement in a spirit of cooperation and with a problem-solving mindset, without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices, and other than the injunctive relief referred to in paragraph 7) shall be subject to binding arbitration upon written demand of either party. The arbitration shall take place before an arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a third arbitrator and determine the third arbitrator's compensation. Each party shall have one veto over the choice of the third arbitrator. The three arbitrators shall schedule an informal proceeding, hear the arguments, and decide the matter by secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and shall pay half of the other costs of the arbitration proceeding.
Each party shall have the right to have the proceedings transcribed. The arbitrators shall not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration; the dissenting arbitrator, if any, shall not issue or reveal a dissenting opinion. Regarding each issue submitted to arbitration, the decision shall be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having jurisdiction thereof. Should any legal action permissible under this agreement be instituted to enforce the terms and conditions of this agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses incurred at both the trial and appellate levels.
10. TERM, TERMINATION OF AGREEMENT AND SERVICES
10.1 Initial term. Unless otherwise terminated as set forth herein, this agreement shall be effective for one (1) year, beginning ____________________.
10.2 Automatic renewal. This agreement shall be renewed automatically for subsequent terms of the same length unless, at least thirty (30) days prior to the next renewal date, one party gives notice of non-renewal to the other. If, prior to the renewal date, TANet tenders to Customer a copy of TANet's then-current Customer Agreement with notice that renewal is conditioned on Customer's agreement thereto, any renewal by customer will be deemed to be an acceptance of the terms contained in such subsequent Customer Agreement, rather than a renewal pursuant to the terms contained herein. Upon automatic renewal of this Agreement, the Service(s) accepted by Customer shall be deemed to be the then-current Service(s) most closely resembling Customer's prior accepted Service(s), provided that such subsequent Service(s) shall be at least as favorable to Customer as any prior Plan(s).
10.3 Termination. This agreement may be terminated and all accounts/domains of Customer may be shut down in any of the following ways:
10.3.1 By TANet,
11.1 Credit Card Payment. By paying for their account by credit card, whether by online order form, fax or phone, Customer hereby agrees to authorize all recurring charges to the account and any other balances incurred due to overages of limits, additions of extras to the account, service charges and/or any other fees.
11.2 Check Payment.
11.2.1 Customer paying by check will not receive access to their account or web site until TANet receives payment. For accounts paid by check, TANet requires payment for a minimum quarterly period.
11.2.2 Payment for any charges is due upon the date of the invoice. Accounts which have balances outstanding shall be deemed to be in default and subject to termination of service. Any charge that is not paid within thirty (30) days from the date of the invoice shall be subject to an interest rate of 1.5% per month, or the maximum allowed by law. Customer shall be responsible for all costs of collection, including reasonable attorney's fees and court costs, in event of a default for nonpayment of any amounts due TANet.
12. REFUNDS
12.1 Valid Complaint. All refunds requested with a "valid complaint" will receive a refund of the charged periods. Charged periods are soley determined by TANet. What constitutes a "valid complaint" shall be determined by TANet in its sole and absolute discretion.
12.2 Customer will not receive a refund for any other reason, including but not limited to: late cancellation, slow connection caused by Customer's ISP/network, Customer's ignorance, Registration delays, account termination for violation of policies.
12.3 Customer will not receive a refund for any setup fees or any fees other than the monthly recurring hosting fees.
13. DOMAIN DELETIONS
Domain deletion of any/all Customer domains that are hosted on TANet servers MUST be specifically requested in writing by filling out the DELETION REQUEST FORM. TANet will not be held responsible for any charges incurred by a Customer who fails to fill out the DELETION REQUEST FORM for the removal of a domain(s) from their account. Until the DELETION REQUEST FORM is filled out, charges will apply for the domain(s) in question.
14. NONASSIGNABILITY
Customer's rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of TANet, which consent shall not be unreasonably refused. TANet's rights and obligations under this agreement may be transferred and assigned only if such transfer or assignment does not adversely affect the services provided to Customer hereunder.
15. PARTIAL INVALIDITY
If any provision of this agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. TANet and Customer agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.
16. APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement and the relationship between TANet and Customer shall be governed by the laws of the State of Kansas without regard to its conflict of law provisions. Customer agrees to submit to the personal jurisdiction of the courts located within the county of Shawnee, Kansas. The failure of TANet to exercise or enforce any right or provision of this agreement shall not constitute a waiver of such right or provision.
17. NOTICES
Except with respect to service of process as set forth in paragraph 13, all notices may be sent by email, fax, or express mail to the email address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.
18. ENTIRE AGREEMENT; MODIFICATIONS
This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. TANet may make changes to this agreement upon written notice to Customer, advising of the change and the effective date thereof. Utilization of TANet services by Customer and/or its Customers following the effective date of such change shall constitute acceptance by Customer of such change(s). Otherwise,this agreement may not be modified except by the written consent of both parties.
