Datapex Network Systems:
PO Box 9156
Daytona Beach, FL, 32114
WHEREAS, Datapex is an Internet presence provider connected to the Internet. Datapex offers data storage and transfer services over the Internet through access to its equipment;
WHEREAS, Client seeks to utilize Datapex equipment and software for its own purposes, including web hosting for ;
WHEREAS, the parties acknowledge that the Internet is neither owned nor controlled by any one entity; therefore, Datapex can make no guarantee that any given person on-line shall be able to access any one of Datapex's web servers at any given time. Datapex represents that it shall make a good faith effort to ensure that its equipment is available as widely as possible and with as little service interruption as possible;
NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows;
I. Age of Majority:
Datapex cannot accept agreements and payments from persons under the age of 18 years. Therefore, Datapex requires that its agreements be made with a person who is qualified to contract. As such, the CLIENT must be over the age of 18 years. Otherwise, a parent or guardian must accept this agreement and ensure the proper payment.
II. Financial Arrangements:
1. Client agrees to a minimum one (1) year agreement, beginning upon Datapex's receipt by fax, postal mail or e-mail of this signed contract.
2. The client shall choose one (1) option from the Datapex Hosting Packages (Exhibit-A) and one (1) of the following payment options.
_____ Payment Option A: "Pay by Month" - The client agrees to pre-pay two (2) months hosting fee at the base rate indicated by the hosting package selected from Exhibit A. The two (2) monthly payments will be applied to the "First" month and "Last" month of hosting respectively as described in this contract.
_____ Payment Option B: "Six Month Plan" - The client agrees to pre-pay six (6) months in advance at the base rate indicated by the hosting package selected from Exhibit A. The six (6) monthly payments will be applied to the "First six months" of hosting as described in this contract.
_____ Payment Option C: "One Year Plan" - The client agrees to pre-pay twelve (12) months in advance at the base rate indicated by the hosting package selected from Exhibit A. The twelve (12) monthly payments will be applied to the "Total twelve (12) months" of hosting covered in this contract.
3. In the event of greater than anticipated web traffic, website storage size, or additional services outside the scope of the agreed hosting package, the client may also incur additional charges for services including, but not limited to fault tolerant disk storage, bandwidth usage, email addresses, ftp logins, and FrontPage logins as indicated by Schedule A. These charges are the monthly overages of these additional services and are calculated as the difference between allotments included in each Hosting Package and the actual usage. These charges will be calculated and invoiced at the close of each monthly billing cycle.
4. Payment may be remitted by check or credit card. Datapex shall notify Client should payment become past due more than 15 days. Should Client fail to submit payment beyond 15 days of notification, Datapex reserves the right to discontinue service until payment for hosting and reconnection fees is remitted.
5. This agreement will automatically renew for the same successive period(s) specified by the client on the initial contract. This agreement will renew every 6, or 12 months unless canceled in writing at least 15 days prior to the renewal date. Renewal of services by Client indicates agreement to Contract revisions.
III. Taxes:
Datapex shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from Client or Datapex's equipment. Client agrees to take full responsibility for all taxes and fees of any nature associated with such products sold.
III. Material and Products:
Client will provide Datapex with material and data in a condition that is "server-ready", which is in a form requiring no additional manipulation on the part of Datapex. Datapex shall make no effort to validate this information for content, correctness or usability.
IV. Competency
Client's web site may require a certain level of knowledge in the use Internet languages, protocols, and software. This level of knowledge varies depending on the anticipated use and desired content of Client's Web space by the Client.
The following examples are offered:
Web Publishing: requires knowledge of HTML, properly locating and linking documents, FTPing documents, creating graphics, text, sound, image mapping, etc.
CGI-Scripts: requires a knowledge of the UNIX environment, TAR & GUNZIP commands, Perl, C Shell scripts, permissions, etc.
E-mail: a knowledge of POP3 service, mail forwarding, use of mail clients to receive mail, etc.
The Client acknowledges that he or she has necessary knowledge to utilize Datapex's web host service. Client agrees that it is not the responsibility of Datapex to provide this knowledge or Customer Support outside the scope of service defined within this agreement. In the event the Client requires additional support outside the defined scope of this agreement, the Client may elect to utilize Datapex services at the software support rates described in Exhibit-A.
V. Content
1. Datapex will exercise no control whatsoever over the content of the information passing through the network. Datapex makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. Datapex also disclaims any warranty of merchantability or fitness for particular purpose and will not be responsible for any damages that may be suffered by the Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the Client. Use of any information obtained by way of Datapex is at the Client's own risk, and Datapex specifically denies any responsibility for the accuracy or quality of information obtained through its services. Datapex shall make no modifications to the Client's web site(s) without the express written consent of the Client. Connection speed represents the speed of a connection to and does not represent guarantees of available end-to-end bandwidth. Datapex expressly limits its damages to the Client for any non-accessibility time or other down time to the prorated monthly charge during the system unavailability. Datapex specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
2. In the event that any particular clients' material is not "Server-ready", Datapex may, at its option and at any time, reject this material, including but not limited to after it has been put on Datapex's webservers. This includes Datapex's right to disable such non-"Server-ready" materials, such as CGI scripts or programs which consume an unreasonable amount of CPU (Central Processing Unit) usage or RAM (Random Access Memory) as determined by Datapex. Datapex may also at its discretion at any time, suspend access to any client's website without notice, due to over-consumption of bandwidth (exceeding 2048MB/day transfer), CPU usage, or any other reason which might effect the performance of Datapex services. Datapex agrees to notify Client immediately of its refusal of the material and/or suspension of the account and afford Client the opportunity to amend or modify the material to satisfy the needs and/or requirements of Datapex. At the request of the Client, Datapex may correct the non "server-ready" materials at the developer support hourly rate described in Exhibit-A. If the Client fails to modify the material, as directed by Datapex, within a reasonable period of time established by Datapex, the Agreement shall be deemed to be terminated.
VI. Acceptable Uses
Client agrees to the terms of the Acceptable Use Policy, included in this document by link http://datapex.net/web_hosting/acceptable_use.htm .
VII. Trademarks & Copyrights:
Client warrants that it has the right to use the applicable trademarks, if any, and grants Datapex the right to use such trademarks in connection with Datapex's service. This includes the right, with permission granted by Client, to Datapex to advertise the Client in conjunction with Datapex's service. Permission is hereby granted, as indicated by Client representative's initials. __________
VIII. Hardware, Equipment & Software:
The customer is responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access Datapex. This equipment includes a personal computer equipped with a 2400 baud modem or faster, Internet access via an ISP ("Internet Service Provider"). Datapex makes no representations, warranties or assurances that the Customer's equipment will be compatible with the Datapex service. Client understands that Datapex is an ISP and therefore will offer dial-up Internet access for the Client as an addendum to this contract.
IX. Internet Etiquette:
Electronic forums such as mail distribution lists and UseNet news groups all have expectations regarding subject area and appropriate etiquette for posting. Users of these forums should be considerate of the expectations and sensitivities of others on the network when posting material for electronic distribution. The network resources of Datapex may not be used to impersonate another person or misrepresent authorization to act on behalf of others or Datapex. All messages transmitted via Datapex should correctly identify the sender; users may not alter the attribution of origin in electronic mail messages or posting. Users must not attempt to undermine the security or integrity of computing systems or networks and must not attempt to gain unauthorized access.
X. Service Guarantee
1. Service Related
Client may cancel his/her account with Datapex due to interruption in service only. This includes "downtime", power outages resulting in the inability of Datapex to provide the service promised, or errors within the software provided and verified by Datapex.
2. Limitations
Client is not entitled to any sort of refund due to ignorance of Datapex's underlying service or payment policies. This includes, but is not limited to, cancellation because of problems registering or transferring any domain, U.S. top-level or foreign, getting programs (CGI scripts) or features (search engines, guest books, etc.) working on the Client's account. Search Engine listings, subscriptions, and maintenance are the responsibility of the Client. Accounts sold through any of Datapex's resellers or their resellers are not eligible for a refund of any services under the money-back guarantee. Client may not be entitled to any sort of refund because he/she had violated any one of the seven restrictions outlined in the acceptable uses policy above, even if the Client provided written notice within 30 days for a service-related reason. Client will not be entitled to a refund for cancellation due to the fact that he/she did not read our acceptable uses and later learned that his/her content violates our acceptable uses. Acts of God, including but not limited to, earthquakes, thunderstorms, or fires which result in an interruption in service are exempt from the service guarantee. Because these circumstances are beyond the control of Datapex, the service guarantee will be void under these conditions. However, Datapex will make every good faith effort to reinstate service to Client as quickly as possible.
XI. Termination:
Datapex may terminate service under this Agreement at any time, without penalty, and collect any termination fees as outlined above if the Client fails to comply with the terms of this Agreement. Datapex shall first provide written notification to Client regarding non-compliance. Client shall have up to two business days to correct all non-compliance matters. In the event the non-compliance matter adversely effects the performance of Datapex services, Datapex reserves the right to immediately terminate this agreement.
XII. Limited Liability:
1. Client expressly agrees that use of Datapex's equipment is at Client's sole risk. Neither Datapex, its employees, affiliates, agents, third party information providers, resellers or the like, warrant that Datapex's service 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 the service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through Datapex, unless otherwise expressly stated in this Agreement.
2. Under no circumstances shall Datapex, its offices, agents or any one else involved in creating, producing or distributing Datapex's service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use of Datapex's service; or that results 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 Datapex's records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on Datapex's Server service.
3. Notwithstanding the above, Client's exclusive remedies for all damages, losses and causes of actions whether in contract, tort, or otherwise, shall not exceed the aggregate dollar amount which Client paid during the term of this Agreement and any reasonable attorney's fee and court costs.
XIII. Confidentiality:
1. Confidential Information
A. Datapex may choose to disclose certain of its confidential and proprietary information (the "Confidential Information") to Client. Confidential Information shall include all data, materials, products, technology, computer programs, specifications, software, marketing plans, business plans, financial information, and other information disclosed or submitted, orally, in writing, or by any other media, to Client by Datapex including the terms and conditions of this contract. Confidential Information disclosed orally shall be identified as such within five (5) days of disclosure.
2. Client Obligations
A. Client agrees that the Confidential Information is to be considered confidential and proprietary to Datapex and Client shall hold the same in confidence, shall not use the Confidential Information other than for the purposes of its business with Datapex, and shall disclose it only to its officers, directors, or employees with a specific need to know. Client will not disclose, publish or otherwise reveal any of the Confidential Information received from Datapex to any other party whatsoever except with the specific prior written authorization of Datapex.
B. Confidential Information furnished in tangible form shall not be duplicated by Client except for purposes of this Agreement. Upon the request of Datapex, Client shall return all Confidential Information received in written or tangible form, including copies, or reproductions or other media containing such Confidential Information, within ten (10) days of such request. At Client's option, any documents or other media developed by the Client containing Confidential Information may be destroyed by Client. Client shall provide a written certificate to Datapex regarding destruction within ten (10) days thereafter.
3. DatApex Obligations
A. DatApex agrees that the Confidential Information is to be considered confidential and proprietary to Client and DatApex shall hold the same in confidence, shall not use the Confidential Information other than for the purposes of its business with Client, and shall disclose it only to its officers, directors, or employees with a specific need to know. DatApex will not disclose, publish or otherwise reveal any of the Confidential Information received from Client to any other party whatsoever except with the specific prior written authorization of Client.
B. Confidential Information furnished in tangible form shall not be duplicated by DatApex except for purposes of this Agreement. Upon the request of Client, DatApex shall return all Confidential Information received in written or tangible form, including copies, or reproductions or other media containing such Confidential Information, within ten (10) days of such request. At DatApex's option, any documents or other media developed by the DatApex containing Confidential Information may be destroyed by DatApex. DatApex shall provide a written certificate to Client regarding destruction within ten (10) days thereafter.
XIV. Indemnification:
Client agrees that it shall defend, indemnify, save and hold Datapex harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees, ("Liabilities") asserted against Datapex, its agents, its customers, resellers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Datapex against Liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed in connection with Datapex's equipment; (ii) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective product which Client sold using Datapex's service.
This agreement represents the complete agreement and understanding between Datapex and the Client and supersedes any other written or oral agreement. Upon notice published on-line via Datapex, Datapex may modify these terms and conditions, amplify them, and/or modify the prices, as well as discontinue to change the services offered. Submission of your account order shall constitute your complete acceptance of these Terms and Conditions. Modifications to published hosting rates and other related charges shall not impact rates outlined in Exhibit-A below, during the timeframe of this agreement.
This Agreement shall be governed and construed in accordance with the laws of the State of Florida and of the Internet.
