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The Computer Studio (“TCS”) agrees to provide Website Hosting and Related Optional Service(s) to Customer, and Customer agrees to purchase such Service(s) for agreed upon Monthly Fee, subject to the following Terms and Conditions:
a. This Agreement shall commence upon the date Customer’s hosting account is set up (“Effective Date”), and end upon termination by either party.
b. Customer may terminate this Agreement any time after 30 days from the Effective Date, upon 30 days written notice to TCS. TCS may terminate this Agreement after 90 days from the Effective Date, upon 30 days written notice to Customer.
c. Charges for goods or services ordered by TCS from third parties on behalf of Customer during the Term of this Agreement shall be the responsibility of Customer, even if furnished or provided after the expiration of Agreement.
a. Monthly Fee will initially be charged at TCS’ standard rate(s) for services furnished to Customer or as otherwise agreed to by the parties. Additional services may be contracted by Customer from TCS at the prices then currently in effect.
b. Prices may be changed by TCS upon 60 days written notice to Customer.
a. Payment covering first billing period ( one month or 3 months, as indicated on the face of this Agreement) is due upon authorization of this Agreement by Customer. Subsequent billing periods will be invoiced and paid either monthly or quarterly (“Billing Period”) thereafter, as agreed to by the parties, at the beginning of the period to which it applies.
b. Invoices are due and payable within ten (10) days after Invoice Date (“Due Date”). All invoices are payable in full without abatement or setoff.
c. TCS may charge Customer a sum equal to 1 1/2% of any balance outstanding past the Due Date for each month, or fraction thereof, such balance remains unpaid.
d. TCS may withhold Service(s) under this Agreement, unless payment in full is received by Due Date for each outstanding invoice. Such withholding of Service(s) does not relieve Customer of obligations hereunder.
e. In the event Customer fails to pay TCS all amounts which become due under this Agreement, or fails to perform any other obligations hereunder, and TCS refers such matter to an attorney, Customer agrees to pay, in addition to the amount due, any and all costs incurred by TCS as a result of such action, including a reasonable attorney’s fee.
TCS may terminate this Agreement upon giving Customer 14 days written notice if Customer:
(a) Fails to make any payment required within thirty (30) days of the Due Date;
(b) Files a petition in bankruptcy, or proceedings in bankruptcy are instituted against Customer and not dismissed, or any court shall assume jurisdiction of such party and its assets pursuant to proceedings under any bankruptcy or reorganization act, or a receiver is appointed, or Customer shall make an assignment for the benefit of creditors, or;
(c) Customer otherwise breaches any of the Terms and Conditions hereof.
a. TCS’s obligations hereunder shall be limited to providing the Service(s) selected by Customer on a “best efforts” basis.
b. TCS will utilize its best efforts to maintain acceptable performance of services, but TCS makes absolutely no warranties, express or implied, including warranty of merchantability or fitness for a particular purpose. TCS cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. TCS will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system.
c. TCS shall not be liable for any claims or damages which may be suffered by Customer or its customers resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, nondeliveries, or service interruptions whether or not caused by the fault or negligence of TCS.
d. TCS shall have no liability whatsoever for any failure to perform or delay in performance due to any cause outside of its control. In any event, TCS’ liability to Customer under this Agreement shall be limited to amounts actually paid by Customer to TCS for services covered by this Agreement over the prior 12 month period.
e. Customer agrees that it shall defend, indemnify, save and hold harmless from any and all demands, liabilities, losses, costs, claims, including reasonable attorney’s fees, (‘Liabilities’) against TCS, its agents, its customers, officers or employees that may arise or result from any services provided, performed or agreed to be performed or any product sold by Customer, its agents, employees or assigns, or any violation by Customer of trademarks, copyright, or other intellectual property rights belonging to a third party
f. UNDER NO CIRCUMSTANCES SHALL TCS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, DIRECT, INDIRECT, OR OTHERWISE, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.
The Customer may only use TCS’ hosting services for lawful purposes. In the event that TCS believes that the service is being used by Customer in contravention with any of the Terms and Conditions contained in this Agreement, TCS has the right to immediately discontinue such service to Customer without liability other than to refund any unearned prepaid service fees. The following restrictive uses shall cause immediate termination of services and this Agreement without notice to Customer:
a. Unauthorized distribution or copying copyrighted software, violation of US export restrictions, embarrassment, fraud, trafficking in obscene material, drug dealing, and other illegal activities.
b. Unsolicited advertising via email and/or ‘Spamming’ in violation of State and Federal Law. Such prohibited conduct subjects Customer to immediate cessation of service as provided herein and the termination of this agreement without notice.
c. Using a non-existing email return address on a commercial solicitation, spamming (sending unsolicited advertising to numerous email addresses or newsgroups) or mailbombing (sending multiple messages without significant new content to the same user). TCS reserves the right to determine what is Net abuse;
d. Tortuous conduct such as posting of defamatory, libelous, scandalous, or private information about a person without their consent, intentionally inflicting emotional distress, or violating trademarks, copyright, or other intellectual property rights;
e. The Customer expressly understands and agrees that illegal Adult oriented Websites featuring nudity and acts of a sexual nature are expressly prohibited. TCS reserves the right to immediately terminate and remove any such unauthorized Websites without notice and discontinue service to Customer without notice or liability for actual, compensatory or consequential damages to Customer for the interruption in service.
This Agreement shall bind and inure to the benefit of the parties and respective successors and assigns.
Any and all disputes arising out of, under, or in connection with this agreement, including, without limitation, the validity, interpretation, performance, and breach hereof, shall be settled by arbitration in New York City, New York, pursuant to the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in the highest court of the Forum, State or Federal, having jurisdiction. This Agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of New York.
This Agreement may not be modified except by writing, executed by authorized representatives of TCS and Customer.