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ONLINE AGREEMENT
Online Agreement
THIS AGREEMENT is made and entered between Chandler Enterprises, Inc.,
and its subsidiaries located at 4817 Taylorsville Road, Taylorsville, KY
40071, hereinafter referred to as ("CEI") and you, the Customer, who wishes to
use the Services of CEI in accordance with CEI's policies, order forms and standard
application(s) which are located on the World Wide Web at http://www.cehost.com
and its various subdirectories.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. SERVICE DESCRIPTION: As a World Wide Web, Information Technology and Internet
Service Provider, CEI provides Internet web hosting, ecommerce, domain registration
and associated services, hereafter referred to as the ("Service") and maintains
a network of dedicated server computers, routers, hubs, switches, other equipment
and software (collectively, the "Network") located in Kentucky, USA which is
integrated with the Internet. This Network sends and receives data and information
in relationship to the World Wide Web. Customer wishes to connect to the World
Wide Web utilizing the hardware and software resources of CEI to establish an
Internet web presence using CEI's Network and Services.
2. CONDITIONS: The application and this Agreement constitute a legal and binding
contract between CEI and the Customer and does not extend to any other person
or entity. Customer may resell to third parties (subject to the provisions of
separate Reseller Agreement) but is responsible for third party activities and
content, and is bound by the terms under this Agreement. The duration or Initial
Term of this Agreement is for six (6) consecutive months beginning on the date
of application, but CEI will allow the Customer to pay for the six months of services
in six monthly installments. Subsequent Terms shall be for six month periods.
Excess resources utilized by Customer to include data transfer, disk space and
virtual host limits shall be paid for by Customer. CEI will bill Customer and
Customer shall pay for excess resources used by Customer. If Customer exceeds
the virtual host limit for a particular virtual server, CEI will automatically
upgrade customer to the next higher level server and Customer will pay for such
Services and virtual hosts. Cancellations after an application is received and
webspace is set-up will still hold the Customer responsible for costs incurred
by CEI concerning the set-up of the web space. All cancellations must be IAW CEI's
billing policies located on-line at http://www.cehost.com/billing.htm. All cancellations
shall be in writing and delivered via postal mail or facsimile to the accounts
receivable department of CEI with telephonic confirmation.
3. WARRANTIES: With respect to the Services to be provided herein, the Customer
acknowledges that CEI makes absolutely no warranties whatsoever, express or implied.
As a result, the Customer agrees that CEI shall not be liable to the Customer
for any claims, damages or loss of profit which may be suffered by the Customer
or any other entity in any respect for direct, indirect, consequential, actual,
or punitive damages arising out of or in relation to the Services provided herein,
including, but not limited to, losses or damages resulting from the loss of data
as the result of delays, non-deliveries, or Service interruptions.
4. INFORMATION: The utilization of any data or information received by the Customer
from the utilization of the Service to be provided by CEI is at the Customer's
sole and absolute risk. CEI specifically disclaims and denies any responsibility
for the completeness, accuracy or quality of information obtained through the
Services to be provided hereby.
5. DOMAIN NAME: If CEI or its subsidiaries acquires or registers an Internet Domain
Name on behalf of the Customer, then in such case the Customer hereby waives any
and all claims which it may have against CEI, for any loss, damage, claim or expense
arising out of or in relation to the registration of such Domain Name in any on-line
or off-line network directories, membership lists or registration lists, or the
release of the Domain Name from such directories or lists following the termination
of the providing of this Service by CEI for any reason.
6. PAYMENT: The set-up fee and first payment are due at the time the on-line application
and Agreement are filled out, and electronically or telephonically submitted to
CEI. Subsequent payments are due according to the selected fee schedule following
the establishment of the web space and Services on the Internet. Web space and
Services will be billed a minimum of one (1) month in advance depending on the
selected fee schedule. Subsequent payments are due on the 5th day of each month
as per the selected fee schedule. In the event that the Customer fails to pay
for such Services in advance, CEI shall be entitled to unilaterally terminate
this Agreement and discontinue the Service until payment is made. As consideration
for the Internet services provided by CEI to Customer, Customer agrees to pay
CEI, at the time of submitting the application and order, all the CEI Fees for
which Customer has ordered Service regardless of the billing and payment schedule
selected. All set-up and Initial Term fees are non-refundable, in whole or in
part, even if Customer's web hosting and Service account is suspended, canceled
or transferred prior to the end of Customer's then current Initial or Subsequent
six month Term. Customer remains obligated to pay all amounts agreed to in the
Initial Term, and if CEI has purchased equipment on behalf of Customer, Customer
shall assume responsibility for payments for such equipment, until paid in full.
Any termination by CEI or Customer shall not relieve Customer of any obligations
to pay fees accrued prior to such termination. In the event of failure to pay
by Customer and/or a chargeback by a credit card company (or similar action by
another payment provider allowed by CEI) in connection with the payments of the
Services, web hosting, domain services and domain registration fees for a Customer's
account, Customer agrees and acknowledges that the domain name registration shall
be transferred to CEI as the paying entity for that registration to the registry
and that CEI reserves all rights regarding such domain name registration including,
without limitation, the right to make the domain name available to other parties
for purchase. CEI will reinstate Customer's domain name registration solely at
CEI's discretion, and subject to CEI's receipt of payment in full by Customer.
7. BREACH AND REVOCATION: In the event that CEI may at any time believe that the
Service is being utilized for unlawful purposes by the Customer or in contravention
with the terms and provisions herewith, CEI may unilaterally and immediately discontinue
such Service to the Customer without liability. This will include failure to pay,
adult content and/or unsolicited email.
7.1 SECURITY INTEREST IN CUSTOMER'S DATA AND DOMAIN NAME REGISTRATION RIGHTS:
Customer agrees that CEI and/or its subsidiaries shall have a security interest
in and the right in its sole discretion to suspend, cancel, transfer or modify
Customer's web hosting account and domain name registration in the event that
Customer fails to pay the total amount then due by the 5th of the month or otherwise
breaches this Agreement (including the Dispute, AUP, or Billing Policies) and
does not cure such breach within five (5) days of notice by CEI. Customer understands
and acknowledges that by placing Customer's domain name and Customer's information
on CEI's servers, Customer has granted CEI and its subsidiaries a security interest
in Customer's domain name registration and customer's data. Customer acknowledges
and agrees that Customer's domain name is subject to suspension, cancellation
or transfer by any ICANN procedure, by any registrar or registry administrator
procedures approved by an ICANN-adopted policy, or by any other TLD registry administrator
procedures as the case may be, for the resolution of disputes concerning the domain
name. Customer further agrees and acknowledge that CEI owns all databases, compilations,
collective and similar rights, title and interests worldwide in the web hosting
and domain name databases generated by information relating to CEI and CEI subsidiary
customers, and all information and derivative works generated from the web hosting
and domain name databases to include but not limited to:
(a) the original creation date of the domain name registration;
(b) the expiration date of the domain name registration;
(c) the name, postal address, e-mail address (which CEI may alias for purposes
of transfers), voice telephone number, and where available fax number of the technical
contact, administrative contact, zone contact and billing contact for the domain
name registration;
(d) any remarks concerning the registered domain name that appear or should appear
in the WHOIS or similar database;
(e) any other information CEI generates or obtains in connection with the provision
of domain name registration and/or web hosting services.
7.2 DEFAULT; ACCELERATION; AND, WAIVER OF NOTICE: Should Customer fail to pay
Customer's bill by the 5th of the month or should the Customer otherwise breach
this Agreement (including the Dispute, Billing, or AUP Policies), CEI may declare
the Customer in default and require the Customer to pay the entire debt immediately
and without prior notice. Further, in the event of default, CEI may act as Customer's
Attorney-in-Fact to execute in actions or proceedings in connection with this
Agreement, including, but not limited to, selling or otherwise disclosing Customer
data and/or the domain name registration.
8. INDEMNIFICATION: The Customer shall indemnify and hold harmless CEI from any
and all loss, cost, expense, and damage on account of any and all manner of claims,
demands, actions, suits, proceedings, judgements, costs and expenses that may
be initiated against CEI and CEI's officers, directors, and employees for any
Service provided to Customer by CEI to include web space content that violates
any copyright, proprietary right of any person, state and federal regulations,
or contains any matter that is libelous or scandalous.
9. CHANGES IN TERMS OF AGREEMENT: CEI reserves the right to make changes to the
terms and conditions of this Agreement at any time, and to the on-line application
to include service pricing, advising of the change and the effective date thereof
by publishing it to the appropriate CEI web site, but with changes in service
fees being effective only at the end of any period for which the Customer has
prepaid. Utilization of the Service by the Customer following the effective date
of such change shall constitute acceptance by the Customer of such change(s).
Customer is solely responsible for staying informed with respect to changes in
this Agreement, the application, Acceptable Use Policy and Billing Policy, all
of which are published on-line and readily available for public viewing.
10. ENTIRE AGREEMENT AND UNDERSTANDING: This instrument, the application for web
space and Services, CEI's AUP (Acceptable Use Policy) and CEI's BP (Billing Policy),
all of which are published on CEI's web site, are incorporated by reference and
constitute the entire agreement between the parties, and represents the complete
and entire understanding of the parties with respect to the subject matter of
this Agreement.
11. RELATIONSHIP: The parties hereto are independent entities and nothing contained
in this Agreement shall be construed to constitute Customer an agent, employee,
partner, independent contractor, joint venturer, or any other similar entity.
12. GOVERNING LAW: This Agreement shall be governed by the laws of the Commonwealth
of Kentucky in the United States of America without regard to such Commonwealth's
laws and rules concerning conflicts of laws. Each party agrees that jurisdiction
and venue for any and all claims, disputes or other matters arising out of the
Services provided herein and under this Agreement will only lie in Spencer
County, Kentucky. If any action at law or in equity is brought to enforce
or interpret the provisions of this Agreement and Services provided herein, the
prevailing party in such action shall be entitled to all reasonable costs to include
attorney fees.
13. ARBITRATION: In the event a dispute or controversy arises out of or relating
to this Agreement, such dispute or controversy (including contentions that a party
is in default in performance of its obligations hereunder, but excluding questions
as to the validity and binding effect of this Agreement, which shall be conclusively
presumed) shall be submitted to arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon the
award may be entered in any court of competent jurisdiction.
14. SEVERABILITY: In the event that any term or provision of this Agreement is
held by a court of competent jurisdiction to be illegal, unenforceable or invalid
in whole or in part for any reason, the remaining provisions of this Agreement
shall remain in full force and effect.
15. CONFIDENTIALITY AND PROPRIETARY INFORMATION: Customer acknowledges and agrees
that any information not generally known by or disclosed to the public to include
but not limited to computer programs, trade secrets, customer lists, financial
data, employee expertise, operating procedures, methodology, source code, algorithms
and inventions are the property of CEI and may not be utilized, interfered with
or released without the express written permission of CEI. Customer agrees that
CEI is the owner of certain copyrights and trademarks in which Customer agrees
not to interfere.
16. INTERPRETATION: The format, words and phrases used herein shall have the meaning
generally understood in the Telecommunicatons/Software/Internet Industries. This
Agreement shall be construed in accordance with its fair meaning and not against
the drafting party.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
and in consideration of the covenants and agreements contained herein, do hereby
execute this instrument, with each party warranting their ability to enter into
this Agreement for the person or entity herein named as a party hereto. By filling
out the online application directly using a dialup IP address captured and logged
by CEI, (or by placing a recorded telephonic order with an CEI representative
from a valid telephone number which is logged by a PBX system) and by clicking
on "Accept" below, Customer agrees to all the terms and conditions of this Agreement.
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