This Web Space Hosting Agreement ("Agreement") is hereby entered into between ExpertHost.com (A Division of NJ Tech Solutions Inc.), herein after referred to as NJTech, 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 NJTECH
NJTech 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 NJTech 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.experthost.com/ or any of its domain pointers constitute the entire and only agreement (collectively the "Service Agreement") between NJTech and the Customer (hereby defined as one who has an account with NJTech 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, NJTech 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 NJTech 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 NJTech Servers:
Illegality in any form, including but not limited to activities such as unauthorized distribution or copying of copyrighted software, violation of Canadian/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 NJTech, 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 NJTech'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. NJTech reserves the right to determine what constitutes net abuse.
3.2 Adult Content: NJTech does not permit hosting of Adult Sites or Sites that display Adult Banners on its server. NJTech reserves the right to determine what constitutes Adult Sites.
3.3 Violation of the rules: NJTech reserves the right to immediately suspend all accounts found to be in violation of rules, without prior notice.
4. LIMITED 90-DAY MONEY-BACK GUARANTEE; DISCLAIMERS OF WARRANTY;
LIMITATIONS ON NJTech's OBLIGATIONS AND LIABILITIES
4.1 NJTech offers a 90-day money-back guarantee on any initial plan that is opened under a given account number. There is no guarantee applicable to any but the first plan that is opened under a given account number. Should a customer decide to cancel an account within the initial 90 day period, the customer will receive a full refund of prepaid hosting fees, less any Domain registration or setup fees that Experthost.com has incurred to date as part of a promotion or separate charges. Any upgrade of the initial account by customer within the initial 90 day period will be considered a waiver of the money back guarantee and an acceptance of the then current rates and fees. Experthost.com also considers that customers switching from any existing Experthost.com package have already experienced the 90-day Money Back Guarantee. The renewal of the initial period is considered a waiver of the money back guarantee with each customer only being allowed to use the Money Back Guarantee once, and for only one account. Any customer whose account has been suspended or terminated due to the breach of any part of the Experthost.com Service Level Agreement, has automatically forfeited the right to use the Experthost.com Money Back Guarantee. To be considered valid, all money back guarantee requests must be e-mailed to email@example.com within 90 days of sign up for the account.
(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 90-day period. If no written claim or objection regarding such services has been received by NJTech within the 90-day period, services provided by NJTech 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 NJTech's liability.
NJTECH MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NJTECH CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA STORED OR TRANSMITTED VIA ITS SYSTEM. NEITHER NJTECH 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 NJTECH'S PART, EVEN IF NJTECH HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. ?NJTECH?S TOTAL CUMULATIVE LIABILITY, IF ANY, TO CUSTOMER, OR ANY THIRD PARTY, FOR ANY AND ALL DAMAGES, RELATED TO THE ACCEPTABLE USE POLICY OR NJTECH?S SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE FROM ANY NEGLIGENCE, ANY ACT OR OMISSION BY NJTECH OR NJTECH?S REPRESENTATIVES, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, WILL BE LIMITED TO, AND WILL NOT EXCEED, THE ACTUAL DOLLAR AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES, LOSSES AND CAUSES OF ACTIONS DURING THE ONE MONTH PERIOD PRIOR TO THE DATE THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE.
4.4 Customer will take all necessary measures to preclude NJTech from being made a party to any lawsuit or claim regarding NJTech services provided to Customer. Customer hereby agrees to indemnify and hold harmless NJTech from any and all such lawsuits or claims.
5. PROPERTY RIGHTS
NJTech owns all right, title and interest in and to NJTech's trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function,or operation of Plans 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 NJTech's trade names or service marks. Any such license must be the subject of a separate written agreement.
6.1 NJTech 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). NJTech 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 NJTech will not monitor or disclose Customer's private email messages unless required to do so by court order or law, but NJTech will cooperate with law enforcement authorities and will notify such authorities if it suspects that Customer is engaged in illegal activities.
Customer acknowledges that by reason of its relationship with NJTech hereunder, it may have access to certain information and materials relating to NJTech's business plans, customers, software technology, and marketing strategies that is confidential and of substantial value to NJTech, 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 NJTech. 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 NJTech or destroy them, at NJTech's option. The provisions of this section shall survive the termination of this agreement. Upon any breach or threatened breach of this section, NJTech shall be entitled to injunctive relief.
8. RELATIONSHIP OF THE PARTIES; NATURE OF AGREEMENT
The relationship between NJTech 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 NJTech, or in any other way legally bind NJTech in any fashion, nor shall Customer be authorized to make any representations about NJTech or its services other than to set forth the contents of this agreement, of any Plan(s) contracted for, and of any rules and regulations promulgated by NJTech from time to time.
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 the term stated in the initial order.
10.2 Automatic renewal. This agreement shall be renewed automatically for subsequent terms of the same length unless, at least twenty (20) days prior to the next renewal date, one party gives notice of non-renewal to the other. If, prior to the renewal date, NJTech tenders to Customer a copy of NJTech'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 Plan(s) accepted by Customer shall be deemed to be the then-current Plan(s) most closely resembling Customer's prior accepted Plan(s), provided that such subsequent Plan(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 NJTech,
(i) upon thirty (30) days' written notice to Customer, if in the sole judgment of NJTech, Customer breaches any material and substantial provision of this agreement and has not cured by the end of the 30 days.
(ii) immediately upon written notice to Customer, in the event that
(a) Customer, in the sole judgment of NJTech, violates the AUPs, in which case NJTech may either terminate this agreement, or suspend it pending discussions with Customer.
(b) Any bank draft or check delivered by Customer to NJTech in payment for products or services is returned unpaid and Customer fails to remedy such nonpayment within five business days;
(c) Customer becomes more than sixty (60) days in arrears in payment of its account with NJTech;
(d) There are instituted bankruptcy or insolvency proceedings against Customer, which are not vacated within sixty (60) days from the date of filing;
(e) Customer institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency;
(f) Customer makes an assignment of all or part of its assets for the benefit of creditors;
(g) Customer assigns or attempts to assign all or any part of this Agreement without NJTech's prior written approval; or
(h) Customer fails to inform NJTech in writing immediately on the happening of any event specified in this section;
Site(s) that will be immediately shut down without written notice to Customer
(a) Customer site is found to be a Warez (illegal software), Adult site, links or advertising for an Adult Site, hacker/cracker site, hate site, gambling or Casino sites etc. NJTech reserves the right to determine and judge in its sole and absolute discretion which site is inappropriate.
(b) Customer’s who have incorrect or bad scripts running on shared servers that result in increased CPU usage, slow down of the server(s) and/or stoppage of the server will have their sites shut down immediately until the problem is corrected. NJTech will not be held responsible in any way for the downtime associated with Customer’s bad scripts that require closure of the responsible site, nor will any financial renumeration or refund be issued for such a closure.
10.3.2 By Customer,
(i) immediately upon giving written notice to NJTech, if
(a) There are instituted bankruptcy or insolvency proceedings against NJTech, which are not vacated within sixty (60)days from the date of filing;
(b) NJTech institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency;
(c) NJTech makes an assignment of all or part of its assets for the benefit of creditors; or
(d) NJTech fails to inform Customer in writing immediately on the happening of any event specified in this section.
Customer will be responsible for paying the costs of enforcing any unpaid obligations to NJTech, including reasonable attorney fees.
11. PAYMENT METHODS
11.1 All prices are in US dollars.
11.2 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.
12.1 Valid Complaint. All refunds requested with a "valid complaint" will receive a one month refund of the hosting charges. What constitutes a "valid complaint" shall be determined by NJTech 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 NJTech servers MUST be specifically requested in writing by filling out the DELETION REQUEST FORM. NJTech 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.
Customer's rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of NJTech, which consent shall not be unreasonably refused. NJTech'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. NJTech 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 takes effect when accepted by NJTech in Ontario. It is to be governed by and construed under the laws of the Province of Ontario, Canada. The federal and provincial courts of the Province of Ontario shall have exclusive jurisdiction to adjudicate any non-arbitrable dispute arising out of this agreement. Customer hereby expressly consents to:
1. The jurisdiction of the courts of Ontario, Canada and
2. Service of process being effective upon it by registered mail sent to the address set forth at the beginning of this document, as may be changed from time to time by written notice actually received by NJTech. Unless prohibited by the law of Customer's jurisdiction, Customer waives any requirement that service of process or of any documents be made upon it pursuant to the provisions of the Hague Convention.
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.
18.1 All promotions offered are subject to change at any time without notice.
18.2 Promotions regarding free domain registrations require a full year commitment of domain hosting, paid in full upon sign-up. Should the domain hosting associated with the free domain registration be cancelled for any reason, whether by client or NJTech Solutions, a $50 administrative fee will be charged.
18.3 Promotions offering free hosting are subject to an agreement and prepayment for 1 (one) year of hosting. The promotion applies only to the plan fee and does not include any set-up fees or optional features. The free portion of the hosting agreement is applied to the final months of hosting not including the final month of service.
19. ENTIRE AGREEMENT; MODIFICATIONS
This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. NJTech may make changes to this agreement upon written notice to Customer, advising of the change and the effective date thereof. Utilization of NJTech 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.
NJ Tech Solutions Inc.
1 Stafford Road, Suite 277
Nepean, ON K2H 1B9, Canada
North America: 866.397.4678