SeaPortNetHosting Service Agreement
Standard Terms and Conditions of Use
The following words used in context of the Service Agreement are defined as follows:
"Provider": SeaPortNetHosting, a Division of SeaPort computer Systems.
"Client": The person or entity who is applying for Internet Services
The Provider agrees to provide, and Client agrees to receive, access to the services according to the following terms and conditions:
Term and Cancellation
The client agrees to a minimum 3 month term of service after which this Agreement may be terminated by either party, without cause, by giving the other party 30 days written notice. Notwithstanding the above, the Provider may terminate service under this Agreement at any time, without penalty, if the Client fails to comply with the terms of this Agreement.
Lawful Purpose and Acceptable Use
Client may only use the Provider's Server for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, pornographic, profane, or material protected by trade secrets. The Provider strongly encourages you to choose carefully what you place on the server for distribution over the Internet. What you may not consider to be pornographic may be ruled as such in another jurisdiction. The Provider reserves the right to remove any material that it deems to be obscene, pornographic, etc. We will not knowingly host any site that has sexually oriented materials.
Our servers exist to serve commercial web sites and servers only, and their associated utilities. Telnet and FTP exist only to maintain your Virtual or Dedicated Server, and are not "shell" or "dial-up" accounts.
The following are not allowed on our servers:
Our servers are UNMETERED usage, which means we do not charge based on the number of hits, or the megabytes of data transferred. We are NOT, however, UNLIMITED usage. Any program or User who causes the servers performance to be adversely affected, or who monopolizes the servers CPU, Bandwidth, or Disk Activity will be asked to curtail the activity or reduce usage. Any user who's site or software threatens the availability of services to other customers may be disabled immediately if we feel that it is necessary to protect our other clients interest. Violations of any of our policies may result in account termination or suspension.
At the Provider's and its officer's discretion, access to the services may be revoked at any time for abusive conduct on or of the Internet and its resources as a whole. The Provider and its officer's are deemed as authority to define abusive conduct to the system, and definitions may periodically change or be amended to previous ones. The Provider reserves the right, in its sole discretion, to deactivate the Client's account(s) upon an indication of credit problems including delinquent payments.
Representations and Warranties
The parties acknowledge that the Internet is neither owned nor controlled by any one entity; therefore, the Provider can make no guarantee that any given reader shall be able to access The Provider's server at any given time. The Provider represents that it shall make every good faith effort to ensure that its server is available as widely as possible and with as little service interruption as possible.
THE PROVIDER'S SERVICE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. The Provider claims no control whatsoever over the content of the information passing through the service and makes no warranties of any kind, whether expressed or implied, for the service it is providing. The Provider also disclaims any warranty of merchantability or fitness for a particular purpose.
THIS NO WARRANTY EXPRESSLY INCLUDES ANY REIMBURSEMENT FOR LOSSES OF INCOME DUE TO DISRUPTION OF SERVICE BY PROVIDER OR ITS PROVIDERS BEYOND THE FEES PAID BY CLIENT TO PROVIDER FOR SERVICES. The Provider is not responsible for any damages arising from Client's use of Provider or by Client's inability to use the services for any reason. Further, you agree to indemnify and hold harmless the Provider from any claims resulting from your use of the service which damages you or another party.
While Provider shall make every reasonable effort to protect and backup data for Client on a regular basis, the Provider is not responsible for Client's files residing on the servers of the Provider. Client is solely responsible for independent backup of data stored on Provider. The Provider will not be responsible for any damage you suffer. This includes loss of data resulting from delays, nondeliveries, or service interruptions caused by its own negligence or your errors or omissions.
Due to the public nature of the Internet, all information should be considered publicly accessible, and important or private information should be treated carefully. The Provider is not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider or its customers may utilize.
Client expressly agrees that use of the Provider's Server is at Client's sole risk. Neither the Provider, its employees, vendors, affiliates, agents, third party information providers, merchants licensers or the like, warrant that the Provider's Server 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 Server service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Provider's service, unless otherwise expressly stated in this Agreement.
Limitation/Disclaimer of Liability
Under no circumstances, including negligence, shall the Provider, its offices, agents or any one else involved in creating, producing or distributing the Provider's Server service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Provider Server 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 the Provider's records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on the Provider's Server service.
Notwithstanding the above, Client's exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence 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.
Connection speed represents the speed of a connection to and does not represent guarantees of available end to end bandwidth. The Provider expressly limits its damages to the Client for any non-accessibility time or other down time to the pro rata monthly charge during the system unavailability. The Provider specifically denies any responsibilities for any damages arising as a consequence of such unavailability. In the event that this material is not "Server-ready", the Provider may, at its option and at any time, reject this material, including but not limited to after it has been put on the Provider's Servers. The Provider agrees to notify Client immediately of its refusal of the material and afford Client the opportunity to amend or modify the material to satisfy the needs and/or requirements of the Provider. If the Client fails to modify the material, as directed by the Provider, within a reasonable period of time, which shall be determined between the parties themselves, the Agreement shall be deemed to be terminated.
Client agrees that it shall defend, indemnify, save and hold the Provider harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees, ("Liabilities") asserted against the Provider, its agents, its customers, servants officers 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 the Provider against Liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed in connection with the Provider's Server; (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 on the Provider Server.
This Agreement constitutes the entire understanding of the parties. Any changes or modifications to this Contract thereto are agreed to by the both parties upon renewal of Agreement and must be made in writing and signed by both parties.
Resale of the Provider's Service
If Client acts as a "reseller" of the services provided by the Provider to Client hereunder, by the Client providing similar services to its customers, then all the terms of this Agreement shall apply to and be provided to the resale client. Without limiting the foregoing, Client's obligations under this Agreement shall apply to any and all claims made against Client and/or the Provider which arise out of the resale of the Provider's services.
(a) All prior understandings, agreements, representations and warranties, oral or written, between the Client and the Provider are merged in this agreement; it completely expresses their full agreement and has been entered into after full investigation, neither party relying upon any statement made by anyone else that is not set forth in this contract. Further, this Agreement contains the entire agreement between the parties with respect to these matters and there are no promises, agreements, conditions, undertakings, understandings, warranties, covenants or representations, oral or written, express or implied, between them with respect to this Agreement, or the transaction described in this Agreement, other than as set forth in this Agreement.
(b) Neither this contract nor any provision thereof may be waived, changed or cancelled except in writing. This contract shall also apply to and bind the heirs, distributees, legal representatives, successors and permitted assigees of the respective parties.
(c) Each of the parties hereto shall pay its own expenses in connection with this Agreement and the transactions contemplated hereby, including the fees and expenses of its counsel and its certified public accountants.
(d) Assignment. The Provider may assign this Agreement. The Customer may not assign this Agreement without the Provider's written consent.
(e) Attorney's Fees. If a legal proceeding is commenced to enforce or obtain a declaration of rights under this Agreement, the prevailing party in such proceeding shall be entitled to recover its reasonable attorneys' fees and costs incurred in the proceeding from the nonprevailing party, as well as any reasonable attorneys' fees and costs that the prevailing party incurred prior to commencing the proceeding.
(f) IP Addresses. The Provider maintains control and any ownership of any and all IP numbers and addresses that may be assigned to Client and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses.
(g) Relationship of the Parties. The parties intend that an independent contractor relationship will be created by this agreement, and that no partnership, joint venture or employee/employer relationship intended.
(h) Governing Law. All questions with respect to the construction of this Agreement and the rights and liabilities of the parties under this Agreement shall be determined in accordance with the laws of the State of California and the State of Delaware except to the extent that such laws are superseded by Federal Law.
Use of any or all of the Providers services constitutes acceptance of these terms and conditions.
Copyright 1999 SeaPortNetHosting USA
All Rights Reserved