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This User Agreement ("Agreement")
is an agreement between iPowerWeb Internet, Inc. ("iPowerWeb"),
a California corporation, and the party set forth in the related
order form incorporated herein by reference (together with
any subsequent order forms submitted by Customer, the "Order
Form"), and applies to the purchase of all services (collectively,
the "Services") ordered by Customer on the Order Form. Such
party is referred to in this Agreement as "Customer" or "you".
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE BUTTON
ON THE ORDER FORM, YOU ARE AGREEING TO BE BOUND BY THE TERMS
OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED
BY REFERENCE IN THIS AGREEMENT, INCLUDING iPowerWeb'S USAGE
POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF
THIS AGREEMENT. iPowerWeb reserves the right to reject this
Agreement for any reason or no reason, prior to acceptance
thereof by iPowerWeb. Activation of the Services shall indicate
iPowerWeb's acceptance of this Agreement. Subject to the terms
and conditions of this Agreement, iPowerWeb will provide to
Customer the Services selected by Customer set forth on the
Order Form.
1. Usage Policy
Under this Agreement, Customer shall comply with iPowerWeb's
then current "Usage Policy", as amended, modified or updated
from time to time by iPowerWeb, which currently can be viewed
at http://www.iPowerWeb.com/partner/company/legal/legal_usage.html,
and which is incorporated in this Agreement by reference.
Customer hereby acknowledges that it has reviewed the Usage
Policy and that the terms of the Usage Policy are incorporated
herein by reference. In the event of any inconsistencies between
this Agreement and the Usage Policy, the terms of the Usage
Policy shall govern. iPowerWeb does not intend to systematically
monitor the content which is submitted to, stored on or distributed
or disseminated by Customer via the Service (the "Customer
Content"). Customer Content includes content of Customer's
customers and/or users of Customer's website. Accordingly,
under this Agreement, you will be responsible for your customers
content and activities on your website. Notwithstanding anything
to the contrary contained in this Agreement, iPowerWeb may
immediately take corrective action, including removal of all
or a portion of the Customer Content, disconnection or discontinuance
of any and all Services, or termination of this Agreement
in the event of notice of possible violation by Customer of
the Usage Policy. In the event iPowerWeb takes corrective
action due to a violation of the Usage Policy, iPowerWeb shall
not refund to Customer any fees paid in advance of such corrective
action. Customer hereby agrees that iPowerWeb shall have no
liability to Customer or any of Customer's customers due to
any corrective action that iPowerWeb may take (including,
without limitation, disconnection of Services).
2. Amendment
iPowerWeb may amend, modify or update this Agreement or the
Usage Policy at any time in its sole discretion, and Customer
shall be bound by any such amendment, modification or update.
iPowerWeb may, but is under no obligation to, provide notice
of any amendment, modification or update of this Agreement
or the Usage Policy. Any modification is effective on the
earlier of two days after posting on iPowerWeb's website or
two days after the sending of a notice by iPowerWeb to Customer
by e-mail or conventional mail. If any material modification
to this Agreement or the Usage Policy is unacceptable to you,
you may terminate your subscription as provided in Section
3. However, if you do not terminate the Agreement, or if you
continue to use the Services following effectiveness of the
modification, your continued use will mean that you have accepted
that modification. iPowerWeb reserves the right to amend its
service offerings and add, delete, suspend or modify the terms
and conditions of the Services, at any time and from time
to time, and to determine whether and when any such changes
apply to both existing and future customers.
3. Term; Termination; Cancellation Policy
The initial term of this Agreement shall be as set forth in
the Order Form (the "Initial Term"). The Initial Term shall
begin upon commencement of the Services to Customer. After
the Initial Term, this Agreement shall automatically renew
for successive terms of equal length as the Initial Term,
unless terminated or cancelled by either party as provided
in this section. The Initial Term and all successive renewal
periods shall be referred to, collectively, as the "Term".
This Agreement may be terminated (i) by either party by giving
the other party 30 days prior written notice (subject to an
early cancellation fee as provided below), (ii) by iPowerWeb
in the event of nonpayment by Customer, (iii) by iPowerWeb,
at any time, without notice, if, in iPowerWeb's judgment,
Customer is in violation of any term or condition of the Usage
Policy or Customer's use of the Service disrupts or, in iPowerWeb's
judgment, could disrupt, iPowerWeb's business operations and
(iv) by iPowerWeb in accordance with Sections 1, 9, and 10
of this Agreement.
If you cancel this Agreement prior to the end of the Term,
(i) you shall be obligated to pay all fees and charges accrued
prior to the effectiveness of such cancellation, (ii) iPowerWeb
shall refund to you all pre-paid fees for basic hosting services
(shared, dedicated and/or managed) for the full months remaining
after effectiveness of cancellation (i.e., no partial month
fees shall be refunded), less any setup fees and any discount
applied for prepayment, (iii) you shall be obligated to pay
100% of all charges for all Services for each month remaining
in the Term (other than basic hosting fees as provided in
(ii) above) and (iii) iPowerWeb shall have the right to charge
you an early cancellation fee of $25.00. Any cancellation
request shall be effective 30 days after receipt by iPowerWeb,
unless a later date is specified in such request.
If iPowerWeb cancels this Agreement prior to the end of the
Term, iPowerWeb shall not refund to you any fees paid in advance
of such cancellation and (i) you shall be obligated to pay
all fees and charges accrued prior to the effectiveness of
such cancellation, (ii) you shall be obligated to pay 100%
of all charges for all Services for each month remaining in
the Term and (iii) iPowerWeb shall have the right to charge
you an early cancellation fee of $25.00.
4. Billing and Payment
All fees for the Services shall be in accordance with iPowerWeb's
fee schedule then in effect, the terms of which are incorporated
herein by reference, and shall be due at the times provided
therein. A $15.00 late fee will apply to accounts past due
more than ten (10) calendar days from the due date. iPowerWeb
may, with 30 days notice to Customer, amend the Services and/or
the rates and fees it charges for the Services. Fees for renewal
periods after the Initial Term shall be due and owing immediately
upon the first day of such renewal period. iPowerWeb may impose
a debt service charge equal to one and one-half percent (1.5%)
of the overdue balance (or such lesser amount as may be required
by law) for each month or fraction thereof the overdue amount
remains unpaid. In addition, in the event that any amount
due iPowerWeb remains unpaid twenty (20) days after such payment
is due, iPowerWeb, in its sole discretion, may immediately
terminate this Agreement, and/or withhold or suspend Services.
There will be a $50.00 charge to reinstate accounts that have
been suspended or terminated. All taxes, fees and governmental
charges relating to the Services provided hereunder (other
than income taxes of iPowerWeb) shall be paid by Customer.
Customer agrees that iPowerWeb may pre-charge Customer's fees
for the Services to the credit card supplied by Customer during
registration.
Returned checks will be assessed a $30.00 charge. Wire transfers
will be assessed a $30.00 charge.
5. Special Provisions Applicable
to Resellers
iPowerWeb from time to time may offer reseller programs which
will permit Customers to resell certain of iPowerWeb's products
and services, and be eligible for certain discounts, services
and other promotions. A Customer that participates in a reseller
program is referred to herein as a "Reseller". To be eligible
to participate in a reseller program, the Reseller may be
required to meet certain requirements as provided in such
reseller program. If you are a Reseller, the terms and conditions
in this section (in addition to any terms or conditions contained
in the reseller program) are applicable to you.
As a Reseller, you are iPowerWeb's Customer. A Reseller shall
be deemed, and is the "Customer" for all purposes under this
Agreement and the Usage Policy. When you resell the Services,
the purchaser of those resold services becomes your customer
(a "Reseller Customer"). A Reseller Customer is not a Customer
of iPowerWeb, and iPowerWeb will not support any Reseller
Customer. Reseller shall take all necessary measures to preclude
iPowerWeb from being made a party to any agreement with any
Reseller Customer. As a Reseller, you are authorized to resell
the Services identified in the applicable reseller program
on a non-exclusive basis. iPowerWeb reserves the right to
market and sell its products and services through its own
employees, other resellers and other representatives and retailers
that may compete with you. The terms and conditions of such
other relationships may differ from the terms of this Agreement
and the reseller program, and may be better. Reseller shall
be responsible for billing, and collecting payments from,
Reseller Customers. Reseller shall not withhold payments to
iPowerWeb under this Agreement because of a failure of a Reseller
Customer to make payments to Reseller. Reseller may set the
prices to be paid to it by Reseller Customers for any of the
resold Services. Reseller shall provide all support (including,
without limitation, customer support, first level support,
second level support, and other technical support) for Reseller
Customers. Reseller shall pay all sales, use, transfer, privilege,
excise or other taxes and all duties, whether international,
state or local, however designated, which are levied or imposed
on iPowerWeb and Reseller under this Agreement and any and
all transactions between Reseller and Reseller Customers.
Reseller shall not resell the Services under iPowerWeb's brand
name. Reseller shall be solely responsible for compliance
with any regulations governing the export of the Services
(or any portion thereof). Nothing in this Agreement constitutes
a license to Reseller to use or resell the Marks (as defined
below).
6. iPowerWeb as Reseller or Licenso
iPowerWeb is acting only as a reseller or licensor of the
hardware, software and equipment used in connection with the
products and/or Services that were or are manufactured or
provided by a third party ("Non-iPowerWeb Product"). iPowerWeb
shall not be responsible for any changes in the Services that
cause the Non-iPowerWeb Product to become obsolete, require
modification or alteration, or otherwise affect the performance
of the Services. Any malfunction or manufacturer's defects
of Non-iPowerWeb Product either sold, licensed or provided
by iPowerWeb to Customer or purchased directly by Customer
used in connection with the Services will not be deemed a
breach of iPowerWeb's obligations under this Agreement. Any
rights or remedies Customer may have regarding the ownership,
licensing, performance or compliance of Non-iPowerWeb Product
are limited to those rights extended to Customer by the manufacturer
of such Non-iPowerWeb Product. Customer is entitled to use
any Non-iPowerWeb Product supplied by iPowerWeb only in connection
with Customer's permitted use of the Services. Customer shall
use its best efforts to protect and keep confidential all
intellectual property provided by iPowerWeb to Customer through
any Non-iPowerWeb Product and shall make no attempt to copy,
alter, reverse engineer, or tamper with such intellectual
property or to use it other than in connection with the Services.
Customer shall not resell, transfer, export or re-export any
Non-iPowerWeb Product, or any technical data derived therefrom,
in violation of any applicable United States or foreign law.
7. IP Address Ownership
If iPowerWeb assigns Customer an Internet Protocol address
for Customer's use, the right to use that Internet Protocol
address shall belong only to iPowerWeb, and Customer shall
have no right to use that Internet Protocol address except
as permitted by iPowerWeb in its sole discretion in connection
with the Services, during the term of this Agreement. iPowerWeb
shall maintain and control ownership of all Internet Protocol
numbers and addresses that may be assigned to Customer by
iPowerWeb, and iPowerWeb reserves the right to change or remove
any and all such Internet Protocol numbers and addresses,
in its sole and absolute discretion.
8. Caching
Customer expressly (i) grants to iPowerWeb a license to cache
the entirety of the Customer Content and Customer's web site,
including content supplied by third parties, hosted by iPowerWeb
under this Agreement and (ii) agrees that such caching is
not an infringement of any of Customer's intellectual property
rights or any third party's intellectual property rights.
9. CPU Usage
Customer agrees that Customer shall not use excessive amounts
of CPU processing on any of iPowerWeb's servers. Any violation
of this policy may result in corrective action by iPowerWeb,
including assessment of additional charges, disconnection
or discontinuance of any and all Services, or termination
of this Agreement, which actions may be taken in iPowerWeb's
sole and absolute discretion. If iPowerWeb takes any corrective
action under this section, Customer shall not be entitled
to a refund of any fees paid in advance prior to such action.
10. Bandwidth and Disk Usage
Customer agrees that bandwidth and disk usage shall not exceed
the number of megabytes per month for the Services ordered
by Customer on the Order Form (the "Agreed Usage"). iPowerWeb
will monitor Customer's bandwidth and disk usage. iPowerWeb
shall have the right to take corrective action if Customer's
bandwidth or disk usage exceeds the Agreed Usage. Such corrective
action may include the assessment of additional charges, disconnection
or discontinuance of any and all Services, or termination
of this Agreement, which actions may be taken in iPowerWeb's
sole and absolute discretion. If iPowerWeb takes any corrective
action under this section, Customer shall not be entitled
to a refund of any fees paid in advance prior to such action.
11. Property Rights
iPowerWeb owns all right, title and interest in and to the
Services and iPowerWeb's trade names, trademarks, service
marks, inventions, copyrights, trade secrets, patents, know-how
and other intellectual property rights relating to the design,
function, marketing, promotion, sale and provision of the
Services and the related hardware, software and systems ("Marks").
Noting in this Agreement constitutes a license to Customer
to use or resell the Marks.
12. Customer Web Site; E-Commerce;
Customer Warranties
Customer shall be solely responsible for the development,
operation and maintenance of Customer's web site, online store
and e-commerce activities, for all products and services offered
by Customer or appearing online and for all contents and materials
appearing online or on Customer's products, including, without
limitation (i) the accuracy and appropriateness of the Customer
Content and content and material appearing in its store or
on its products, (ii) ensuring that the Customer Content and
content and materials appearing in its store or on its products
do not violate or infringe upon the rights of any person,
and (iii) ensuring that the Customer Content and the content
and materials appearing in its store or on its products are
not defamatory or otherwise illegal. Customer shall be solely
responsible for accepting, processing and filling customer
orders and for handling customer inquiries or complaints.
Customer shall be solely responsible for the payment or satisfaction
of any and all taxes associated with its web site and online
store.
Customer shall be responsible for the security and confidentiality
of any customer information (including, without limitation,
customer credit card numbers) that Customer may receive as
a result of its web site or online store.
Customer represents and warrants to iPowerWeb that Customer
owns or has the right to use the Customer Content and material
contained therein, including all text, graphics, sound, music,
video, programming, scripts and applets, and the use, reproduction,
distribution and transmission of the Customer Content and
any information and materials contained therein does not,
and will not, (i) infringe or misappropriate any copyright,
patent, trademark, trade secret or any other proprietary right
of a third party, (ii) violate any criminal laws or (iii)
constitute false advertising, unfair competition, defamation,
an invasion of privacy, violate a right of publicity or violate
any other law or regulation. Customer grants iPowerWeb the
right to reproduce, copy, use and distribute all and any portion
of the Customer Content to the extent needed to provide and
operate the Services.
13. Disclaimer of Warranty
Customer agrees to use all Services and any information obtained
through or from iPowerWeb, at Customer's own risk. Customer
acknowledges and agrees that iPowerWeb exercises no control
over, and accepts no responsibility for, the content of the
information passing through iPowerWeb's host computers, network
hubs and points of presence or the Internet. THE SERVICES
PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS
AVAILABLE BASIS. NONE OF iPowerWeb, ITS PARENT, SUBSIDIARY
OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES,
OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS,
THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR
THE LIKE (EACH, AN "iPowerWeb PERSON") MAKE ANY WARRANTIES
OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES
OR ANY EQUIPMENT iPowerWeb PROVIDES. NO iPowerWeb PERSON MAKES
ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR
ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE
RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES
OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION,
SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE
SERVICES. iPowerWeb IS NOT LIABLE, AND EXPRESSLY DISCLAIMS
ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER
TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S
CUSTOMERS VIA THE SERVICES PROVIDED BY iPowerWeb. NO ORAL
ADVICE OR WRITTEN INFORMATION GIVEN BY ANY iPowerWeb PERSON,
WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION
OR ADVICE. The terms of this section shall survive any termination
of this Agreement.
14. Indemnification
Customer agrees to indemnify, defend and hold harmless iPowerWeb
and its parent, subsidiary and affiliated companies, and each
of their respective officers, directors, employees, shareholders
and agents (each an "indemnified party" and, collectively,
"indemnified parties") from and against any and all claims,
damages, losses, liabilities, suits, actions, demands, proceedings
(whether legal or administrative), and expenses (including,
but not limited to, reasonable attorney's fees) threatened,
asserted, or filed by a third party against any of the indemnified
parties arising out of or relating to (i) Customer's use of
the Services, (ii) any violation by Customer of the Usage
Policy, (iii) any breach of any representation, warranty or
covenant of Customer contained in this Agreement or (iv) any
acts or omissions of Customer. The terms of this section shall
survive any termination of this Agreement.
15. Limitation of Liability
Customer agrees that no iPowerWeb Person, under any circumstances,
shall be held responsible or liable for situations where the
Services are accessed by third parties through illegal or
illicit means, including situations where such data is accessed
through the exploitation of security gaps, weaknesses or flaws
(whether known or unknown to iPowerWeb at the time) which
may exist in the Services or iPowerWeb's equipment used to
provide the Services.
Under no circumstances, including negligence, shall any iPowerWeb
Person be liable for any indirect, incidental, special, consequential
or punitive damages, or loss of profits, revenue, data or
use by Customer, any of its customers, any Reseller Customer
or any other third party, whether in an action in contract
or tort or strict liability or other legal theory, even if
iPowerWeb has been advised of the possibility of such damages.
No iPowerWeb Person shall be liable to Customer, any of its
customers, any Reseller Customer or any other third party,
for any loss or damages that result or are alleged to have
resulted from the use of or inability to use the Services,
or that results from mistakes, omissions, interruptions, deletion
of files, loss of data, errors, viruses, defects, delays in
operations, or transmission or any failure of performance,
whether or not limited to acts of God, communications failure,
theft, destruction or unauthorized access to iPowerWeb's records,
programs, equipment or services.
Notwithstanding anything to the contrary in this Agreement,
iPowerWeb's maximum liability under this Agreement for all
damages, losses, costs and causes of actions from any and
all claims (whether in contract, tort, including negligence,
quasi-contract, statutory or otherwise) shall not exceed the
actual dollar amount paid by Customer for the Services which
gave rise to such damages, losses and causes of actions during
the 12-month period prior to the date the damage or loss occurred
or the cause of action arose.
Customer understands, acknowledges and agrees that if iPowerWeb
takes any corrective action under this Agreement because of
an action of Customer or one if its customer or a Reseller
Customer, that corrective action may adversely affect other
customers of Customer or other Reseller Customers, and Customer
agrees that iPowerWeb shall have no liability to Customer,
any of its customers or any Reseller Customer due to such
corrective action by iPowerWeb.
This limitation of liability reflects an informed, voluntary
allocation between the parties of the risks (known and unknown)
that may exist in connection with this Agreement. The terms
of this section shall survive any termination of this Agreement.
16. Force Majeure
iPowerWeb shall not be liable for failure or delay in performing
it obligations hereunder if such failure or delay is due to
circumstances beyond its reasonable control, including, without
limitation, acts of any governmental body, war, insurrection,
sabotage, embargo, fire, flood, strike or other labor disturbance,
interruption of or delay in transportation, unavailability
of, interruption or delay in telecommunications or third party
services (including DNS propagation), failure of third party
software or hardware or inability to obtain raw materials,
supplies or power used in or equipment needed for provision
of the Services.
17. Governing Law; Jurisdiction;
Arbitration
This Agreement shall be governed in all respects by California
law without regard to the conflict of law provisions thereof.
Both parties submit to personal jurisdiction in California.
Any controversy or claim arising out of, relating to or in
connection with this Agreement, or the breach thereof, shall
be subject to arbitration administered by the American Arbitration
Association ("AAA") in accordance with its then existing Commercial
Arbitration Rules (collectively, the "AAA Rules") and judgment
upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. The place of arbitration
shall be Los Angeles, California, or any other place selected
by mutual agreement of the parties. An award rendered in connection
with an arbitration pursuant to this Section shall be final
and binding upon the parties and the parties agree and consent
that the arbitral award shall be conclusive proof of the validity
of the determinations of the arbitrations set forth in the
award, and any judgment upon such an award may be entered
and enforced in any court of competent jurisdiction. The parties
agree that the award of the arbitral tribunal will be the
sole and exclusive remedy between them regarding any and all
claims and counterclaims between them with respect to the
subject matter of the arbitrated dispute. The parties hereby
waive all in personam jurisdictional defenses in connection
with any arbitration hereunder or the enforcement of an order
or award rendered pursuant thereto. In any legal action, the
prevailing party will be entitled to recover all legal expenses
incurred in connection with the action, including but not
limited to its costs, both taxable and non-taxable, and reasonable
attorney's fees. The terms of this section shall survive any
termination of this Agreement.
18. Assignment
Customer shall not have the right to assign this Agreement
without the prior written consent of iPowerWeb. This Agreement
shall be binding upon and inure to the benefit of Customer
and iPowerWeb and their successors and permitted assigns.
19. Entire Agreement; Severability
This Agreement, together with the Order Form and any other
documents or agreements specifically identified in this Agreement,
represents the entire agreement between the parties, and supercedes
all previous representations, understandings or agreements.
If any provision of this Agreement shall be held by a court
of competent jurisdiction to be invalid, unenforceable, or
void, the remainder of this Agreement shall remain in full
force and effect.
Customer hereby represents that he, she or it is either, an
individual entering this Agreement for his or her personal
use and is over 18 years of age, or a corporation, limited
partnership or other legal entity, duly organized, validly
existing and in good standing under the laws of the state
of its organization and the person acting on behalf of Customer
is duly authorized to accept, execute and deliver this Agreement
on behalf of Customer. |
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© Copyright 1999-2003 iPowerWeb, Inc. All Rights Reserved. Legal Details
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