Online Services AGREEMENT
This Online Services Agreement ("Agreement") is
entered into be effective as of the Submission Date indicated in the initial
Online Services Order Form once accepted by Commercial Network Services, a
Nevada Corporation ("CNS") with its principal place of business located
at 4876 Santa Monica Avenue #111, San Diego, California 92107, USA, and the customer identified below ("Customer").
1.
Online Services.
Subject to the terms and conditions of this Agreement,
during the term of this Agreement, CNS will provide to Customer the services
described in the Service Order Form(s) agreed upon by Customer and CNS ("Online
Services"). All Service Order Forms agreed to by Customer and CNS shall be
incorporated herein by this reference, each as of the Submission Date indicated
in such form. CNS shall have the
right to modify the services provided that such modification substantially
provides similar services with similar benefits.
2.
FEES AND BILLINGS.
2.1.
Subscription and Setup Fees. Customer
shall pay all subscription fees and set up fees due as set forth in the
applicable Service Order Form on or before the Commencement Date.
Subject to the money-back guarantee as set forth in Section 9.5, all fees
paid are nonrefundable whether or not Online Services are terminated pursuant to
Section 9 or Online Services are downgraded pursuant to Customer’s request.
2.2.
Billing Commencement. Billing for
other fees for Online Services shall commence on the earlier to occur of (i) the
"Installation Date" indicated in the initial Service Order Form,
regardless of whether Customer has commenced use of the Online Services, unless
Customer is unable to install the “Customer Equipment” (defined as
Customer's computer hardware and other tangible equipment, as identified in the
Customer Equipment List attached hereto as Exhibit “A” and incorporated herein
by this reference) and/or use the Online Services by the Installation Date due
to the fault of CNS, then billing will not begin until the date CNS has remedied
each fault, and (ii) the date the Customer Equipment is placed by Customer in
the "Customer's Area" (defined as the portion(s) of the Internet Data
Centers, as defined in Section 3.1 below, made available to Customer hereunder
for the placement of Customer Equipment) and is operational, as determined by
CNS. In the event that Customer orders
additional Online Services, billing for such services shall commence on the date
CNS first provides such additional Online Services to Customer or as otherwise
agreed to by Customer and CNS.
2.3.
Billing and Payment Terms. Customer
will be billed seven (7) days prior in advance of the Renewal Date of the
provision of Online Services.
Payment of such fees shall be due upon receipt. All payments shall be made
in U.S. dollars. All sums due to CNS
which are not received by CNS by the Renewal Date shall accrue interest at a
rate of one and one-half percent (1.5%) per month, or the highest rate allowed
by applicable law, whichever is lower, until paid.
CNS reserves the right to suspend Online Services if Customer fails to
pay within five (5) days of the Renewal Date.
If CNS believes, in its reasonable judgment, that there has been a
material, adverse change in the financial condition of Customer, CNS may, upon
written notice to Customer, modify the payment terms to require full payment
before the provision of Online Services or other assurances to secure Customer's
payment obligations hereunder, including, without limitation, requiring the
payment of a security deposit.
2.4.
Taxes. Customer shall be
responsible for paying national, state, municipal or other governmental excise,
sales, value-added, use, personal property, and occupational taxes, excises,
withholding taxes and obligations and other levies that may be imposed by any
government body or agency that may result from this Agreement, or any of the
Online Services provided hereunder (other than taxes relating to the income of
CNS).
2.5.
Credit Card Payments. If
Customer submits a credit card for payment of Online Services then Customer
expressly authorizes CNS to charge all fees due to CNS to the credit card on
file automatically as they become due. This authorization shall continue
until the Online Services are terminated by Customer in accordance with Section
9 of this Agreement.
3.
CUSTOMER'S OBLIGATIONS.
3.1.
Compliances with Law and Rules and Regulations.
Customer shall comply at all times with
all applicable laws and regulations, the Acceptable Use Policy (“AUP”)
(as set forth as Exhibit “B” and incorporated herein by this reference), and
CNS' general rules and regulations relating to its provision of Online Services
(as published on CNS’ website and updated from time to time) (all collectively
referred to hereinafter as the "Rules and Regulations").
Customer shall be solely responsible to
ensure that the information it transmits and receives using Customer Equipment
placed in Customer’s Area within a CNS Internet Data Center complies with all
Rule and Regulations. Customer acknowledges that CNS may share customer
data, usage history and any other relevant information with law enforcement if
CNS, at its sole discretion, reasonably believes that such activities to be
illegal.
3.2.
Costs and Expenses. Customer shall
be solely responsible, and at CNS' request will reimburse CNS, for all costs and
expenses (other than those included as part of the Online Services and except as
otherwise expressly provided herein) it incurs in connection with this
Agreement.
3.3.
Access and Security. Customer will
be fully responsible for any charges, costs, expenses (other than those included
in the Online Services), and third party claims that may result from its use of,
or access to, the CNS’ Internet Data Center(s) and/or the Customer Area
including, but not limited to, any unauthorized use of any access devices
provided by CNS hereunder.
3.4.
Contact Information. Customer agrees to provide a correct and verifiable name, address and
contact information to CNS on the Service Order Form, and to keep this
information current at all times. CNS may suspend or terminate Online
Services to Customer at any time if, in CNS's sole discretion, CNS believes any
customer information is intentionally misleading, unverifiable or otherwise
inaccurate. CNS may require Customer to provide verifiable government
issued identification at any time, including, without limitation, before issuing
any refunds, and may refuse to issue a refund to any Customer who, in CNS' sole
discretion, has been identified as willfully providing false or misleading
contact information.
3.5.
No Liability.
Customer agrees CNS shall not responsible for any losses or damages that
may result from an interruption of Online Services by CNS due Customer’s breach
of this Agreement or the Rules and Regulations. Customer further agrees
and acknowledges that no refunds are due for any interruption or termination of
Online Services by CNS due to Customer’s breach of this Agreement or the Rules
and Regulations.
4.
CONFIDENTIAL INFORMATION.
4.1.
Confidential Information. Each party acknowledges that it will have
access to certain confidential information of the other party concerning the
other party's business, plans, customers, technology, and products, including
the terms and conditions of this Agreement ("Confidential Information").
Additionally, Confidential Information
shall include, but not be limited to, each party's proprietary software,
customer information and any other any information that has commercial
value or other utility to the other party, and any information which if
disclosed or misappropriated, would be detrimental to that party, whether or not
such information is explicitly identified as Confidential Information. Each party agrees that it
will not use in any way, for its own account or the account of any third party,
except as expressly permitted by this Agreement, nor disclose to any third party
(except as required by law, permitted by this Agreement, or to that party's
attorneys, accountants and other advisors as reasonably necessary), any of the
other party's Confidential Information and will take reasonable precautions to
protect the confidentiality of such information.
4.2.
Exceptions. Information will not
be deemed Confidential Information hereunder if such information: (i) is known
to the receiving party prior to receipt from the disclosing party directly or
indirectly from a source other than one having an obligation of confidentiality
to the disclosing party; (ii) becomes known (independently of disclosure by the
disclosing party) to the receiving party directly or indirectly from a source
other than one having an obligation of confidentiality to the disclosing party;
(iii) becomes publicly known or otherwise ceases to be secret or confidential,
except through a breach of this Agreement by the receiving party; (iv) is
independently developed by the receiving party; or (v) is disclosed in
compliance with the Privacy Policy posted on CNS’s website from time to time.
5.
REPRESENTATIONS AND WARRANTIES.
5.1.
Warranties by Customer.
5.1.1.
Customer's Business. Customer
represents and warrants that Customer's services, products, materials, data,
information and Customer Equipment used by Customer in connection with this
Agreement as well as Customer's and its permitted customers' and users' use of
the Online Services (collectively, "Customer's Business") does not, as of
the Commencement Date or Installation Date, and will not during the term of this
Agreement operate in any manner that would violate any of the Rules or
Regulations.
5.1.2. Rules and
Regulations. Customer is familiar
with the applicable laws and regulations relating to Customer’s Business and has
read CNS’ general rules and regulations as well as the AUP both published on
CNS’ website. Customer represents and
warrants that Customer and Customer's Business are currently in full compliance
with all applicable Rules and Regulations, and will remain so at all times
during the term of this Agreement.
5.1.3. Good
Standing/Authority. Customer
represents and warrants that (i) it is in good standing with all applicable
local, state and federal agencies; and (ii) the person executing this Agreement
of behalf of Customer is authorized to bind Customer to the terms and conditions
contained herein.
5.1.4.
Breach of Warranties. In
the event of any breach, or reasonably anticipated breach, of any of the
foregoing warranties, in addition to any other resolution available at law or in
equity, CNS will have the right immediately, in CNS' sole discretion, to suspend
or terminate any related Online Services if deemed reasonably necessary by CNS
to prevent any harm to CNS, its business, or third parties.
5.1.5.
Liquidated Damages.
The
parties agree that it would be impractical and extremely difficult to affix the
actual damages caused by a breach of Customer’s warranty against sending
unsolicited commercial electronic mail messages; therefore, the parties agree
that, in addition to reimbursing CNS for all costs, including attorney fees, if
any, incurred in establishing that Customer sent more than two (2) unsolicited
commercial electronic mail messages, Customer shall pay Employer the sum
of Fifty and No/100th Dollars ($50.00) for each occurrence up to
Twenty-Five Thousand and No/100ths Dollars ($25,000.00) per day, whichever
amount is greater, as liquidated damages for breaching this provision, which is
expressly authorized by California Business & Professions Code Section
17538.45(f).
5.2
Warranties and Disclaimers by CNS.
5.2.1. Service Level
Warranty. In the event Customer
experiences any of the following and CNS determines in its reasonable judgment
that such inability was caused by CNS' failure to provide Online Services for
reasons within CNS' reasonable control and not as a result of any actions of
inactions of Customer or any third parties (including Customer Equipment and
third party equipment), CNS will, upon Customer's request in accordance with
subsection 5.2.1.3 below, credit Customer's account as described below:
5.2.1.1.
Inability to Access the Internet. If
Customer is unable to transmit and/or receive information from CNS' Internet
Data Center (i.e., CNS' LAN and WAN) to other portions of the Internet because
CNS failed to provide the Online Services pursuant to this Agreement and such
failure was the direct fault of CNS (hereinafter, “Downtime”) for more
than thirty (30) consecutive minutes, CNS shall issue a credit to Customer's
account equal to five (5%) of the connectivity charges (i.e., all bandwidth
related charges) for each thirty (30) minutes of Downtime up to one hundred
percent (100%) of monthly connectivity charges. CNS' scheduled Maintenance
Window (as defined below) of the Internet Data Center(s) and Online Services, as
described in the Rules and Regulations, shall not be deemed to be a failure of
CNS to provide Online Services. For purposes of the foregoing, "unable to
transmit and receive" shall mean sustained packet loss in excess of 50% based on
CNS' requirements.
5.2.1.2.
Packet Loss and Latency. CNS
monitors packet loss, transmission latency and stability of specific customers
through subscriber logs. CNS also proactively monitors the aggregate packet loss
and transmission latency within its LAN, WAN and Internet Service Providers. In
the event that CNS discovers (either from its own efforts or after being
notified by Customer) that Customer is experiencing packet loss in excess of one
percent (1%) ("Excess Packet Loss") or transmission latency in excess of
160 milliseconds round trip time (based on CNS' measurements) between any two
Internet Data Centers within CNS' worldwide network or 80milliseconds between
Internet Data Centers within in the USA (collectively, "Excess Latency",
and with Excess Packet Loss "Excess Packet Loss/Latency"), CNS will take
all actions necessary to determine the source of the Excess Packet Loss/Latency.
5.2.1.2.1.
Time to Discover Source of Excess Packet Loss/Latency; Notification of
Customer. Within two (2) hours of discovering the existence of Excess Packet
Loss/Latency, CNS will determine whether the source of the Excess Packet
Loss/Latency is linked to the Customer Equipment and the CNS equipment
connecting the Customer Equipment to CNS' LAN ("Customer Specific Packet
Loss/Latency"). If the Excess Packet Loss/Latency is not a Customer Specific
Packet Loss/Latency, CNS will determine the source of the Excess Packet
Loss/Latency within two (2) hours after determining that it is not a Customer
Specific Packet Loss/Latency. In any event, CNS will notify Customer of the
source of the Excess Packet Loss/Latency within sixty (60) minutes after
identifying the source.
5.2.1.2.2.
Remedy of Excess Packet Loss/Latency. If the Excess Packet
Loss/Latency remedy is within the sole control of CNS, CNS will remedy the
Excess Packet Loss/Latency within two (2) hours of determining the source of the
Excess Packet Loss/Latency. If the Excess Packet Loss/Latency is caused from
outside of the CNS LAN or WAN, CNS will notify Customer and will use
commercially reasonable efforts to notify the party(ies) responsible for the
source and cooperate with it (them) to resolve the problem as soon as possible.
5.2.1.2.3.
Failure to Determine Source and/or Resolve Problem. In the event
that CNS is unable to determine the source of and remedy the Excess Packet
Loss/Latency within the time periods described above (where CNS was solely in
control of the source), CNS will credit Customer's account the pro-rata
connectivity charges for one (1) day of service for every two (2) hours after
the time periods described above that it takes CNS to resolve the problem, up to
an aggregate maximum credit of connectivity charges for seven (7) days of
service in any one (1) month.
5.2.1.3.
Independent Monitoring; Automatic Credit.
CNS’ network is independently monitored by HyperSpin from multiple
locations. CNS will automatically
issue the applicable credit whenever HyperSpin records Downtime.
5.2.1.4.
Remedies Shall Not Be Cumulative; Maximum Credit.
In the event that Customer is entitled to
multiple credits hereunder arising from the same Event (for purposes of this
Agreement, an “Event” is hereby defined as a single period of thirty (30)
minutes of Downtime), such credits shall not be cumulative and Customer shall be
entitled to receive only the maximum single credit available for such Event.
In no event shall CNS be required to
credit Customer more than one (1) month’s fees for any one Event.
A credit shall be applied only to the
month in which there was the Event that resulted in the credit and will appear
within seven (7) days of the Event. Notwithstanding
the above, Customer shall not be eligible to receive any credits for periods in
which Customer received any Online Services free of charge.
5.2.1.5.
Exclusions. This
warranty does not apply to any Online Services that expressly exclude this
warranty (as described in the specification sheets for such products).
The credits described herein along with
Customer’s right to terminate this Agreement for Chronic Issues as described in
Section 9.4, shall be Customer’s sole and exclusive remedy for any failure by
CNS to provide Online Services in accordance with the warranted service levels.
5.2.1.6.
“Maintenance Window” Defined.
For purposes of this Agreement, the term “Maintenance Window” shall mean
every Friday from 7:00 pm Pacific Standard Time (GMT 3:00 am) to Saturday at
11:59 pm (GMT 7:59 am Sunday).
5.3.
No Other Warranty.
Except for the express service level warranty set forth in Section 5.2 above and
the Money-Back Guarantee as set forth in Section 9.5, the Online Services are
provided on as "as is" basis, and Customer's use of the Online Services is at
its own risk. CNS does not make, and hereby declaims, any and all other express
and/or implied warranties, including, but not limited to, warranties of
merchantability, fitness for a particular purpose, noninfringement and title,
and any warranties arising from a course of dealing, usage, or trade practice.
CNS does not warrant that the Online
Services will be uninterrupted, error-free, or completely secure.
5.4.
Disclaimer of Actions Caused by and/or Under the Control of Third Parties.
CNS does not and cannot control the flow
of data to or from CNS' Internet Data Centers and other portions of the
Internet. Such flow depends in large part
on the performance of internet services provided or controlled by third parties.
At times, actions or inactions caused by these third parties can produce
situations in which CNS' customers' connections to the Internet (or portions
thereof) may be impaired or disrupted. Although CNS will use commercially
reasonable efforts to take actions it deems appropriate to remedy and avoid such
events, CNS cannot guarantee that they will not occur. Accordingly, CNS declaims
any and all liability resulting from or related to such events.
6.
LIMITATIONS OF LIABILITY.
6.1.
Personal Injury. Each
representative and any other persons visiting any CNS Internet Data Center does
so at his/her/its own risk and CNS assumes no liability whatsoever for any harm
to such persons resulting from any cause other than CNS' gross negligence or
willful misconduct.
6.2.
Damage to Customer Equipment or Business.
CNS shall not be liable for any damage
to, or loss relating to, Customer's business resulting from any cause
whatsoever. CNS shall not be liable for
any damage to, or loss of, any Customer Equipment resulting from any cause other
than CNS' gross negligence or willful misconduct. To the extent CNS is liable
for any damage to, or loss of, the Customer Equipment for any reason, such
liability will be limited solely to the then-current value of the Customer
Equipment.
6.3.
Exclusions. Except as
specified in Sections 6.1 and 6.2, in no event will CNS be liable to Customer,
or any of its employees, contractors, customers, agents or representatives, or
any other third party for any claims arising out of or related to this
Agreement, Customer Equipment, Customer's business or otherwise, and any lost
revenue, lost profits, replacement goods, loss of technology, goods or services,
incidental, punitive, indirect or consequential damages, loss of data, or
interruption or loss of use of service or of any Customer Equipment or
Customer's business, even if advised of the possibility of such damages, whether
under theory of contract, tort (including negligence), strict liability or
otherwise.
6.4.
Maximum Liability. Notwithstanding
anything to the contrary in this Agreement, CNS' maximum aggregate liability to
Customer related to or in connection with this Agreement will be limited to the
total amount paid by Customer to CNS hereunder for the prior twelve (12) month
period.
6.5.
Basis of the Bargain; Failure of Essential Purposes.
Customer acknowledges that CNS has set its prices and entered into this
Agreement in reliance upon the limitations of liability and the disclaimers of
warranties and damages set forth herein, and that the same form an essential
basis of the bargain between the parties. The parties agree that the limitations
and exclusions of liability and disclaimers specified in this Agreement will
survive and apply even if found to have failed of their essential purposes.
7.
Insurance. Each
party shall carry and maintain during any Term of this Agreement at its own cost
and expense, commercial general liability insurance with limits as follows:
$1,000,000 per occurrence and $2,000,000 aggregate.
Customer’s policies shall also contain the following: (a) a provision
that the insurance policy, and the coverage that it provides, shall be primary
and noncontributing with respect to any policies carried by CNS; (b) a provision
or endorsement denying the insurer any rights of subrogation against CNS, and
(c) a provision listing CNS as an additional insured.
Notwithstanding anything herein contained to the contrary, Customer
waives any rights of subrogation or recovery against CNS for damage or loss to
its property due to hazards covered or which should be covered by policies of
insurance obtained or which should be or have been obtained by Customer pursuant
to this Agreement. Customer also
waives any rights to subrogation or recovery against CNS of any deductible.
CNS shall not obligated to collect, receive or maintain current
documentation evidencing Customer’s insurance coverage required under this
Agreement, and CNS’ choice not to collect, receive or maintain such
documentation shall in no way affect Customer’s obligations hereunder or CNS’
rights.
8.
INDEMNIFICATION.
8.1.
Indemnification by CNS. CNS
will indemnify, defend and hold Customer harmless from and against any and all
costs, liabilities, losses, and expenses (including, but not limited to,
reasonable attorneys' fees) (collectively, "Losses") resulting from any
claim, suit, action, or proceeding (each, an "Action") brought against
Customer alleging (i) the infringement of any third party registered U.S.
copyright or issued U.S. patent resulting from the provision of Online Services
pursuant to this Agreement (but excluding any infringement contributory caused
by Customer's business or Customer Equipment) and (ii) personal injury to
Customer's employees, contractors, customers, vendors, representatives or other
third parties from CNS' gross negligence or willful misconduct.
8.2.
Indemnification by Customer. Customer
will indemnify, defend and hold CNS, its affiliates and customers harmless from
and against any and all Losses resulting from or arising out of any Action
brought by or against CNS, its affiliates or customers alleging: (a) with
respect to the Customer's business: (i) infringement or misappropriation of any
intellectual property rights of CNS or others; (ii) defamation, libel, slander,
obscenity, pornography, or violation of the rights of privacy or publicity, or
(iii) spamming, or any other offensive, harassing or illegal conduct or
violation of the Rules and Regulations; (b) any damage or destruction to the
Customer Area, the Internet Data Centers or the equipment of CNS or any other
customer by Customer, its employees, contractors, vendors, representatives or
other third parties; or (c) any other damage arising from the Customer Equipment
or Customer's business.
8.3.
Notice; Procedure. A party seeking indemnification (“Indemnified
Party”) under this Section 8 shall provide the other party (“Indemnifying
Party”) with written notice and demand for indemnity providing sufficient
detail so as to provide the Indemnifying Party with a reasonable opportunity to
review the Action. Indemnifying
Party shall provide a written response to the Indemnified Party’s demand for
indemnity within ten (10) calendar days from the date on which notice was
provided. Indemnifying Party shall
provide the Indemnified Party with sufficient funds to retain counsel and keep
current with all payments to joint counsel, if appropriate, or independent
counsel at Indemnified Party’s sole and absolute discretion regardless of
whether Indemnifying Party disputes Indemnified Party’s right to indemnity.
Disputes as to the right of indemnity shall be heard at the conclusion of the
underlying action or actions.
9.
TERM AND TERMINATION.
9.1.
Term. The “Term” of this Agreement
shall commence on the Effective Date and continue until terminated as set forth
below. Each Service Order Form shall
identify a “Service Term” that is applicable solely to the Services
provided under that Service Order.
9.2.
Renewal. Each Service Term
shall automatically renew for an additional term equal to the length of the
initial Service Term effective as of the date that the prior Service Term
expires (“Renewal Date”) unless the applicable Service Order or this
Agreement is terminated in no later than ten (10) days prior to the date of the
Renewal Date.
9.3.
Termination by Customer for Convenience.
Customer may terminate this
Agreement at any time for convenience only by selecting 'request cancelation' in
the Customer’s online control panel on the subscription details page.
Customer agrees and acknowledges that the above is the only form of cancellation
that CNS honors. CNS will not honor
cancellation requests made verbally, by electronic mail, or by support ticket as
CNS is unable to verify those requests. To
safeguard terminating the wrong Service Order or terminating a Service Order at
the incorrect time, CNS’ staff is prohibited from canceling Service Orders on
behalf of Customers. If Customer
requires assistance with terminating a Service Order, Customer may contact CNS
for assistance logging in and terminating the desired Service Order.
In order to avoid fees for the next
applicable renewal Term, all cancellations must be entered prior to the Renewal
Date. Customer agrees and acknowledges
that CNS does not maintain an 'intra-ISP' notification system; therefore,
transferring services to another provider or stopping use of the Online Services
will not terminate the Service Order and continue to accrue fees. Customer
agrees and acknowledges that no refunds are due to Customer upon termination of
a Service Order or this Agreement or for Customer’s failure to properly
terminate a Service Order in accordance with this Section and waives all rights
to chargeback fees for neglecting to follow the terms of this Section.
9.4.
Termination by Either Party for Cause.
Either party may terminate this Agreement in the event that:
(i) the other party breaches any material
term or condition of this Agreement and fails to cure such breach within thirty
(30) days after receipt of written notice of the same, except in the case of
Customer’s failure to pay fees, which must be cured within five (5) days after
receipt of written notice from CNS; (ii) the other party becomes the subject of
a voluntary petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership, liquidation or compensation for the benefit of
creditors; or (iii) the other party becomes the subject of an involuntary
proceeding relating to insolvency, receivership, liquidation or composition for
the benefit of creditors, if such petition proceeding is not dismissed within
(60) days of filing. In addition to
the above, Customer shall have the right to terminate this Agreement and any
applicable Service Order if, in any single calendar month, Customer has
accumulated a total of seven (7) hours of Downtime (“Chronic Problems”).
In the event Customer desires to exercise its right to terminate this
Agreement or the applicable Service Order due to Chronic Problems, Customer
shall notify CNS within five (5) days following the end of such calendar month.
Termination for Chronic Problems shall be
effective thirty (30) days after receipt of notice by CNS and, notwithstanding
anything set forth above, Customer shall be entitled to a refund of any fees
paid in advance for Online Services beyond the effective date of the termination
for Chronic Problems.
9.5.
30-Day Money-Back Guarantee.
Customer shall have the right to terminate any Service Order of the
following Online Services at any time within thirty (30) days from the
Commencement Date by notifying CNS at any time within that initial thirty (30)
day period: all Virtual Server plans; all
Virtual Trader plans; all Virtual Desktop plans; all Media Server Bundles; all
IPSEC internet access plans; all business web hosting plans; and all GateKeeper
spam filter subscriptions. Upon
receipt of Customer’s notice of termination, CNS shall refund all of fees paid
to date by Customer within thirty (30) days.
9.6.
No Liability for Termination. Neither party will be liable
to the other for any termination or expiration of this Agreement in accordance
with its terms.
9.7.
Effect of Termination. Upon the effective date of expiration
or termination of this Agreement or any Service Order:
(a) CNS will immediately cease providing
the Online Services; (b) any and all payment obligation of Customer under this
Agreement shall be due and payable immediately; (c) within thirty (30) days
after such expiration or termination, each party shall return all Confidential
Information of the other party in its possession at the time of expiration or
termination and will not make or retain any copies of such Confidential
Information except as required to comply with any applicable legal or accounting
record keeping requirement.
9.8.
Customer Equipment as Security. As of Effective Date,
Customer grants to CNS a security interest in the Customer Equipment.
In the event that Customer fails to pay CNS all amounts owed to CNS under
this Agreement when due, upon written notice, CNS may take possession of any
Customer Equipment by removing it from Customer’s Area at Customer's expense.
The fair market value of the Customer Equipment shall be applied against
the amounts due to CNS in full or partial satisfaction of those amounts due.
10.
DATA SECURITY.
Notwithstanding any of the Online Services provided under this Agreement
or any Service Order, Customer is responsible for its data and, except as
otherwise expressly agreed in one or more Service Orders, for the backup
thereof. CNS shall not be liable to
Customer for hacking or similar malicious activity by any third party.
11.
NON-SOLICITATION.
Customer agrees that during the Term of this Agreement, and for a period of one
(1) year after the date of expiration or termination of this Agreement, it will
not hire any employee of the other party who was involved with the provision of
the Online Services under this Agreement or any Service Order.
In the event that a party elects to hire an employee away from CNS,
within such timeframe, Customer agrees to pay the other party a pecuniary amount
equal to one (1) year of the employee’s annual salary earned during the
preceding year. The restrictions
contained in this Section regarding non-solicitation of employees will not apply
in the case of an employee who responds (without specific solicitation) to a
general solicitation through newspapers or other publications of general
circulation, placement agencies or similar means.
12.
No Lease.
Customer agrees and acknowledges that this Agreement is a services agreement and
is not intended to and will not commence a lease of any real or personal
property. Customer neither has a leasehold estate in the Customer Area nor any
rights as a tenant or otherwise under any real property or landlord/tenant laws,
regulations, or ordinances.
13.
Publicity and Marketing. Customer agrees that CNS may refer to Customer by
trade name and trademark, and may briefly describe Customer's Business in CNS'
marketing materials and website.
Customer hereby grants CNS a perpetual, royalty-free license to use any Customer
trade names and trademarks solely in connection with the rights granted in CNS
pursuant to this Section 13.
14.
Government Regulations. Customer
will not export, re-export, transfer, or make available, whether directly or
indirectly, any regulated item or information to anyone outside the United
States in connection with this Agreement without first complying with all export
control laws and regulations which may be imposed by the United State Government
and/or any country or organization of nations within whose jurisdiction Customer
operates or does business.
15.
GENERAL TERMS AND CONDITIONS.
15.1.
Force Majeure. A “Force
Majeure Event” means any act or event, whether foreseen or unforeseen that
prevents a party (the “Nonperforming Party”), in whole or in part, from
performing its obligations or satisfying any conditions to the Nonperforming
Party’s obligations under this Agreement or any Service Order, and is beyond the
reasonable control or and not the fault of the Nonperforming Party, and the
Nonperforming Party has been unable to avoid or overcome by exercise of due
diligence. In furtherance of the
definition of a Force Majeure Event and not in limitation of that definition,
each of the following acts or events is deemed to meet the requirements of this
subsection and to be a Force Majeure Event:
war, flood, lightning, drought, earthquake, fire, volcanic eruption,
landslide, hurricane, cyclone, typhoon, tornado, explosion, civil disturbance,
act of God or the public enemy, terrorist act, military action, epidemic, famine
or plague, shipwreck, action of a court or public authority, or strike,
work-to-rule action, go-slow, or similar labor difficulty, each on an
industry-wide, region-wide or nationwide basis.
The Nonperforming Party shall not be liable for any loss or delay
resulting from any Force Majeure Event and any payment or delivery date shall be
extended to the extent of any such delay resulting from the Force Majeure Event.
15.2. Binding
on Successors and Assigns. The
provisions of this Agreement and each Service Order shall be binding upon and
inure to the benefit of each of the parties and their respective successors and
assigns. Nothing expressed or implied in this Agreement is intended, or shall be
construed, to confer upon or give any person, partnership, or corporation, other
than the parties, their successors and assigns, any benefits, or rights under or
by reason of this Agreement or any Service Order, except to the extent of any
contrary provision herein contained.
15.3.
Relationship of Parties. This
Agreement shall not create an employer-employee relationship, a partnership,
joint venture or other agency relationship between the parties.
CNS and Customer are independent entities contracting for the Online
Services specified under this Agreement and the attached Service Orders.
All personnel used by CNS to perform the Services required under this
Agreement shall be deemed the employees, agents or independent contractors of
CNS only. CNS shall be solely
responsible for compliance with all tax, insurance and labor laws applicable to
those workers. Neither party shall
have the right, power or authority to create any contract or obligation, or make
any commitments, express or implied, on behalf of, in the name of or binding
upon the other party.
15.4.
Assignment. This Agreement and
the rights and obligations hereunder shall not be assigned or otherwise
transferred by either party without the prior written consent of the other
party. Notwithstanding the
foregoing, either party may transfer or assign this Agreement in connection with
a bona fide sale of all or substantially all of its assets to an independent
third party.
15.5. Notices.
Any notice required to be given hereunder shall be in writing and shall be
deemed to have been sufficiently given: (i) when delivered in person, (ii) on
the next business day after mailing by overnight courier service or, where
overnight courier service is unavailable, by other expedited delivery provided
by a recognized express courier, or (iii) when delivered via facsimile, with
receipt electronically confirmed; provided the original is delivered via one of
the preceding methods on or prior to the fifth business day after transmission
of the facsimile to the
addresses specified below.
Each notice shall specify the name and date of and the parties to this
Agreement. To be effective, notice
shall be sent to the parties at the
If to CNS:
Commercial Network Services
Attn:
Barry Bahrami, CEO
4876 Santa Monica Avenue, #111
San Diego, CA 92107
Fax: (619) 523 - 3962
With a courtesy copy, which shall not constitute notice, to:
Matthew W. Deen, Esq.
Deen Law
945 4th Avenue, Suite 401
San Diego, CA 92101
Phone: (619) 993-8873
Fax: (619) 400-4952
If to Customer:
As set forth on the Service Order Form and as updated from time to
time in accordance with Section 3.4 of this Agreement.
15.6. Waiver.
The parties may not amend or waive any provision of this Agreement or any
Service Order, except pursuant to a writing executed by the party or parties
against whom any amendment or waiver is sought to be enforced.
No failure or delay in exercising any right or remedy or requiring the
satisfaction of any condition, and no course of dealing between the parties,
shall operate as a waiver or estoppel of any right, remedy or condition.
A waiver made in writing on one occasion is effective only in that
instance and only for that purpose that it is given and is not to be construed
as a waiver on any future occasion or against any other person.
To the extent any course of dealing, act, omission, failure, or delay in
exercising any right or remedy under this Agreement or any Service Order
constitutes an election of an inconsistent right or remedy, that election does
not constitute a waiver of any right or remedy, or limit or prevent the
subsequent enforcement of any contract provision.
No single or partial exercise of any right or remedy under this Agreement
or any Service Order precludes the simultaneous or subsequent exercise of any
other right or remedy. The rights
and remedies of the parties set forth in this Agreement or any Service Order are
not exclusive of, but are cumulative to, any rights or remedies now or
subsequently existing at law, in equity, or by statute.
15.7.
Severability. If any provision
of this Agreement or any Service Order is determined to be invalid, illegal or
unenforceable, the remaining provisions shall remain in full force and effect,
if the essential terms and conditions of this Agreement for both parties remain
valid, legal and enforceable. Either
party shall have the right to declare a particular provision as being essential.
If any essential provision is held invalid, illegal or unenforceable, the
parties shall negotiate in good faith to modify this Agreement or the applicable
Service Order to fulfill, as closely as possible, the original intents and
purposes of this Agreement or the applicable Service Order.
15.8. Governing
Law/Venue. This Agreement, any
Service Orders, including, but not limited to, their validity, interpretation,
construction, performance and enforcement, shall be construed in accordance with
and governed by the laws of the State of California (without giving effect to
its conflicts of law principles or the United Nations Convention on the
International Sale of Goods).
Any dispute relating to the
terms, interpretation or performance of this Agreement (other than claims for
preliminary injunctive relief or other pre-judgment remedies) shall be resolved
through binding arbitration at the request of either party. Arbitration shall be
conducted in San Diego County, California, under the rules and procedures of the
International Centre for Dispute Resolution, a division of the American
Arbitration Association. The parties agrees to appoint a single arbitrator
possessing knowledge of online services agreements in the international context
or have one appointed if they cannot agree on a single arbitrator.
Each party consents to the exclusive jurisdiction of organization for the
purpose of all legal actions and proceedings arising out of or relating to this
Agreement, the Service Orders, or the transactions they contemplate.
Each party agrees that the exclusive choice of forum set forth in this
Section does not prohibit the enforcement of any judgment obtain in that forum
or any other appropriate forum. Each
party waives, to the fullest extent permitted by law, any objection which it may
now or later have to the venue agreed upon herein, and any claim that any action
or proceeding brought in any such court has been brought in an inconvenient
forum.
15.9.
Merger/Integration. This
Agreement and any Service Orders entered into in connection with this Agreement
contain the entire agreement between the parties and represent the complete and
exclusive expression of the parties’ agreement on the matters between the
parties. All prior and
contemporaneous negotiations and agreement between the parties on matters
contained in this Agreement are expressly merged into and superseded by this
Agreement. The provisions of this
Agreement and/or any Service Order may not be explained, supplemented, or
qualified through evidence of trade usage or prior course of dealings.
In entering into this Agreement, neither party has relied upon any
statement, representation, warranty, or agreement of the other party except for
those expressly contained in this Agreement or a Service Order.
There are no conditions precedent to the effectiveness of this Agreement
other than those expressly stated herein.
If a provision of this Agreement conflicts with a Service Order, the most
recently executed Service Order shall control.
15.10.
Execution/Counterparts. This
Agreement as well as any Service Order may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document.
The parties additionally acknowledge and agree that this Agreement and
any Service Order may be executed and delivered by facsimile, email or
electronically. At such times as
each of the parties has a facsimile, email or electronic copy of this Agreement
and/or any Service Order, and/or counterparts thereof, containing the signatures
of all of the parties, this Agreement and/or the applicable Service Order shall
be treated as having been fully executed and delivered for all purposes.
15.11.
Attorneys’ Fees. Should it be
necessary to institute any action to enforce the terms of this Agreement or any
Service Order, the parties hereby agree that the prevailing party in any such
action shall be entitled to recover its reasonable attorneys’ fees, as well as
all costs of the action, including, but not limited to court or arbitration
tribunal costs, filing fees, exhibit fees, forensic consultant fees, litigation
support costs and expert witness fees. Further, recoverable attorney fees and
costs shall include the costs for such items for any appeals.
This paragraph shall remain independent from any judgment entered to
enforce its terms, shall not merge therewith, and shall entitle the prevailing
party to attorneys’ fees and costs incurred in connection with post judgment
collection and enforcement efforts.
15.12.
Representation of Understanding.
All parties to this Agreement acknowledge and agree that the terms of this
Agreement are contractual and not mere recital, and all parties represent and
warrant that they have carefully read this Agreement, have fully reviewed its
provisions with their attorneys, know and understand its contents and sign the
same as their own free acts and deeds.
It is understood and agreed by all parties and signatories to this
Agreement that execution of this Agreement may affect rights and liabilities of
substantial extent and degree and with the full understanding of that fact, they
represent that the covenants provided for in this Agreement are in their
respective best interests.
EXHIBIT “A”
CUSTOMER EQUIPMENT LIST
EXHIBIT “B”
ACCEPTABLE USE POLICY
Updated: October 18, 2012
Acceptable Use Policy
As a provider of Internet access, web site
hosting, and other Internet-related services, CNS offers its customers (also
known as subscribers), and their customers and users, the means to acquire and
disseminate a wealth of public, private, commercial, and non-commercial
information. CNS has developed this Acceptable Use Policy ("AUP"), which
supplements and explains certain terms of each customer's respective service
agreements with CNS and sets forth certain customer rights and obligations which
govern the use of CNS' services.
CNS cannot monitor, verify, warrant, or vouch for the accuracy and quality of
the information that subscribers may acquire through the internet. Subscribers
must exercise their best judgment in relying on information obtained from the
internet, and also should be aware that some material posted to the internet is
sexually explicit or otherwise offensive. Because CNS cannot monitor or censor
the internet and will not attempt to do so, CNS cannot accept any responsibility
for injury to its subscribers that results from inaccurate, unsuitable,
offensive, or illegal internet communications.
Because the internet is
neither more nor less secure than other means of communication, including mail,
facsimile, and voice telephone service, all of which can be intercepted and
otherwise compromised, CNS recommends that its subscribers assume that all of
their on-line communications are not secure. CNS assumes no responsibility for
the security of information transmitted over through CNS' facilities.
CNS will not intentionally monitor private electronic mail
messages sent or received by its subscribers unless required to do so by law,
governmental authority, or when public safety is at stake. CNS may, however,
monitor its service electronically to determine that its facilities are
operating satisfactorily. Also, CNS may disclose information, including but not
limited to, information concerning a subscriber, a transmission made using CNS'
network, or a web site, in order to comply with a court order, subpoena,
summons, discovery request, warrant, statute, regulation, or governmental
request. CNS may disclose subscriber information or information transmitted over
its network where necessary to protect CNS and others from harm, or where such
disclosure is necessary to the proper operation of the system.
The following are prohibited activities and if a subscriber, its
customers, affiliates or subsidiaries engage in any of them, then such action
will be a violation of this AUP and the subscriber will be in breach of its
service agreement with CNS:
Spamming: Sending
unsolicited commercial electronic mail ("Spam") using the Online
Services. While CNS will always employ good faith when determining if any
message is Spam, the determination of 'Spam' rests entirely with CNS, regardless
of any 'opt-in' status or any other claim made by Customer. CNS may
terminate Online Services without notice in the event a determination is made
that Customer is transmitting unsolicited commercial electronic mail through the
Online Services. CNS may contact email addresses located within Customer's
ONLINE SERVICE in order to notify them of Customer's activities and reduce the
risk of fraud or other abuse by Customer.
Intellectual Property Violations:
Engaging in any activity that infringes or misappropriates the intellectual
property rights of others, including copyrights, trademarks, service marks,
trade secrets, software piracy, and patents held by individuals, corporations,
or other entities. Also engaging in activity that violates privacy, publicity,
or other personal rights of others. CNS is required by law to remove or block
access to customer content upon receipt of a proper notice of copyright
infringement. CNS reserves the right to terminate the privileges of customers
who commit repeat violations of copyright laws.
Obscene Speech or Materials: Using CNS'
network to advertise, transmit, store, post, display, or otherwise make
available child pornography or obscene speech or material. CNS is required by
law to notify law enforcement agencies when it becomes aware of the presence of
child pornography on or being transmitted through CNS' network.
Defamatory or Abusive Language: Using
CNS' network as a means to transmit or post defamatory, harassing, abusive, or
threatening language.
Forging of Headers: Forging or
misrepresenting message headers, whether in whole or in part, to mask the
originator of the message.
Illegal or Unauthorized access to Other
Computers or Networks: Accessing illegally or without authorization
computers, accounts, or networks belonging to another party, or attempting to
penetrate security measures of another individual's system (often known as
"hacking"). Also, any activity that might be used as a precursor to an attempted
system penetration (i.e., port scan, stealth scan, or other information
gathering activity).
Distribution of Internet Viruses, Worms,
Trojan Horses, or Other Destructive Activities: Distributing information
regarding the creation of an sending internet viruses, worms, Trojan Horses,
pining, flooding, mailbombing or denial of service attacks. Also, activities
that disrupt the use of or interfere with the ability of others to effectively
use the network or any connected network, system, service, or equipment.
Facilitating a Violation of this AUP:
Advertising, transmitting, or otherwise making available any software, program,
product, or service that is designed to violate this AUP, which includes the
facilitation of means to spam, initiation of pinging, flooding, mailbombing,
denial of service attacks, piracy of software.
Export Control Violations: Exporting
encryption software over the internet or otherwise, to points outside the United
States.
Usenet
Groups: Posting to newsgroups with content that violates this AUP. CNS
reserves the right not to accept such postings when it has actual knowledge that
the content violates this AUP.
Mass Filing Sharing Software: Operating
any file sharing, mass mail or IRC (Internet Relay Chat) software in any CNS
service, including, but is not limited to, bitTorrent, eMule, Limewire, mIRC,
etc. Customer agrees that these services degrade the quality of service to
all subscribers and CNS may immediately and without notice terminate any service
which has been identified as running file sharing or IRC software.
Customer acknowledges that CNS operates automated robots to detect prohibited
software and will immediately terminate a subscription identified as running
prohibited software.
Other
Software:
Operating any software which degrades
the quality of the Internet to the entire Internet community, including, but is
not limited to, any type of spam software (regardless if email is involved or
not). The decision determining which software degrades the quality of the
Internet to the entire Internet community shall be rendered at CNS's sole
discretion. (Please ask CNS if you have any questions about the software
you wish to operate before operating the software).
Other Illegal Activities: Engaging in activities that are determined to be
illegal, including advertising, transmitting, or otherwise making available
ponzi schemes, pyramid schemes, fraudulently charging credit cards, and pirating
software.
Other Activities: Engaging in
activities, whether lawful or unlawful, that CNS determines to be harmful to its
subscribers, operations, reputation, goodwill or customer relations.
When CNS becomes aware of any of the described
prohibited activities or activities that violate any law, it may take any action
to stop such activity, including, but not limited to, removing information,
shutting down a web site, implementing screening software designed to block
offending transmissions, denying access to the internet, or take any other
action it deems appropriate.
Because many of CNS' subscribers are
themselves providers of internet services to their own customers, CNS reserves
the right to take action, as discussed herein, directly against such customers
to address their unauthorized or unlawful activities, and to take action against
the subscribers for their customers' unauthorized or unlawful activities.
Subscribers shall cooperate with CNS in any corrective or preventative action
that CNS deems necessary.