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.
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 126.96.36.199 below, credit Customer's account as described below:
188.8.131.52. 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.
184.108.40.206. 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.
220.127.116.11.1. 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.
18.104.22.168.2. 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.
22.214.171.124.3. 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.
126.96.36.199. 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.
188.8.131.52. 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.
184.108.40.206. 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.
220.127.116.11. “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.
8.1. 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.
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.
CUSTOMER EQUIPMENT LIST
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.