NET SPECIALISTS
By and between Net Specialists Corporation ("NET SPECIALISTS"), located at
1350 Remington Road, Suite L, Schaumburg, IL, 60173
and the customer named on the above Hosting Registration order ("Customer").
In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement:
1. DEFINITIONS
A. "Plans" means proposals for offering various services to be provided by NET SPECIALISTS, as listed online at
http://www.netspecialists.com/hosting-chart.asp
"Plans" does not include the use of NET SPECIALISTS' trademarks.
B. "Customer" means an end user who is utilizing services provided by NET SPECIALISTS.
2. PRICES
A. All prices for Plans provided by NET SPECIALISTS to Customer are in US dollars.B. Customer shall be responsible for paying all taxes of any nature which become due with regard to NET SPECIALISTS services, except for taxes on NET SPECIALISTS' income, irrespective of which party may be responsible for reporting or collecting such taxes.
3. ORDER ACCEPTANCE, PAYMENT
A. All orders are subject to acceptance by NET SPECIALISTS. An order will be deemed accepted by NET SPECIALISTS when written confirmation of the order is sent to Customer, including e-mail messages confirming order acceptance and/or including confirmation that the order has been process and the service(s) in question have been installed and/or set up. NET SPECIALISTS may refuse to accept any order, or delay acceptance pending fulfillment of conditions NET SPECIALISTS may choose to impose. Such refusal or such conditions may not be unreasonable, however, and NET SPECIALISTS agrees to provide Customer with reasonable notice via Email or fax of any intent to delay or decline the acceptance of any order.B. Payment and Terms:
Payment shall be made in US dollars to NET SPECIALISTS into the account designated by NET SPECIALISTS, or as may otherwise be agreed in writing by the parties. Payment for hosting and domain registration and renewal services must be made via credit card. All hosting and domain service customers must provide NET SPECIALISTS with a signed credit card authorization form in order to use the services provided by NET SPECIALISTS. Payments are due upon account activation and future renewal. If due to bank charges, transfer fees, or the like, NET SPECIALISTS should receive less than its invoice amount, NET SPECIALISTS will re-invoice Customer for the shortfall. Should payment in full of any invoice (aside from such shortfalls) not be received by NET SPECIALISTS on activation or on the renewal date, NET SPECIALISTS may impose a commercial finance charge amounting to one and one half percent (1.5%) of the overdue balance for each month or fraction thereof the overdue amount remains unpaid. In the event that any amount remains unpaid thirty (30) days after presentation of invoice, NET SPECIALISTS may discontinue, withhold, or suspend services to Customer to whom such unpaid amounts relate. If it is suspected, through a Merchant Services or NET SPECIALISTS inquiry, that a payment received for account activation or renewal is fraudulent, NET SPECIALISTS may discontinue services immediately.Hosting and domain services are automatically renewed and billed to Customer unless Customer notifies NET SPECIALISTS in advance of billing dates that Customer wishes to discontinue service. Customer is responsible for notifying NET SPECIALISTS of any changes to payment methods, such as updated expiration dates for credit cards or new preferred billing methods, and must provide NET SPECIALISTS with updated information prior to renewal and billing dates in order to keep services current.
C. Rental starts at activation:
Our systems are managed very closely for disk space, processor and memory usage. We will make every effort to make sure that each customer gets their fair share of system resources. When each account is activated, the amount of disk space and mailbox slots ordered are set aside solely for the use of that client. Therefore, rental starts at the time of account activation. You will be billed from the activation date forward regardless of whether you use the space or not. It has been allocated to you and therefore can't be rented to anyone else.
4. DUTIES OF NET SPECIALISTS
NET SPECIALISTS will acquire, on request, an Internet Domain Name on behalf of the Customer. In doing so the Customer hereby waives, any and all claims which it may have against NET SPECIALISTS for any loss, damage, claim or expense arising out of, or in relation to, the registration of such Domain Name in any on-line or off-line network directories, membership lists or registration lists, or the release of the Domain Name from such directories or lists following the termination of services by NET SPECIALISTS for any reason. Any costs of NET SPECIALISTS in obtaining or maintaining a domain name for Customer or its customers shall be immediately reimbursed to NET SPECIALISTS upon invoice from NET SPECIALISTS to Customer.
5. RULES AND REGULATIONS
NET SPECIALISTS may impose reasonable rules and regulations regarding the use of its services from time to time. This information is posted on the Internet at:
6. LIMITATION OF NET SPECIALISTS' OBLIGATIONS AND LIABILITY
A. NET SPECIALISTS will utilize its best efforts to maintain acceptable performance of services contracted for services, but NET SPECIALISTS makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. NET SPECIALISTS cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. NET SPECIALISTS will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system. NET SPECIALISTS shall not be liable to Customer for any claims or damages which may be suffered by Customer including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, nondeliveries, or service interruptions whether or not caused by the fault or negligence of NET SPECIALISTS.B. NET SPECIALISTS may discontinue servicing any Plan, or may require fulfillment of conditions NET SPECIALISTS may choose to impose as a prerequisite for continuing to service any Plan. Such discontinuation or requirement may not be unreasonable, however, and NET SPECIALISTS agrees to provide Customer with reasonable notice via Email or fax of any such intent to discontinue or impose conditions.
C. Services provided by NET SPECIALISTS to Customer shall be deemed accepted for all purposes thirty days after activation or renewal for such services, if no written claim or objection regarding such services has been received by NET SPECIALISTS within the 30-day period. No claim related to such accepted services shall be raised.
D. NET SPECIALISTS' liability to Customer, and any end user of any Plan or other NET SPECIALISTS services is limited to the amount paid to and received by NET SPECIALISTS for services accepted. In no event shall NET SPECIALISTS be liable to Customer, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if NET SPECIALISTS has been advised of the possibility of such damage.
E. Customer will take all necessary measures to preclude NET SPECIALISTS from being made a party to any lawsuit or claim regarding NET SPECIALISTS services provided to any Customer or end user. Customer hereby agrees to indemnify and hold harmless NET SPECIALISTS from any and all claims of whatever nature brought by anyone in excess of the remedy set forth in paragraph 6(D).
7. PROPERTY RIGHTS
NET SPECIALISTS owns all right, title and interest in NET SPECIALISTS' trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of Plans and of the hardware and software systems and resources necessary to provide the individual service elements of which they consist. This agreement does not constitute a license to Customer to use NET SPECIALISTS' trade names or service marks. The use by Customer of the other property rights mentioned here is authorized only for the purpose of maintaining your web site.
8. CONFIDENTIALITY
Customer acknowledges that by reason of its relationship with NET SPECIALISTS hereunder, it may have access to certain information and materials relating to NET SPECIALISTS' business, plans, customers, software technology, and marketing strategies that is confidential and of substantial value to NET SPECIALISTS, which value would be impaired if such information were disclosed to third parties. Customer agrees that it will not use in any way for its own account nor for the account of any third party, nor disclose to any third party, any such information revealed to it by NET SPECIALISTS. Customer further agrees that it will take every reasonable precaution to protect the confidentiality of such information. In the event of termination of this agreement, there shall be no use or disclosure by the Customer of any such confidential information in its possession, and all confidential materials shall be returned to NET SPECIALISTS or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, NET SPECIALISTS shall be entitled to injunctive relief, which relief shall not be contested by Customer.
9. RELATIONSHIP OF THE PARTIES
The relationship between NET SPECIALISTS and Customer is that of vendor and customer. This agreement is a commercial agreement between businesses, not a consumer agreement.
10. DISPUTES
The parties shall attempt to resolve all disputes arising out of this agreement in a spirit of cooperation without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices) and other than the injunctive relief referred to in paragraph 10 shall be subject to arbitration upon written demand of either party. Arbitration shall take place in Schaumburg, Illinois, or at another location if the parties so agree. The arbitration shall take place before an arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a third arbitrator and determine the third arbitrator's compensation. Each party shall have one veto over the choice of the third arbitrator. The three arbitrators shall schedule an informal proceeding, hear the arguments, and decide the matter by secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and shall pay half of the other costs of the arbitration proceeding. Each party shall have the right to have the proceedings transcribed. The arbitrators shall not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration; the dissenting arbitrator, if any, shall not issue a dissenting opinion. Regarding each issue submitted to arbitration, the decision shall be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having jurisdiction thereof.
Should any legal action permissible under this agreement be instituted to enforce the terms and conditions of this agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses incurred at both the trial and appellate levels.
11. TERM, TERMINATION
This agreement shall run in accordance with the term of the initial order. It shall be automatically renewed on a regular basis in accordance with the term of the initial order or subsequent change to that term unless terminated in one of the following ways:A. By customer, by notifying NET SPECIALISTS in writing twenty (20) days prior to renewal of this agreement.
B. By NET SPECIALISTS, upon thirty (30) days' written notice, if Customer breaches any material and substantial provision of this agreement and has not cured by the end of the 30 days.
C. By NET SPECIALISTS, upon sixty (60) days' written notice, if
1. NET SPECIALISTS provides Customer with written notice of the specific reasons for its belief in this regard, and
2. Customer has not cured by the end of the 60 days.D. By NET SPECIALISTS, immediately upon giving written notice to Customer, in the event that
- Customer does not provide valid and chargeable credit card information and a signed Credit Card Authorization Form by the renewal date for any services provided by NET SPECIALSTS to Customer;
- Any bank draft or check delivered by Customer to NET SPECIALISTS in payment for Products is returned unpaid and Customer fails to remedy such nonpayment within five business days;
- Customer becomes more than thirty (30) days in arrears in payment of its account with NET SPECIALISTS;
- There are instituted bankruptcy or insolvency proceedings against Customer, which are not vacated within sixty (60) days from the date of filing;
- Customer institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency; or
- Customer makes an assignment of all or part of its assets for the benefit of creditors.
E. By NET SPECIALISTS immediately, if Customer attempts to assign all or any part of this Agreement without NET SPECIALISTS' prior written approval;
F. By NET SPECIALISTS immediately, if Customer fails to inform NET SPECIALISTS in writing immediately on the happening of any event specified in this section;
G. By Customer, immediately upon giving written notice to NET SPECIALISTS, if
1. There are instituted bankruptcy or insolvency proceedings against NET SPECIALISTS, which are not vacated within sixty (60) days from the date of filing;
2. NET SPECIALISTS institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency;
3. NET SPECIALISTS makes an assignment of all or part of its assets for the benefit of creditors; or
4. NET SPECIALISTS fails to inform Customer in writing immediately on the happening of any event specified in this section.
The provisions of paragraph survive any termination of this agreement.
12. NONASSIGNABILITY
Customer's rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of NET SPECIALISTS, which consent shall not be unreasonably refused.
13. PARTIAL INVALIDITY
If any provision of this agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. NET SPECIALISTS and Customer agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.
14. APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement takes effect when accepted by NET SPECIALISTS in Illinois. It is to be governed by and construed under the laws of the State of Illinois and the United States of America. The federal and state courts of the State of Illinois shall have exclusive jurisdiction to adjudicate any non-arbitrable dispute arising out of this agreement. Customer hereby expressly consents to (1) the jurisdiction of the courts of Illinois and (2) service of process being effective upon it by registered mail sent to the address set forth on the Domain Registration Order, as may be changed from time to time by written notice actually received by NET SPECIALISTS. To the extent permissible by the law of Customer's jurisdiction, Customer waives any requirement that service of process or of any documents be made upon it pursuant to the provisions of the Hague Convention.
15. NOTICES
Except with respect to service of process as set forth in paragraph 11, all notices may be sent by email, fax, or express mail to the email address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.
16. LIMITS
A. It is understood that our site hosting services are managed and there are limits on traffic to each site, both in terms of quantity and velocity. This management assures that all accounts receive their fair-share of bandwidth and storage, and are robust when visited. Net Specialists reserves the right to impose bandwidth, storage and bandwidth velocity limits on any accounts deemed to be using excessive bandwidth, storage or bandwidth velocity at any time. At such a time, Net Specialists will inform Customer via telephone, typed or written correspondence or e-mail that the account has been limited and request that Customer subscribe to the next higher service level Plan. Customer reserves the right to subscribe to the next higher service level Plan, to reduce the amount of storage being used by deleting files or e-mail, or to cancel the account. If the account is cancelled and the date is thirty days or less since the account was purchased, Net Specialists will provide Customer with a full refund minus bandwidth or bandwidth velocity charges. No refunds will be given for accounts cancelled after 30 days from the purchase date.
17. USE POLICY
(1) Accounts shall not be used to store or disseminate obscene or pornographic material.
(2) Accounts shall not be used for gambling or any other practice deemed illegal by the laws of the US Federal Government.
(3) Accounts shall not be used to store or disseminate material of a threatening or slanderous nature.
(4) Accounts shall not be used to host Warez type sites.(Hacking information, illegal credit card activity etc.)
(5) Accounts shall not be used for spamming. (i.e. Volumes of unsolicited email sent to others)
(6) Accounts engaging in any type of e-commerce for which credit card or other personal / financial information is requested MUST have a valid SSL (secure sockets layer) certificate installed for the domain requesting the information. No personal / financial information may be requested through e-mail, which is not secure.
(7) NET SPECIALISTS reserves the right to deactivate any account without refund if the account is in violation of the above.
(8) Customers must comply with the Net Specialists Terms of Service.
18. ENTIRE AGREEMENT; MODIFICATIONS
This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. NET SPECIALISTS may make changes to this agreement upon thirty (30) days' written notice to Customer, advising of the change and the effective date thereof. If NET SPECIALISTS is not contacted within ten (10) days regarding the change, this shall constitute acceptance by Customer of such change(s). Otherwise, this agreement may not be modified except by the of written consent of both parties.
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NET SPECIALISTS Contract v2.1e
Revised: October 22, 2007