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NET GENERATIONS DESIGN CUSTOMER AGREEMENT
Domain: ( ______________________ )
By and between Net Generations Design, a California Corporation
Net Generations Design,
and
(__________________), with its place of business for the purpose
of this agreement at ( _______________ ),
United States of America ("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 Generations Design, as listed online at:
http://www.netgenerations.com/webhosting.asp
"Plans" does not include the use of Net Generations
Design's trademark.
B. "Customer" means an end user who is utilizing
services provided by Net Generations Design.
2. PRICES
A. All prices for Plans provided by Net Generations Design to
Customer are US dollars.
B. Customer shall be responsible for paying all taxes of
any nature which become due with regard to Net Generations Design
services, except for taxes on Net Generations Design's 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 Generations Design.
An order will be deemed accepted by Net Generations Design when
written confirmation of the order is sent to Customer. Net Generations
Design may refuse to accept any order, or delay acceptance pending fulfillment
of conditions Net Generations Design may choose to impose. Such
refusal or such conditions may not be unreasonable, however,
and Net Generations Design 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 Generations
Design into the account designated by Net Generations Design, or as may otherwise
be agreed in writing by the parties. Payments< are due upon account activation and
future renewal. If due to bank charges, transfer fees, or the like, Net Generations
Design should receive less than its invoice amount, Net Generations
Design will re-invoice Customer for the shortfall. Should payment
in full of any invoice (aside from such shortfalls) not be received
by Net Generations Design within thirty (30) days after activation and renewal,
Net Generations Design may impose a debt service charge amounting to one percent
(1%) 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 Generations Design may
discontinue, withhold, or suspend services to Customer and/or
its customer(s) to whom such unpaid amounts relate.
4. DUTIES OF Net Generations Design
Net Generations Design will acquire, or request an Internet Domain
Name (only from the US InterNIC) on behalf of the Customer. In
Such case the Customer hereby must waive in writing prior to
acquisition of said domain name, any and all claims which it
may have against Net Generations Design 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 Generations Design for any reason. Any costs
of Net Generations Design in obtaining or maintaining a domain
name for Customer or its customers shall be immediately reimbursed
to Net Generations Design upon invoice from Net Generations Design
Customer.
5. RULES AND REGULATIONS
Net Generations Design may impose reasonable rules and regulations
regarding the use of its services from time to time. Customer
shall impose such rules and regulations on its customers to the
extent necessary to ensure compliance.
6. LIMITATION OF Net Generations Design's OBLIGATIONS AND
LIABILITY
A. Net Generations Design will utilize its best efforts to maintain
acceptable performance of services contracted for services, but
Net Generations Design makes absolutely no warranties whatsoever,
express or implied, including warranty of merchantability or
fitness of a particular purpose. Net Generations Design cannot
guarantee continuous service, service at any particular time,
or integrity of data stored or transmitted via its system or
via the Internet. Net Generations Design will not be liable for
the inadvertent disclosure of, or corruption or erasure of, data
transmitted or received or stored on its system. Net Generations
Design shall not be liable to Customer or any of its customers
for any claims or damages which may be suffered by Customer or
its customers, 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, non-deliveries, or service
interruptions whether or not caused by the fault or negligence
of Net Generations Design.
B. Net Generations Design may discontinue servicing any Plan,
or may require fulfillment of conditions Net Generations Design
may choose to impose as a prerequisite for continuing to service
any Plan. Such discontinuation or requirement may not be unreasonable,
however, and Net Generations Design 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 Generations Design 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 Generations
Design within the 30-day period. No claim related to such accepted services
shall be raised.
D. Net Generations Design's liability to Customer, and any end
user of any Plan or other Net Generations Design services is limited
to the amount paid to and received by Net Generations Design for services not
accepted. In no event shall Net Generations Design 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 Generations Design has been advised of the possibility of such damage.
E. Customer will take all necessary measures to preclude Net Generations Design
from being made a party to any lawsuit or claim regarding Net Generations
Design services provided to any Customer or end user. Customer hereby agrees to
indemnify and hold harmless
On Call Computer Supply from any and all claims of whatever nature
brought by any of Customer's customers against Net Generations Design
in excess of the remedy set forth in paragraph 7(D).
7. RELATIONSHIP OF THE PARTIES
The relationship between Net Generations Design and Customer
is that of vendor and vendee. They shall not be construed as being joint ventures,
franchisers/franchisee, or employer/employee. This agreement
is a commercial agreement between businesses, not a consumer agreement. Customer
has no authority, apparent or otherwise, to contract
for or on behalf of Net Generations Design, on in any other way legally
bind Net Generations Design in any fashion, nor shall Customer be authorized to
make any representations about Net Generations Design or its
services other than to set forth Net Generations Design's responsibilities as
outlined in this agreement.
8. 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 money due on unpaid invoices) and other
than the injunctive relief referred to in paragraph 7 shall be
subject arbitration upon written demand of either party.
Arbitration shall take place in Los Angeles, California, 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 others 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.
9. 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 Generations Design in writing
twenty (20) days prior to renewal of this agreement.
B. By Net Generations Design, 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 Generations Design, upon sixty (60) days' written
notice, if
1. Net Generations Design 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 Generations Design, immediately upon giving written
notice to Customer, in the event that
1. Any bank draft or check delivered by Customer
to Net Generations Design in payment for Products is returned
unpaid and Customer fails to remedy such nonpayment within five
business days;
2. Customer becomes more than sixty (60) days in
arrears in payment of its account with Net Generations Design;
3. There are instituted bankruptcy or insolvency
proceedings against Customer, which are not vacated within
sixty (60) days from the date of filing;
4. Customer institutes voluntary bankruptcy or
insolvency proceedings, or otherwise admits insolvency; or
5. Customer makes an assignment of all or part of its assets for the
benefit of creditors.
E. By Net Generations Design immediately, if Customer attempts
to< assign all or any part of this Agreement without Net Generations
Design's prior written approval;
F. by Net Generations Design immediately, if Customer fails
to inform Net Generations Design in writing immediately on the happening
of any event specified in this section;
to Net Generations Design, if
1. There are instituted bankruptcy or insolvency proceedings against Net
Generations Design, which are not vacated within< sixty (60) days from the
date of filing;
2. Net Generations Design institutes voluntary bankruptcy
or insolvency proceedings, or otherwise admits insolvency.
3. Net Generations Design makes an assignment of all or part
of its assets for the benefit of creditors; or
4. Net Generations Design 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.
10. NON ASSIGNABILITY
Customer's rights and obligations under this agreement may not
be transferred or assigned directly or indirectly without the
prior written consent of Net Generations Design, which consent
shall not be unreasonably refused.
11. 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 Generations
Design and Customer agree to renegotiate in good faith and term held
invalid and to be bound by mutually agreed substitute provision.
12. APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement takes effect when accepted by Net Generations
Design in California. It is to be governed by an construed under the
laws of the State of California and the United States of America.
The federal and sate courts of the Sate of California 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 California, and (2) service
of process being effective upon it by registered mail sent to the
address set forth at the beginning of this document, as may be
changed from time to time by written notice actually received
by Net Generations Design. To the extent permissible by the law
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.
13. NOTICES
Except with respect of service of process as set forth in
paragraph 12, 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.
14. ENTIRE AGREEMENT;MODIFICATIONS
This agreement sets forth the entire agreement and
understanding between the parties and merges all prior
discussion between them. Net Generations Design may make changes
to this agreement upon thirty (30) day's written notice to Customer,
advising of the change and the effective date thereof.
Utilization of Net Generations Design services by Customer and/or
its Customers following the effective date of such change 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.
I agree to these terms and conditions::
Customer:________________________
Date: ________________________
Net Generations Design
Signature:______________________
Date: ________________________ |