This Agreement ("Agreement") is between WEBMASTERS.COM, its parent company,
NetTuner Corporation, a Florida corporation ("WEBMASTERS.COM") headquartered at
4465 W. Gandy Blvd., Suite 801, Tampa, FL 33611, collectively referred to herein
as "we, us, our", and the party specified in the order form annexed hereto and
incorporated herein by reference "Order". Such party shall be referred to herein
as "Customer" and shall enter into this Agreement by clicking on the Submit
button of the Order.
For good and valuable consideration, the parties agree as follows:
Subject to the terms and conditions of this Agreement, WEBMASTERS.COM will provide to Customer Internet facilities consisting of some or all of: connectivity, hardware management, software management, web hosting, web design, website promotion, and/or related services described in the plan selected by Customer from WEBMASTERS.COM's then published list of services offered from time to time ("Services"). The specific plan of Services to be provided initially to Customer shall be as selected in the Order and thereafter as established through correspondence between Customer and WEBMASTERS.COM.
WEBMASTERS.COM will provide to Customer technical support ("Standard
Support") associated with normal operation of Customer's website. Standard
Support shall include only diagnosis and repair of any malfunction of standard
network, equipment, and web server hardware or software ("Standard Issues")
provided with Customer's plan of Services. No support shall be provided for any
issue not directly related to any Standard Issues described above,
including but not limited to issues related to web design, third party software
configuration or troubleshooting, and training. Support shall only be provided
to a single designated contact person for Customer, as listed in our official
record for Customer's account, and no support will be provided to anyone else
contacting us on Customer's behalf. Customer may request additional support for
items not covered by Standard Support, which would be billed at a specified
hourly rate determined solely by WEBMASTERS.COM.
The initial term of this Agreement shall be as stated in the Order ("Initial Term"). The Initial Term shall begin upon commencement of Service to Customer, provided, however, no Service shall commence unless and until WEBMASTERS.COM receives and accepts a completed Order from Customer, plus payment in full for Services to be rendered during the Initial Term and any setup charges. WEBMASTERS.COM reserves the right to reject any submitted Order for any or no reason prior to written acceptance thereof by WEBMASTERS.COM. After the Initial Term, unless otherwise agreed to by the parties, this Agreement shall automatically renew for successive terms of equal length as the Initial Term unless terminated or canceled by either party only as provided in Paragraph 9 below. The Initial Term plus all successive renewal periods during which Service is provided shall be collectively referred to as the "Term".
4. FEES AND PAYMENT
All fees for Services rendered or provided to Customer shall be in accordance with WEBMASTERS.COM's fee schedule published at http://www.webmasters.com/web_hosting.htm. Fees for renewal periods after the Initial Term shall be due and owing immediately upon the first day of such renewal period. Customer will receive an invoice for the charges for the basic Services rendered or provided by WEBMASTERS.COM for such renewal period, plus any additional Services rendered or provided by WEBMASTERS.COM to Customer for the preceding month of the Term, and any other charges or fees then due hereunder. Payment in full of such invoiced amount is due upon receipt of the invoice. Should payment in full of any invoice not be received by WEBMASTERS.COM within ten (10) days after date of invoice, WEBMASTERS.COM may impose a debt service charge equal to one and one-half percent (1.5%) of the overdue balance (or such lesser amount as may be required by law) for each month or fraction thereof the overdue amount remains unpaid. In addition, in the event that any amount due WEBMASTERS.COM remains unpaid ten (10) days after presentation of an invoice to Customer, WEBMASTERS.COM, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services. Suspension of service does not necessarily imply termination of this Agreement and service charges will continue to accrue as if no suspension had occurred. Reinstatement of service will require a $50 reinstatement fee. All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of WEBMASTERS.COM) shall be paid by Customer. Checks returned unpaid (NSF) will be assessed a $20 charge. All payments are in U.S. currency.
5. CONTENT AND CUSTOMER'S RESPONSIBILITY
WEBMASTERS.COM will exercise no control whatsoever over, nor have any responsibility or liability whatsoever for, the content of the information passing through its network. WEBMASTERS.COM shall make no effort to validate any information passing through its network for content, correctness, usability or for any other reason. Furthermore, WEBMASTERS.COM shall not be held responsible for maintaining backups of customer's data in the event of loss or corruption, and customer accepts sole responsibility for maintaining any such backups.
6. NO WARRANTY
Customer agrees to use WEBMASTERS.COM's Services, and any information obtained through or from WEBMASTERS.COM, at Customer's own risk. Customer acknowledges and understands that neither WEBMASTERS.COM, nor any of its employees, representatives, agents or the like, warrant that the Services offered or provided hereunder will not be interrupted or be error free, nor do they make any warranty or representation as to the results that may be obtained from the use of the Service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Service, unless otherwise expressly stated in this Agreement. WEBMASTERS.COM specifically disclaims all warranties of any kind, including, without limitation, the warranty of merchantability and fitness for a particular purpose, whether expressed or implied, for the Service it is offering or providing hereunder.
7. PROHIBITED USES
Customer shall not use WEBMASTERS.COMīs Services in violation of WEBMASTERS.COM's "Service Usage Policy" provided herewith.
8. LIMITED LIABILITY
Under no circumstances, including negligence, shall WEBMASTERS.COM, its officers, agents or anyone else involved in creating, producing or distributing the Service hereunder be liable to Customer or any third party, for any claims, causes of action or direct, indirect, incidental, special, or consequential, trebled, or punitive damages, that result or have alleged to have resulted from the use of or inability to use the Service; or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to WEBMASTERS.COM's records, programs or services. WEBMASTERS.COM further shall have no responsibility whatsoever to Customer or any third party for the accuracy or quality of information obtained through or in connection with its Services provided hereunder. THE FEES FOR THE SERVICES SET BY WEBMASTERS.COM UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK, therefore, notwithstanding the above, Customer's exclusive remedies for all damages, losses, costs or causes of actions from any and all claims, whether in contract, quasi-contract, statutory, tort including negligence, or otherwise, shall not exceed the aggregate dollar amount which Customer paid during the twelve (12) months immediately preceding the claim or the term of this Agreement, whichever is less.
Customer shall defend, indemnify, save and hold WEBMASTERS.COM harmless from any and all damages, demands, liabilities, losses, costs and claims, including, without limitation, reasonable attorneys' fees, compensatory damages, punitive damages, trebled damages, and statutory damages (hereinafter "Liabilities") asserted against WEBMASTERS.COM, its agents, its customers, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed by Customer, its agents, employees or assigns or any product distributed, offered or sold by Customer, its agents, employees or assigns.
10. TERMINATION AND CANCELLATION
This Agreement may be terminated: (i) by the customer at any time, without cause; (ii) by WEBMASTERS.COM, without cause, by giving the other party 30 days prior notice; (iii) by WEBMASTERS.COM, at any time, upon 20 days' prior notice if in the sole judgment of WEBMASTERS.COM, Customer breaches any material provision of this Agreement and has not cured same by the end of the 20 days; (iv) by WEBMASTERS.COM at any time in the event of nonpayment by Customer as provided in Paragraph 3 above; and (v) by WEBMASTERS.COM, at any time, without notice, if, in WEBMASTERS.COM's sole judgment, Customer is in violation of any terms or conditions of WEBMASTERS.COM's Service Usage Policy. In the event Customer's account is terminated for cause, all files and data belonging to Customer will be permanently deleted upon termination without the possibility of recovery. If a customer voluntarily terminates his/her account, WEBMASTERS.COM agrees to reimburse that customer the unused portion of the pre-paid annual hosting fee within 30 days of the initial valid cancellation notice. A cancellation notice shall only be deemed valid if it was made by completing our Cancellation Form at https://secure.webmasters.com/forms/cancel.php. Customers residing outside of the U.S. shall only have their refund applied to the original credit card that was used to set up their account, and no refund shall be provided in the event the original account was not opened with a credit card, or the original credit card is no longer valid or accessible. If a customer's account is terminated for cause, refund will be issued at the sole discretion of WEBMASTERS.COM. WEBMASTERS.COM reserves the right to modify its refund policy at any time in accordance with current market conditions.
In the event a customer disputes our charge with their bank or credit card company for any reason resulting in a chargeback to us, we shall immediately delete the customer's account along with all web pages and email messages without notice. All future accounts requested by the customer will require a signed credit card authorization form prior to any new account being opened.
12. OWNERSHIP DISPUTES
In the event the ownership of any hosting account becomes disputed, we will recognize the person or entity whose name is listed on the credit card making the original purchase of the account. If that entity is not a natural person, such as a corporation or partnership, the official registered agent for that entity, as verified by proper documentation which will be accepted at our discretion, shall be recognized as the rightful account holder. If that person has become deceased, incapacitated or has willingly relinquished control of the account to another party, and that party subsequently requests an ownership change, legal supporting documents will be required and accepted at our discretion prior to any modifications being made or access being granted. Customer further agrees to hold us harmless from any liability arising from any type of ownership dispute pertaining to their account.
13. ADDITIONAL TERMS AND CONDITIONS
Customer hereby acknowledges that it has received and reviewed a copy of WEBMASTERS.COM's "Service Usage Policy" provided herewith and that the terms of the Service Usage Policy are incorporated herein by reference. WEBMASTERS.COM reserves the right to amend the Service Usage Policy from time to time and Customer shall be bound by any such amendments. Customer shall have the obligation to periodically visit http://www.webmasters.com/policy.htm to review its Service Usage Policy and to make certain Customer is in full compliance therewith. In the event of any inconsistencies between this Agreement and the Service Usage Policy, the terms of the Service Usage Policy shall govern.
14. OFFICIAL COMMUNICATION AND NOTICES
All official communication between WEBMASTERS.COM and Customer as well as notices set forth within this agreement shall be by email. Customer shall send all notices and official communication to WEBMASTERS.COM at the email address . WEBMASTERS.COM shall send all notices and official communication to Customer at the email address listed in Customer's account record. It is solely Customer's responsibility to ensure that the email address listed with WEBMASTERS.COM is accurate and up to date. In the event WEBMASTERS.COM sends a notice of cancellation, renewal invoice or any other official notice to an email address that is no longer valid for Customer, such notice shall be deemed delivered per this agreement. Evidence of successful transmission of all notices delivered by email must be retained by the delivering party.
This Agreement sets forth the entire agreement between WEBMASTERS.COM and Customer with respect to the subject matter hereof and supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any other prior writing between the parties. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless continue in full force and effect. Customer may not transfer or assign this Agreement without WEBMASTERS.COM's prior written consent. This Agreement shall be governed by the laws of the United States Of America and the State Of Florida and all claims concerning this Agreement shall be brought exclusively in the state or federal courts located in the County of Hillsborough in the State of Florida. The parties hereby consent to submit to the jurisdiction of such courts and waive any personal jurisdiction or venue defenses concerning said forum.