Domain:__________________________________
By and
between Data Synthesis and ____________________________________
In consideration of the mutual covenants herein, the parties
agree to the following, which shall apply during the term of this
agreement:
1. DEFINITIONS:
- (Plans) means proposals for offering various services to be
provided by Data Synthesis, as listed online at:
www.ictks.com/hosting.html
(Plans) does not include the
use of Data Synthesis’s trademark.
- (Customer) means an end user who is utilizing services
provided by Data Synthesis.
2. PRICES:
- All prices for Plans provided by Data Synthesis to Customers
are U.S. dollars.
- Customer shall be responsible for paying all taxes of any
nature which become due with regard to Data Synthesis services, except for
taxes on Data Synthesis’s income, irrespective of which party may be
responsible for reporting or collecting such taxes.
3. ORDER ACCEPTANCE, PAYMENT:
- All orders are subject to acceptance by Data Synthesis. An
order will be deemed accepted by Data Synthesis when written confirmation of
the order is sent to the Customer. Data Synthesis may refuse to accept any
order, or delay acceptance pending fulfillment of conditions Data Synthesis may
choose to impose. Such refusal or such conditions may not be unreasonable,
however, and Data Synthesis agrees to provide Customer with reasonable notice
via Email or fax of any intent to delay or decline the acceptance of any order.
Initial order payments must be received along with a signed hosting order and
service agreement prior to the commencement of service. By signing this
agreement or by clicking the "order now" button located at
www.ictks.com/weborder.html, customer has authorized credit
card payment for services on a quarterly or annual basis as indicated on the
order form. Data Synthesis will charge the credit card automatically on the
appropriate anniversary date. If the credit card authorization is invalid for
any reason, the customer will be notified and given three (3) days to make
other arrangements before service is disconnected. If payment is by check the
check must be received by Data Synthesis two (2) weeks prior to due date.
- Payment and Terms: Payment and Terms: Payment shall be
made in US dollars to Data Synthesis into the account designed by Data
Synthesis, or as may otherwise be agreed in writing by the parties. Payments
are due upon account activation and future renewal. Should payment in full of
any invoice not be received by Data Synthesis within (30) days after activation
for renewal, Data Synthesis 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, Data Synthesis may discontinue,
withhold, or suspend services to customer and/or its customer(s) to whom such
unpaid amounts relate.
4. DUTIES OF Data Synthesis:
Data Synthesis will acquire, on 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 Data Synthesis 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 Data Synthesis
for any reason. Any costs of Data Synthesis in obtaining or maintaining a
domain name for Customer or it’s customers shall be immediately reimbursed
to Data Synthesis upon invoice from Data Synthesis to customer.
5. RULES AND REGULATIONS:
Data Synthesis may impose reasonable rules and regulations
regarding the use of it’s services from time to time. Customers shall
impose such rules and regulations on it’s customers to the extent
necessary to ensure compliance.
6. LIMITATION OF DATA SYNTHESIS' OBLIGATIONS AND
LIABILITY:
- Data Synthesis will utilize it’s best efforts to
maintain acceptable performance of services contracted for, but Data Synthesis
makes absolutely no warranties whatsoever, express or implied, including
warranty of merchantability or fitness for a particular purpose. Data Synthesis
cannot guarantee continuous service, service at any particular time, or
integrity of data stored or transmitted via it’s system or via the
Internet. Data Synthesis will not be liable for the inadvertent disclosure of,
or corruption or erasure of data transmitted or received or stored on it’s
system. Data Synthesis shall not be liable to Customer or any of it’s
customers for any claims or damages which may be suffered by Customer or
it’s customers, including, but not limited to, losses or damages of any
and every nature, resulting from the loss or 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 Data Synthesis.
- Data Synthesis may discontinue servicing any Plan, or may
require fulfillment of conditions Data Synthesis may choose to impose as a
prerequisite for continuing to service any Plan. Unsolicited e-mail using
machines controlled by Data Synthesis or unsolicited e-mail to advertise web
pages hosted at Data Synthesis (even if messages are sent via other e-mail
providers) are unacceptable. Advertising, Marketing, or selling software
products for the purpose of spamming (even if not engaged in spamming yourself)
are reasons for discontinuation service. Such discontinuation or requirement
may not be unreasonable, however, and Data Synthesis agrees to provide customer
with reasonable notice via e-mail and fax of any such intent to discontinue or
impose conditions.
- The only warranty and/or guarantee offered by Data Synthesis
is an "unconditional 30-day money back guarantee". If within, 30 calendar days
of installation, the customer wishes his money back, it will be refunded
regardless of reason. The money back guarantee includes any monies received for
monthly hosting fees but does not and will not include any account set up fees,
web design fees, programming fees, usage fees or monies paid to the InterNic
for customer to register and maintain his private domain name. No other
warranty or guarantee is implied or exists within this agreement.
- Data Synthesis’s liability to Customer, and any end user
or any Plan or other Data Synthesis services is limited to the amount paid to
and received by Data Synthesis for services not accepted. In no event shall
Data Synthesis 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 Data Synthesis has been
advised of the possibility of such damage.
- Customer will take all necessary measures to preclude Data
Synthesis from being made a party to any lawsuit or claim regarding Data
Synthesis services provided to any Customer or end user. Customer hereby agrees
to indemnify and hold harmless Data Synthesis from any and all claims or
whatever nature brought by any of Customer’s customers against Data
Synthesis in excess of the remedy set forth in paragraph 6 (D).
7. PROPERTY RIGHTS
Data Synthesis owns all rights, title and interest in Data
Synthesis’s 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 Data Synthesis’s trade
names or service marks. The use by Customer of the other property rights
mentioned here is authorized only for the purpose of marketing and selling
Plans .
8. CONFIDENTIALITY
Customer acknowledges that by reason of it’s relationship
with Data Synthesis hereunder, it may have access to certain information and
materials relating to Data Synthesis’s business, plans, customers,
software technology, and marketing strategies that is confidential and of
substantial value to Data Synthesis, which value would be impaired if such
information were disclosed to third parties. Customer agrees that it will not
use in any way for it’s own account nor for the account of any third
party, nor disclose to any third party, any such information revealed to it by
Data Synthesis. 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 it’s possession, and all
confidential materials shall be returned to Data Synthesis 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, Data
Synthesis shall be entitled to injunctive relief, which relief shall not be
contested by Customer.
9. RELATIONSHIP OF THE PARTIES
The relationship between Data Synthesis and Customer is that of
vendor and vendee. They shall not be construed as being joint ventures,
franchiser/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 Data
Synthesis, or in any other way legally bind Data Synthesis in any fashion, nor
shall Customer be authorized to make any representations about Data Synthesis
or it’s services other than to set forth Data Synthesis’s
responsibilities as outlined in this 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) shall be subject to arbitration upon written demand of either
party. Arbitration shall take place in Wichita, Kansas, 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 arguments, and decide the matter by secret majority vote.
Unless the arbitrators decide otherwise, each party shall pay the costs of
it’s own arbitrator, and shall pay half of the other costs of the
arbitration proceedings. 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 or 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. Judgement 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. All terminations should be faxed to 316-683-7868 or you can mail
a hard copy to Data Synthesis, P.O. Box 20538, Wichita, KS 67208. The account
will 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:
- By customer, by notifying Data Synthesis in writing twenty
(20) days prior to renewal of this agreement. If notification is not received
20 days prior a refund will not be issued.
- By Data Synthesis, 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 thirty (30) days.
- Cancellation of services, set up fees, installation fees,
host system change, are non-refundable at any time. Parking fees are
non-refundable. If written notification is not within (30) days of the order
being placed, there will be no refund.
- Non-payment on renewals
- All NSF checks will not be redeposited. Another method of
payment will have to be used. A cashier check,money order, or credit card can
be used. The web site will be on hold until payment is received.
- By Data Synthesis, immediately upon giving written notice to
Customer, in the event that
- Any bank draft or check delivered by Customer to Data
Synthesis in payment of products is returned unpaid and Customer fails to
remedy such nonpayment within five business days. A $25.00 fee will be charged
to customer for returned checks.
- Customer becomes more than sixty (60) days in arrears in
payment of its account with Data Synthesis;
- 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 it’s
assets for the benefit of creditors.
- By Data Synthesis immediately, if Customer attempts to assign
all or any part of this Agreement without Data Synthesis’s prior written
approval;
- By Data Synthesis immediately, if Customer fails to cause
Data Synthesis to be informed in writing immediately on the happening of any
event specified in this section;
- By Customer, immediately upon giving written notice to Data
Synthesis, if;
- There are instituted bankruptcy or insolvency proceedings
against Data Synthesis, which are vacated within sixty (60) days from the date
of filing;
- Data Synthesis institutes voluntary bankruptcy/insolvency
proceedings, or otherwise admits insolvency;
- Data Synthesis makes an assignment of all or part of
it’s assets for the benefit of creditors; or
- Data Synthesis fails to cause Customer to be informed in
writing immediately on the happening of any event specified in this
section.
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 Data Synthesis, 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. Data Synthesis 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 Data Synthesis in
Wichita, Kansas. It is to be governed by and construed under the laws of the
State of Kansas and the United States of America. The federal and state courts
of the State of Kansas 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 Kansas (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 Data Synthesis. 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 e-mail, fax, or express mail to the
e-mail address, fax number, or address most recently provided and will be
effective upon transmission. Evidence of successful transmission shall be
retained.
16. ENTIRE AGREEMENT: MODIFICATIONS
This agreement sets forth the entire agreement and understanding
between the parties and merges all prior discussion between them. Data
Synthesis may make changes to this agreement upon thirty (30) days written
notice to customer, advising of the change and the effective date thereof.
Utilization of Data Synthesis services by Customer and/or it’s Customers
following the effective date of such change(s). Otherwise, this agreement may
not be modified except by the written consent of both parties.
