CUSTOMER HOSTING AGREEMENT


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By and between Spectrum21 a California company, Spectrum21.com

With its place of business for the purpose of this agreement at: P.O. Box 10543 • Fullerton, CA • 92838

and agreed by:

Company Name:
 *    Domain: *
First Name:
 *   Last Name:  *  
E-Mail:
 *  
Enter plan Selection: *  

Enter E-Commerce/Store Addition: *  

Street  *, City  *, State  *, Zip  *, Country  *,
As ("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:
  1. "Plans" means proposals for offering various services to be provided by Spectrum21, as listed online at:Spectrum21.com/hosting "Plans" does not include the use of Spectrum21's trademark.
  2. "Customer" means an end user who is utilizing services provided by Spectrum21.
2. PRICES
  1. All prices for Plans provided by Spectrum21 to Customer are US dollars.
  2. Customer shall be responsible for paying all taxes of any nature which become due with regard to Spectrum21 services, except for taxes on Spectrum21's income, irrespective of which party may be responsible for reporting or collecting such taxes.
  3. Plan Selected is to be paid with order and on the same day of each month thereafter. (Please verify Plan Selected Above)
  4. This Agreement is to run for a minimum of 1 Year and ends on 1 Year after date of payment and will Continue in force OR terminate with written notice by either party with 30 days notice anytime thereafter.
3. ORDER ACCEPTANCE, PAYMENT , LATE FEES AND UN-LOCKING FEES
  1. All orders are subject to acceptance by Spectrum21. An order will be deemed accepted by Spectrum21 when written confirmation of the order is sent to Customer. Spectrum21 may refuse to accept any order, or delay acceptance pending fulfillment of conditions Spectrum21 may choose to impose. Such refusal or such conditions may not be unreasonable, however, and Spectrum21 agrees to provide Customer with reasonable notice via Email or fax of any intent to delay or decline the acceptance of any order.
  2. Payment and Terms: Payment shall be made in US dollars to Spectrum21 into the account designated by Spectrum21, or as may otherwise be agreed in writing by the parties. Payments are due upon presentation of invoice. If due to bank charges, transfer fees, or the like, Spectrum21 should receive less than its invoice amount, Spectrum21 will re-invoice Customer for the shortfall. Should payment in full of any invoice (aside from such shortfalls) not be received by Spectrum21 within thirty (30) days after presentation, Spectrum21 will impose a debt service charge amounting to one 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 forty-five (45) days after presentation of invoice, Spectrum21 may discontinue, withhold, or suspend services to Customer and/or its customer(s) to whom such unpaid amounts relate.
  3. A Late Fee of $29.00 will be access to any account not paid within 30 days of renewal date. Payments are due upon presentation of invoice. Spectrum21 has the right with proper notification to cancel the account after 60 days of renewal date of account.
  4. At the discretion of Spectrum21 your account can be locked if not paid after 60 days of renewal rather than terminated. If the account is locked then there will be an additional charge of $25.00 to un-lock the site. The site will not be un-locked unless all payments due on the site are paid to current status. The site would be eligible for cancellation at any time after the site is locked.
  5. Any account which is to be locked, suspended, terminated, or disrupted for any reason of non-payment of services will be Properly notified within 10 days of doing so by EMAIL contact to the email address on record as stated above in this Agreement.
4. DOMAINS AQUIRRED BY SPECTRUM21

Spectrum21 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 Spectrum21 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 Spectrum21 for any reason. Any costs of Spectrum21 in obtaining or maintaining a domain name for Customer or its customers shall be immediately reimbursed to Spectrum21 upon invoice from Spectrum21 to Customer.

5. RULES AND REGULATIONS

Spectrum21 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 users, agents, customers, etc. to the extent necessary to ensure compliance. These rules and regulations are posted on the Internet as our Accepted Use Policy. This document or webpage will change from time to time and will be a part of this agreement.

6. LIMITATION OF SECTRUM21's OBLIGATIONS AND LIABILITY
  1. Spectrum21 will utilize its best efforts to maintain acceptable performance of services contracted for, but Spectrum21 makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. Spectrum21 cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. Spectrum21 will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system. Spectrum21 shall not be liable to Customer or any of its users, agents, customers, etc. for any claims or damages which may be suffered by Customer or its users, agents, customers, etc., 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 Spectrum21.
  2. Spectrum21 may discontinue servicing any Plan, or may require fulfillment of conditions Spectrum21 may choose to impose as a prerequisite for continuing to service any Plan. Such discontinuation or requirement may not be unreasonable, however, and Spectrum21 agrees to provide Customer with reasonable notice via Email or fax of any such intent to discontinue or impose conditions.
  3. Services provided by Spectrum21 to Customer shall be deemed accepted for all purposes thirty days after presentation of invoice for such services, if no written claim or objection regarding such services has been received by Spectrum21. No claim related to such accepted services shall be raised thereafter.
  4. Spectrum21's liability to Customer, and any end user of any Plan or other Spectrum21 services is limited to the amount paid to and received by Spectrum21 for services not accepted. In no event shall Spectrum21 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 Spectrum21 has been advised of the possibility of such damage.
  5. Customer will take all necessary measures to preclude Spectrum21 from being made a party to any lawsuit or claim regarding Spectrum21 services provided to any Customer or end user. Customer hereby agrees to indemnify and hold harmless Spectrum21 from any and all claims of whatever nature brought by any of Customer's clients or end users against Spectrum21 in excess of the remedy set forth in paragraph 6(D) .
7. PROPERTY RIGHTS

Spectrum21 owns all right, title and interest in Spectrum21's trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of our Hosting 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 Spectrum21's trade names or service marks.

8. CONFIDENTIALITY

Customer acknowledges that by reason of its relationship with Spectrum21 hereunder, it may have access to certain information and materials relating to Spectrum21's business, plans, customers, software technology, and marketing strategies that is confidential and of substantial value to Spectrum21, 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 Spectrum21. 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 Spectrum21 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, Spectrum21 shall be entitled to injunctive relief, which relief shall not be contested by Customer.

9. RELATIONSHIP OF THE PARTIES

The relationship between Spectrum21 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 Spectrum21, or in any other way legally bind Spectrum21 in any fashion, nor shall Customer be authorized to make any representations about Spectrum21 or its services other than to set forth Spectrum21'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) 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 (Orange County, State of 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 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 for ONE YEAR from date of initial invoice payment. It shall automatically be renewed on an Month-to-Month basis until terminated in one of the following ways:

  1. By either party, by notifying the other in writing Within Thirty Days of any given Month after expiration date. (see 2d)
  2. By Spectrum21, 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.
  3. By Spectrum21, upon sixty (60) days' written notice, if
    1. Spectrum21 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.
  4. By Spectrum21, immediately upon giving written notice to Customer, in the event that
    1. Any bank draft or check delivered by Customer to Spectrum21 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 Spectrum21;
    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.
  5. By Spectrum21 immediately, if Customer attempts to assign all or any part of this Agreement without Spectrum21's prior written approval;
  6. By Spectrum21 immediately, if Customer fails to cause Spectrum21 to be informed in writing immediately on the happening of any event specified in this section;
  7. By Customer, immediately upon giving written notice to Spectrum21, if
    1. There are instituted bankruptcy or insolvency proceedings against Spectrum21, which are not vacated within sixty (60) days from the date of filing;
    2. Spectrum21 institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency;
    3. Spectrum21 makes an assignment of all or part of its assets for the benefit of creditors; or
    4. Spectrum21 fails to cause Customer to be informed 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 Spectrum21, 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. Spectrum21 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 Spectrum21 in California. It is to be governed by and construed under the laws of the State of California and the United States of America. The federal and state courts of the State 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 Spectrum21. 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 , 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. ENTIRE AGREEMENT; MODIFICATIONS

This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. Spectrum21 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 Spectrum21 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.

IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, and in consideration of the covenants and agreements contained herein, do hereby execute this instrument, with each party warranting their ability to enter into this agreement for the person or entity herein named as a party hereto.

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Copyright © 2000  Spectrum21.Com   Fullerton,  California  92838  U.S.A.