ADAPTABLE DIGITS SERVICE AGREEMENT
THIS AGREEMENT is made and entered between Adaptable Digits, and its subsidiaries located at 120 Ridgeview Drive, Veazie, Maine, hereinafter referred to as ("Adaptable Digits") and you, the Customer, who wishes to use the Services of Adaptable Digits in accordance with Adaptable Digitsís policies, order forms and standard application(s) which are located on the World Wide Web at http://www.adaptabledigits.net, http://www.adaptabledigits.com and its various subdirectories.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. SERVICE DESCRIPTION: As a World Wide Web, Information Technology and Internet Service Provider, Adaptable Digits provides Internet web hosting, ecommerce, domain registration and associated services, hereafter referred to as the ("Service") and maintains a network of dedicated server computers, routers, hubs, switches, other equipment and software (collectively, the "Network") located in North Carolina which is integrated with the Internet. This Network sends and receives data and information in relationship to the World Wide Web. Customer wishes to establish an Internet web presence using Adaptable Digitsís Network and Services.
2. CONDITIONS: The application and this Agreement constitute a legal and binding contract between Adaptable Digits and the Customer and does not extend to any other person or entity. Customer may resell to third parties (subject to the provisions of separate Reseller Agreement) but is responsible for third party activities and content, and is bound by the terms under this Agreement. The duration or Initial Term of this Agreement is for six (6) consecutive months beginning on the date of application, but Adaptable Digits will allow the Customer to pay for the six months of services in six monthly installments. Subsequent Terms shall be for six month periods. Excess resources utilized by Customer to include data transfer, disk space and virtual host limits shall be paid for by Customer. Adaptable Digits will bill Customer and Customer shall pay for excess resources used by Customer. Cancellations after an application is received and webspace is set-up will still hold the Customer responsible for costs incurred by Adaptable Digits concerning the set-up of the web space. All cancellations must be IAW Adaptable Digitsís billing policies located on-line at at http://www.adaptabledigits.net. All cancellations shall be in writing and delivered via postal mail to Adaptable Digits with telephonic confirmation.
3. WARRANTIES: With respect to the Services to be provided herein, the Customer acknowledges that Adaptable Digits makes absolutely no warranties whatsoever, express or implied. As a result, the Customer agrees that Adaptable Digits shall not be liable to the Customer for any claims, damages or loss of profit which may be suffered by the Customer or any other entity in any respect for direct, indirect, consequential, actual, or punitive damages arising out of or in relation to the Services provided herein, including, but not limited to, losses or damages resulting from the loss of data as the result of delays, non-deliveries, or Service interruptions.
4. INFORMATION: The utilization of any data or information received by the Customer from the utilization of the Service to be provided by Adaptable Digits is at the Customerís sole and absolute risk. Adaptable Digits specifically disclaims and denies any responsibility for the completeness, accuracy or quality of information obtained through the Services to be provided hereby.
5. DOMAIN NAME: If Adaptable Digits or its subsidiaries acquires or registers an Internet Domain Name on behalf of the Customer, then in such case the Customer hereby waives any and all claims which it may have against Adaptable Digits, 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 the providing of this Service by Adaptable Digits for any reason.
6. PAYMENT: The set-up fee and first payment are due at the time the on-line application and Agreement are filled out, and submitted to Adaptable Digits. Subsequent payments are due according to the selected fee schedule following the establishment of the web space and Services on the Internet. Web space and Services will be billed a minimum of one (1) month in advance depending on the selected fee schedule. Subsequent payments are due on the 15th day of each month as per the selected fee schedule. In the event that the Customer fails to pay for such Services in advance, Adaptable Digits shall be entitled to unilaterally terminate this Agreement and discontinue the Service until payment is made. As consideration for the Internet services provided by Adaptable Digits to Customer, Customer agrees to pay Adaptable Digits, at the time of submitting the application and order, all the Adaptable Digits Fees for which Customer has ordered Service regardless of the billing and payment schedule selected. All set-up and Initial Term fees are non-refundable, in whole or in part, even if Customerís web hosting and Service account is suspended, canceled or transferred prior to the end of Customerís then current Initial or Subsequent six month Term. Customer remains obligated to pay all amounts agreed to in the Initial Term, and if Adaptable Digits has purchased equipment on behalf of Customer, Customer shall assume responsibility for payments for such equipment, until paid in full. Any termination by Adaptable Digits or Customer shall not relieve Customer of any obligations to pay fees accrued prior to such termination. In the event of failure to pay by Customer and/or a chargeback by a credit card company (or similar action by another payment provider allowed by Adaptable Digits) in connection with the payments of the Services, web hosting, domain services and domain registration fees for a Customerís account, Customer agrees and acknowledges that the domain name registration shall be transferred to Adaptable Digits as the paying entity for that registration to the registry and that Adaptable Digits reserves all rights regarding such domain name registration including, without limitation, the right to make the domain name available to other parties for purchase. Adaptable Digits will reinstate Customerís domain name registration solely at Adaptable Digitsís discretion, and subject to Adaptable Digitsís receipt of payment in full by Customer.
7. BREACH AND REVOCATION: In the event that Adaptable Digits may at any time believe that the Service is being utilized for unlawful purposes by the Customer or in contravention with the terms and provisions herewith, Adaptable Digits may unilaterally and immediately discontinue such Service to the Customer without liability. This will include failure to pay, adult content and/or unsolicited email.
7.1 SECURITY INTEREST IN CUSTOMERíS DATA AND DOMAIN NAME REGISTRATION RIGHTS: Customer agrees that Adaptable Digits and/or its subsidiaries shall have a security interest in and the right in its sole discretion to suspend, cancel, transfer or modify Customerís web hosting account and domain name registration in the event that Customer fails to pay the total amount then due by the 15th of the month or otherwise breaches this Agreement (including the Dispute, AUP, or Billing Policies) and does not cure such breach within five (5) days of notice by Adaptable Digits. Customer understands and acknowledges that by placing Customerís domain name and Customerís information on Adaptable Digitsís servers, Customer has granted Adaptable Digits and its subsidiaries a security interest in Customerís domain name registration and customerís data. Customer acknowledges and agrees that Customerís domain name is subject to suspension, cancellation or transfer by any ICANN procedure, by any registrar or registry administrator procedures approved by an ICANN-adopted policy, or by any other TLD registry administrator procedures as the case may be, for the resolution of disputes concerning the domain name. Customer further agrees and acknowledge that Adaptable Digits owns all databases, compilations, collective and similar rights, title and interests worldwide in the web hosting and domain name databases generated by information relating to Adaptable Digits and Adaptable Digits subsidiary customers, and all information and derivative works generated from the web hosting and domain name databases to include but not limited to:
(a) the original creation date of the domain name registration;
(b) the expiration date of the domain name registration;
(c) the name, postal address, e-mail address (which Adaptable Digits may alias for purposes of transfers), voice telephone number, and where available fax number of the technical contact, administrative contact, zone contact and billing contact for the domain name registration;
(d) any remarks concerning the registered domain name that appear or should appear in the WHOIS or similar database;
(e) any other information Adaptable Digits generates or obtains in connection with the provision of domain name registration and/or web hosting services.
7.2 DEFAULT; ACCELERATION; AND, WAIVER OF NOTICE: Should Customer fail to pay Customerís bill by the 15th of the month or should the Customer otherwise breach this Agreement (including the Dispute, Billing, or AUP Policies), Adaptable Digits may declare the Customer in default and require the Customer to pay the entire debt immediately and without prior notice. Further, in the event of default, Adaptable Digits may act as Companyís Attorney-in-Fact to execute in actions or proceedings in connection with this Agreement, including, but not limited to, selling or otherwise disclosing Customer data and/or the domain name registration.
8. INDEMNIFICATION: The Customer shall indemnify and hold harmless Adaptable Digits from any and all loss, cost, expense, and damage on account of any and all manner of claims, demands, actions, suits, proceedings, judgements, costs and expenses that may be initiated against Adaptable Digits and Adaptable Digitsís officers, directors, and employees for any Service provided to Customer by Adaptable Digits to include web space content that violates any copyright, proprietary right of any person, state and federal regulations, or contains any matter that is libelous or scandalous.
9. CHANGES IN TERMS OF AGREEMENT: Adaptable Digits reserves the right to make changes to the terms and conditions of this Agreement at any time, and to the on-line application to include service pricing, advising of the change and the effective date thereof by publishing it to the appropriate Adaptable Digits web site, but with changes in service fees being effective only at the end of any period for which the Customer has prepaid. Utilization of the Service by the Customer following the effective date of such change shall constitute acceptance by the Customer of such change(s). Customer is solely responsible for staying informed with respect to changes in this Agreement, the application, Acceptable Use Policy and Billing Policy, all of which are published on-line and readily available for public viewing.
10. ENTIRE AGREEMENT AND UNDERSTANDING: This instrument, the application for web space and Services, Adaptable Digitsís AUP (Acceptable Use Policy) and Adaptable Digitsís BP (Billing Policy), all of which are published on Adaptable Digitsís web site, are incorporated by reference and constitute the entire agreement between the parties, and represents the complete and entire understanding of the parties with respect to the subject matter of this Agreement.
11. RELATIONSHIP: The parties hereto are independent entities and nothing contained in this Agreement shall be construed to constitute Customer an agent, employee, partner, independent contractor, joint venturer, or any other similar entity.
12. GOVERNING LAW: This Agreement shall be governed by the laws of the State of Maine in the United States of America without regard to such Stateís laws and rules concerning conflicts of laws. Each party agrees that jurisdiction and venue for any and all claims, disputes or other matters arising out of the Services provided herein and under this Agreement will only lie in Penobscot County, Maine. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement and Services provided herein, the prevailing party in such action shall be entitled to all reasonable costs to include attorney fees.
13. ARBITRATION: In the event a dispute or controversy arises out of or relating to this Agreement, such dispute or controversy (including contentions that a party is in default in performance of its obligations hereunder, but excluding questions as to the validity and binding effect of this Agreement, which shall be conclusively presumed) shall be submitted to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award may be entered in any court of competent jurisdiction.
14. SEVERABILITY: In the event that any term or provision of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable or invalid in whole or in part for any reason, the remaining provisions of this Agreement shall remain in full force and effect.
15. CONFIDENTIALITY AND PROPRIETARY INFORMATION: Customer acknowledges and agrees that any information not generally known by or disclosed to the public to include but not limited to computer programs, trade secrets, customer lists, financial data, employee expertise, operating procedures, methodology, source code, algorithms and inventions are the property of Adaptable Digits and may not be utilized, interfered with or released without the express written permission of Adaptable Digits. Customer agrees that Adaptable Digits is the owner of certain copyrights and trademarks in which Customer agrees not to interfere.
16. INTERPRETATION: The format, words and phrases used herein shall have the meaning generally understood in the Telecommunicatons/Software/Internet Industries. This Agreement shall be construed in accordance with its fair meaning and not against the drafting party.
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.