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Virtual Private Server or VPS Hosting from WEBKEEPERS.COM
 
Agreement Virtual Private Server or VPS Hosting from WEBKEEPERS.COM
 
 

SERVICE AGREEMENT

< TERMS AND CONDITIONS >

SERVICES

This Service Agreement ("Agreement") applies to the purchase from WEBKEEPERS.COM ("WEBK") of all services (collectively, the "Services") selected by Customer on a WEBK Order Form or via the information maintenance interface that is accessible on the WEBK Website ("Interface"), as applicable, incorporated by reference and attached hereto, if any. WEBK reserves the right to modify its network and facilities used to provide the Services for purposes including but not limited to accommodating evolving technology and increased network demand, and providing enhanced services. WEBK shall use reasonable efforts to notify Customer of any planned changes to WEBK's network or facilities that may adversely affect the Services provided hereunder.

TERM

This Agreement shall be for the term specified by Customer on the Order Form or via the Interface, as applicable (the "Initial Term"). This Agreement will be automatically renewed, at the end of the Initial Term or any extension thereof unless either party provides fourteen (14) days written notice to the other of termination of this Agreement prior to the end of the then current term. The Initial Term and all extensions thereof are collectively referred to herein as the "Term" of this Agreement. Customers may terminate this Agreement prior to the end of the Initial Term or any extension thereof in accordance with the Cancellation section herein.

BILLING AND PAYMENT

Fees:
During the term of this Agreement, Customer shall pay the fees for the Services that are set forth on the Order Form or the Interface, as applicable. In addition to such fees, WEBK may charge taxes, fees or assessments by governmental agencies and WEBK shall have the right, at any time, to pass through and invoice to Customer any new or increased taxes, fees, assessments or other charges imposed on or required to be collected by WEBK by any governmental agency. Customer shall also be responsible for paying all taxes, fees or assessments and other charges imposed on Customer by any governmental agency that may result from this Agreement, or any of the activities contemplated hereunder.
Terms Of Payment:
Invoices are due and payable upon receipt. If Customer, in good faith, disputes all or any portion of an invoice, Customer must, within thirty (30) days of the date of the invoice, (i) pay all undisputed amounts and (ii) provide WEBK with written notice of the details of the billing dispute, together with all supporting documentation. The parties agree to work diligently and in good faith to resolve all billing disputes. Disputed amounts found to be properly owed to WEBK shall be paid promptly following resolution of the dispute, together with the late-payment interest fee set forth below on such amount accrued from the 30th day following the date of the original invoice. All payments shall be made in U.S. currency.
Service Continuation After Initial Term:
The fees set forth in the Order Form, or via the Interface are guaranteed during the Initial Term of this Agreement. If Customer continues to receive the Services after the Initial Term without entering into a new agreement or agreement extension,the fees charged after the Initial Term shall be at the then standard WEBK rates for such services, without discount, determined month to month.
Service Charge:
Customer will pay a late payment charge equal to 1.5% (or the highest amount permitted by law, whichever is lower) per month or portion thereof on the outstanding balance of any invoice remaining unpaid thirty (30) days after the date upon which payment is due.
Suspension Or Interruption Of Service For Non-Payment:
In the event Customer's account becomes past due, or if WEBK has a reasonably held belief that Customer may be unable to pay its debts as they become due (i.e., is financially insecure), WEBK may, in its sole discretion, suspend, interrupt or disconnect the Services upon three (3) days written notice to Customer. In the event of such suspension, interruption or disconnection, Customer may be required to post a deposit or such other security, as WEBK reasonably deems necessary in order to resume receiving the Services. In addition, if WEBK reasonably determines that Customer may be financially insecure, WEBK may require such other action of Customer as WEBK reasonably determines is necessary under the circumstances, including letters of credit, security deposit(s), restrictions on available credit or other action as WEBK may require from time to time regardless of Customer's then-current payment status on its account or its payment history on such account. Failure to satisfy WEBK's request for such action within timelines reasonably set by WEBK may result in immediate termination of service without further notice. Customer may not withhold or set off any payment for any reason without WEBK's prior written consent. WEBK shall have no liability for any loss or damage resulting from its suspension or termination of Services under this Agreement.

ACCEPTABLE USES

Customer shall at all times adhere to the WEBK Acceptable Use Policy, as amended from time to time by WEBK effective upon posting of the revised policy on the WEBK website, currently located at www.webkeepers.com. Notwithstanding anything to the contrary contained herein, WEBK may immediately take corrective action, including disconnection or discontinuance of any and all Services, or terminate this Agreement in the event of notice of possible violation by Customer of the WEBK Acceptable Use Policy. In the event WEBK takes corrective action due to a violation of the WEBK Acceptable Use Policy, WEBK shall not refund to Customer any fees paid in advance of such corrective action.

CANCELLATION POLICY

Customer may terminate this Agreement by giving WEBK at least fourteen (14) days prior written notice. However, Customer remains obligated to pay all amounts remaining in the Initial Term and any extension thereof, and if WEBK has purchased equipment on behalf of Customer, at Customer's request or pursuant to Customer's order, including but not limited to circuit and router, Customer shall assume responsibility for payments for such equipment, until paid in full.
In order to terminate early, Customer's primary contact person on the account should notify WEBK of such request to do so. In the case of credit card orders, all termination requests should be signed by Customer's primary contact person on the account who must provide the last four digits of the credit card on file with WEBK. However, WEBK shall not be liable for unauthorized termination of an account.

IP ADDRESS OWNERSHIP

WEBK shall maintain and control ownership of all IP addresses that may be assigned to Customer by WEBK and WEBK reserves, in its sole discretion, the right to change or remove any and all such IP addresses.

CACHING

Customer expressly (i) grants to WEBK a license to cache the entirety of Customer's Web Site, including content supplied by third parties, hosted by WEBK under this Agreement and (ii) agrees that such caching is not an infringement of any of Customer's intellectual property rights or any third party's intellectual property rights.

DISK USAGE

Customer agrees that disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Service Order Form. WEBK reserves the right to monitor the customer's usage. If disk usage exceeds the agreed upon number of megabytes per month, WEBK, in its sole discretion, may assess additional standard charges, disconnect or discontinue any and all Services, or terminate this Agreement, in each case, upon ten (10) days advance written notice to Customer. In the event that WEBK elects to take such action, Customer shall not be entitled to a refund of any fees paid in advance of such corrective action.

EQUIPMENT

Customer acknowledges that any hardware, software, and other equipment utilized by WEBK to provide the Services or supplied by WEBK to Customer for purposes of Customer receiving the Services (collectively, the "Equipment") is and remains the property of WEBK or its licensors, subject to purchase rights, if any, specifically granted to Customer under this Agreement. In the event that Customer exercises a purchase option for the Equipment, Customer acknowledges that any rights or remedies Customer may have regarding the performance or compliance of such purchased Equipment are limited to warranties, if any, extended by the manufacturer of such Equipment, to the extent that such warranties are assignable by WEBK to Customer. Customer further acknowledges that WEBK will have no responsibility for any other equipment utilized by Customer to receive the Services whether supplied by Customer or any Third Party ("Customer Equipment"). Customer is responsible for risk of loss or damage to any Equipment supplied by WEBK to Customer to enable Customer to receive the Services and shall ensure that, during the term of this Agreement, such Equipment is insured for full replacement value with a reputable insurance company licensed to do business in the state in which the Equipment is located. Customer shall operate the Equipment supplied by WEBK in accordance with WEBK and manufacturer's guidelines. Customer is entitled to use any Equipment supplied by WEBK only in connection with Customer permitted use of the Service(s). Customer shall not resell, transfer, export or re-export any Equipment, or any technical data derived therefrom, in violation of any applicable United States or foreign law and is responsible for loss of or damage to such Equipment. WEBK reserves the right to substitute, change or modify the Equipment or any software utilized to provide the Services at any time. WEBK shall not be responsible for any changes in Service(s) that cause Customer Equipment to become obsolete, require modification or alteration, or otherwise affect the performance of the Service(s). However, if practicable (without an obligation to expend funds or incur additional costs), WEBK will assist Customer in resolving any such Equipment problems over which WEBK may have control. WEBK may interrupt the Services at any time, without liability to Customer, to perform scheduled or emergency maintenance.
WEBK may, in its sole discretion, take corrective action, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, in the event Customer engages in or commits any of the following acts:
(i) Alter, modify or improperly use, including violations of WEBK's Acceptable Use Policy, any portion of the Equipment or software utilized to provide the Services
(ii) Perform or attempt to perform maintenance services on the Equipment unless specifically requested by WEBK to do so
(iii) Attach devices or other equipment not approved by WEBK [or the original manufacturer of the Equipment] to the Equipment
(iv) Alter or modify Customer's IP address space on any interface on the Equipment without prior communication to WEBK In the event that WEBK elects to take any corrective action, Customer shall not be entitled to a refund of any fees paid in advance prior to such corrective action. WEBK shall not have any liability to Customer in the event Customer engages in or commits any of the foregoing acts nor shall WEBK be liable to Customer for any corrective action taken.

DISCLAIMER OF WARRANTY

Customer acknowledges and agrees that WEBK exercises no control over, and accepts no responsibility for, the content of the information passing through WEBK's host computers, network hubs and points of presence (the "WEBK Network") or the Internet. Notwithstanding any other oral or written communications between WEBK and customer about or in connection with the services, to the extent permitted by applicable law, neither WEBK, its employees, affiliate, agents, suppliers, subcontractors, third-party information providers, merchants, licensors nor the like make any warranties of any kind, either expressed or implied, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the services or any equipment WEBK provides. The services and equipment provided under or associated with this agreement are provided on an "AS IS" Bases. Neither WEBK, its employees, affiliates, agents, suppliers, subcontractors, third-party information providers, merchants, licensors or the like, warrant that the services will not be interrupted or error free; nor do any of them make any warranty as to the results that may be obtained from the use of the services or as to the accuracy, reliability or content of any information services or merchandise contained in or provided through the services. WEBK is not liable for the content or loss of any data transferred either to or from customer or stored by customer or any of customer's clientele via the service(s) provided by WEBK.

INDEMNIFICATION

Customer will indemnify, save harmless, and defend WEBK and all directors, officers, employees, subcontractors and agents of WEBK (collectively "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys' fees) arising out of or relating to the use of the Services by Customer, including any violation of the WEBK Acceptable Use Policy. Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.

LIMITATION OF LIABILITY

In no event shall WEBK, its employees, affiliates, agents, suppliers, subcontractors, third-party information provider, merchants, or licensors (The "WEBK Group") be liable for any indirect, incidental, special or consequential damages, or loss of profits, revenue, data or use, suffered by customer or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if WEBK has been advised of the possibility of such damages. In no event will the WEBK Group's liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual amount paid by Customer for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose. Some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, or the limitation of liability with respect to death or personal injury due to negligence, so that the above limitations or exclusions may not apply to Customer. In such jurisdictions, WEBK's liability (and the liability of its affiliates, agents, content providers and service providers) shall be limited to the greatest extent permitted by applicable law.

FORCE MAJEURE

WEBK shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, breakdown or damage to machinery, equipment or software, malfunctioning of software, corruption of data, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services. If any such event continues for a continuous period of thirty (30) days, Customer may terminate this Agreement.

INTELLECTUAL PROPERTY

Customer represents and warrants that Customer's use of the Services shall not infringe the intellectual property or other proprietary rights of WEBK or any third party. Customer further acknowledges that all right, title and interest in any and all technology, including the software, that is part of or provided with the Services and any trademarks or service marks of WEBK or third parties utilized in connection with the Services (collectively, "WEBK Intellectual Property") is vested in WEBK and/or in WEBK's licensors. Unless otherwise specifically provided in this Agreement, Customer shall have no right, title, claims or interest in or to the WEBK Intellectual Property. Customer may not copy, modify or translate the WEBK Intellectual Property or related documentation, or decompile, disassemble or reverse engineer the WEBK Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so. Unless otherwise specifically provided in this Agreement, Customer is not authorized to distribute or to authorize others to distribute the WEBK Intellectual Property in any manner without the prior written consent of WEBK; provided, however, that nothing in this sentence would preclude Customer from using the WEBK Intellectual Property as incorporated in the Services. This paragraph shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which Customer may now have or hereafter acquires in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title or interest in the third-party software to Customer.

CONFIDENTIAL INFORMATION

Each party acknowledges that, in the course of the performance of this Agreement, it may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of the other party or third parties ("Confidential Information"). Except as provided in WEBK's Acceptable Use Policy (AUP), each party agrees to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this Agreement. Upon request of either party or on termination or expiration of this Agreement, each party shall return the Confidential Information of the other party then in its possession. Nothing in this Agreement shall prohibit or limit either party's use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is rightfully in receiving party's possession, as evidenced by receiving party's records; (c) is disclosed to the receiving party without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by the receiving party without any breach of this Agreement; (e) is the subject of a written permission to disclose provided by the disclosing party; or (f) is required to be disclosed by law, court order or request by any government or regulatory authority. Customer further agrees and acknowledges that WEBK may disclose Customer account information in accordance with WEBK's AUP and Privacy Policy, located at www.webkeepers.com, as amended from time to time by WEBK effective upon posting of the revised policy at the URL.

CUSTOMER DATA

Customer is solely responsible for all its content residing on WEBK servers, and except as otherwise agreed with WEBK, for the backup and restoration of such content.

< SELECTED SERVICES >

DOMAIN NAME REGISTRATION
A. Registrar Services
WEBK has entered into an agreement with accredited domain name registrar(s) to provide Customer with domain name registration services, for any requests by Customer to WEBK to register, or renew an Internet domain name or transfer a domain name from another registrar to the WEBK registrar. As consideration for the domain name registration services provided by a domain name registrar to Customer, on behalf of WEBK, Customer agrees to pay WEBK, prior to the effectiveness of the desired domain name registration or renewal, the then-current amounts set forth in the WEBK price schedule for the initial registration of the domain name and, should Customer choose to renew the registration, subsequent renewals of the registration. To view the current rates for using WEBK's domain name services, please see WEBK's PRICE SCHEDULE BY PRODUCT CLASS (www.webkeepers.com). All fees are non-refundable, in whole or in part, even if Customer's domain name registration is suspended, cancelled or transferred prior to the end of Customer's then current registration term. WEBK reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion. Customer's requested domain name will not be registered or renewed unless and until WEBK receives actual payment of the initial registration fee and/or renewal fee, and has confirmed Customer's registration in an email from WEBK to the email address for the Administrative Contact indicated in Customer's registration application and/or on file.
B. Renewal
Customer must ensure that all renewal fees are paid when due; provide accurate contact information to WEBK; agree to existing terms & conditions; and follow all other procedures as WEBK may indicate in the renewal notification that WEBK will send to Customer's email address on record at the time the renewal notification is sent. Any failure to follow all required procedures shall be at Customer's sole risk. Should Customer neglect to follow required procedures within the time specified, Customer's registration may be cancelled. Payment must be made by credit card or such other method as WEBK may indicate in the renewal notification.
C. Cancellation; Reinstatement
In the event of a chargeback by a credit card company (or similar action by another payment provider allowed by WEBK) in connection with the payments of the registration fees or renewal for Customer's domain name registration, Customer agrees and acknowledges that the domain name registration shall be transferred to WEBK as the paying entity for that registration to the registry and that WEBK reserves all rights regarding such domain name including, without limitation, the right to make the domain name available to other parties for purchase. WEBK will reinstate Customer's domain name registration solely at WEBK's discretion, and subject to WEBK's receipt of the initial registration or renewal fee and WEBK's then-current reinstatement fee.
D. Transfer
Customer will be responsible for all costs and fees associated with the registration of Customer's domain name including, but not limited to, all costs and fees for moving or transferring such domain name. Under no circumstances shall WEBK be responsible for this cost. WEBK may transfer Customer's domain name from one WEBK registrar to another WEBK registrar without Customer's request.
E. Use of Personal Information; Updated Information.
Domain name registrars and/or WEBK will collect certain personal information (including, without limitation, contact information such as name, address, email address and telephone number) ("Personal Information") from Customer during the registration process. Customer agrees and acknowledges that domain name registrars will share Personal Information that Customer provides (or that is gathered about Customer during the registration process, including, for example, Customer's primary domain name server and the like), or that domain name registrar or WEBK otherwise maintains, with one another, with the Internet Corporation for Assigned Names and Numbers ("ICANN"), with registry administrator(s), and with other third parties as ICANN and applicable laws and/or policy may require or permit. Customer further agrees and acknowledges that domain name registrars and/or WEBK shall be permitted (and in some cases may be required) to make publicly available, or directly available to third party vendors, some, or all, of the Personal Information or domain name registration information Customer provides, for purposes of inspection (such as through WEBK's WHOIS service) or for targeted marketing and other purposes as required or permitted by ICANN and applicable laws. Customer may access Customer's Personal Information and/or domain name registration information in donamin name registrars' or WEBK's possession to review, modify or update such information, through Customer's Control Panel/Interface. WEBK will not process data about any identified or identifiable natural person that WEBK obtains from Customer in a way incompatible with the purposes and other limitations which WEBK describes in this Agreement. Domain name registrars will take reasonable precautions to protect the information it obtains from Customer from loss, misuse, unauthorized access or disclosure, alteration or destruction. Customer hereby irrevocably waives any and all claims and causes of action Customer may have arising from such disclosure or use of Customer's Personal Information and/or domain name registration information by domain name registrars or WEBK.
F. ICANN Guidelines
Additionally, Customer acknowledges that ICANN may establish guidelines, limits and/or requirements that relate to the amount and type of information that domain name registrars or WEBK may or must make available to the public or to private entities, and the manner in which such information is made available. Customer hereby consents to any and all such disclosures and use of, and guidelines, limits and restrictions on disclosure or use of, information provided by Customer in connection with the registration of a domain name (including any updates to such information), whether during or after the term of Customer's registration of the domain name.
G. Third Party Data
In the event that, in registering the domain name, Customer is providing information about a third party, Customer hereby represents that Customer has (1) provided notice to that third party of the disclosure and use of the party's information as set forth in this Agreement, and (2) that Customer has obtained that third party's express consent to the disclosure and use of that party's information as set forth in this Agreement.
H. Accuracy of Data
Customer acknowledges that willfully providing inaccurate information or willfully failing to update information promptly will constitute a material breach of this Agreement and will be sufficient basis for cancellation of Customer's domain name registration. (In addition, under certain federal laws, such provision of inaccurate or false information is one factor in determining whether Customer may have violated the trademark rights of another party in registering a domain name confusingly similar to such party's trademark.) Customer is responsible for notifying WEBK in writing of changes in its contact information. In addition, Customer further agrees that Customer's failure to respond for over fifteen (15) calendar days to inquiries by domain name registrars and/or WEBK concerning the accuracy of contact details associated with Customer's registration shall constitute a material breach of this Agreement and will be sufficient basis for cancellation of Customer's domain name registration.
I. Domain Name Transfers
If Customer has requested that the domain name registrar of record for Customer's domain name(s) (as identified by Customer during the registration process) be changed to domain name registrars, the following terms shall apply: In making the transfer request, Customer represents and warrants that: (i) Customer is the rightful holder of the registration for the domain name(s) that Customer seeks to transfer. (ii) Customer is not in default with respect to any obligations that Customer owes to the current registrar of record. (iii) Customer is not the subject of any pending bankruptcy proceeding, nor is Customer a party to any dispute concerning the use or registration of the domain name(s). (iv) The domain name(s) are not currently the subject of any dispute or collection effort, including any attachment, levy, lien, garnishment, escrow or other proceedings. (v) Customer is authorized to request the transfer and to enter into this Agreement. More than sixty (60) days have passed since the domain name(s) was registered, transferred to a new registrar, or renewedCUSTOMER MAY NOT TRANSFER A DOMAIN NAME TO A NEW REGISTRAR WITHIN SIXTY (60) DAYS OF INITIAL REGISTRATION, OR ANY SUBSEQUENT TRANSFER OR RENEWAL. Customer agrees that neither WEBK nor domain name registrars will have any responsibility for any obligations that Customer may owe to the current registrar of record for the domain name(s) Customer seeks to transfer, and that Customer will be responsible, pursuant to the indemnification provision herein, for any costs that WEBK or domain name registrars may incur in resolving any claims brought by any third party (including the current registrar of record) relating to this transfer. Customer will not be entitled to a refund or credit for any amounts that Customer may have paid to the current registrar of record. Upon the completion of the transfer process, however, the term of Customer's registration will be extended by the period for which Customer has paid WEBK. Customer agrees that WEBK may charge Customer an additional maintenance fee in order to maintain Customer's domain name for any term carried over from the current registrar of record. Upon receipt of a request to transfer a domain name from another registrar (losing registrar) to WEBK and domain name registrars, WEBK requires validation of the request from the Administrative Contact on record at the time of the transfer request. Customer authorizes WEBK and domain name registrars to take all actions reasonably necessary to transfer the domain name(s), including contacting and updating Customer's registration information with the current registrar of record and the registry. Except as noted above, domain name registrars and WEBK will treat Customer's transfer request as an initial domain name registration and will provide all subsequent domain name services in accordance with the terms and conditions herein. The term "register" or "registration" as used in this Agreement, shall be read to include the transfer of a domain name registration from Customer's current registrar of record to domain name registrars.
J. Third-Party Proprietary Rights
Customer shall be solely responsible for ensuring, and hereby represents and warrants to WEBK, that Customer's domain name does not infringe upon any trademark, trade names, service mark or other proprietary rights owned by a third party. Customer agrees to be bound by the terms of the dispute policy adopted by the domain name registry, and related agreements that Customer will be asked to review and indicate Customer's acceptance of during the domain name registration process. In the case of gTLDS (global Top Level Domains, including but not limited to .com, .net, .org, .biz, and .info), the dispute policy is the ICANN Domain Name Dispute Policy, which is posted at www.icann.org/udrp.
K. Welcome Page
Customer consents to WEBK's activation of the registered domain name on a "Welcome Page" containing a notice, "Welcome to the Future Website of domain name." Such "Welcome Page" indicates that WEBK registered the domain name, and links to WEBK Websites. This "Welcome Page" may be replaced by the Customer when the Customer contracts for Web hosting and posts Customer's own content.
L. Domain name search process
WEBK endeavors to make the domain name availability search process reliable; however, WEBK does not guarantee availability of domain names or the accuracy or security of the WHOIS system. The registration process is not complete until the domain name requested by Customer has been registered in Customer's name with the appropriate registry. Because there are delays in the actual registration of a domain name with the appropriate registry, WEBK is not responsible if domain names requested by Customer are actually registered to third parties.

< MISCELLANEOUS >

GOVERNING LAW
The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of California.

ENFORCEMENT OF AGREEMENT
In the event it is necessary for WEBK to enforce its rights under this agreement, Customer agrees to pay all fees incurred by WEBK (including, but not limited to, attorney's fees and collection agency fees)

AMENDMENT OR WAIVER
Except as otherwise provided herein, this Agreement may not be amended except upon the written consent of Customer and an officer of WEBK. No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any party of the time for performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself.

ASSIGNMENT AND SEVERABILITY
This Agreement shall be binding upon and inure to the benefit of Customer, WEBK and WEBK's respective successors, and assigns. Customer may not assign this Agreement without the prior written consent of WEBK, which consent will not be unreasonably withheld or delayed. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.

< NOTICES >

All notices to Customer hereunder shall be given at the Billing Address provided on the Service Order Form. All notices to WEBK hereunder shall be given to:

WEBKEEPERS
4685 Macarthur Court. #150
Newport Beach, CA 92660, USA
Fax: (949) 949-296-6260

Any notice hereunder shall be in writing and shall be given by registered, certified or Express mail, or reliable overnight courier addressed to WEBK at the address above and to Customer at the address provided in the Service Order Form; or by facsimile to WEBK via the above facsimile number and to Customer via the facsimile number provided in the Service Order Form; or by e-mail to the Customer at the e-mail address provided on the Service Order Form. In addition to notice to the above address, Customer must provide notice of its intention to terminate this Agreement by either providing the appropriate data online at www.webkeepers.com, by emailing a request for cancellation to cancellation@webkeepers.com, or by mailing (by one of the means described in this section) a cancellation request to Termination Review, WebKeepers, Inc., 4685 Macarthur Court. #150, Newport Beach, CA 92660, USA. Notice shall be deemed to be given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed and with postage prepaid. If the Customer's cancellation notice is considered to be given to WEBK properly, WEBK shall give a receipt to the Customer within three (3) days after the date the cancellation notice is deemed to be given.

ENTIRE AGREEMENT
This Agreement, and any other document or agreements specifically identified in this Agreement, supercedes all previous representations, understandings or agreements.

SURVIVAL
The rights and obligations of the parties in this Agreement that would by their nature or context be intended to survive the expiration or termination of this Agreement shall so survive.

ACCEPTANCE OF SERVICES
Acceptance of this agreement by WEBK may be subject, in WEBK's absolute discretion, to satisfactory completion of a credit check and continued credit worthiness of customer. Activation of service shall indicate WEBK's acceptance of this agreement. Use of the WEBK network constitutes acceptance of this agreement. Customer represents and warrants that customer has full authority and right to enter into this agreement. Customer further represents and warrants that customer is at least 18 years of age, and that customer is not located in a country subject to U.S. embargoes, or listed on the U.S. treasury department's list of specially designated nationals, or listed on U.S. Commerce department's denied persons list or entities list.

 

 

<ACCEPTABLE USE POLICY>

Scope:
The acceptable use policy of WebKeepers Inc. ("WEBK") intends to serve as an appendix to the Service Agreement of the company. Every Customer is subject to abide be the Use policy, and by using WebK's services agrees to be bound by the Use Policy. WebK will revise, add sections, phrases to this Policy from time to time as the need may arise, and post it on its website. A customer's use of the Services after revisions to the Use Policy are posted on WebK's website at www.webkeepers.com will constitute such person's acceptance of any changes, modifications or additions to the Use Policy.

According to the Use Policy, Uses are prohibited from indulging in the following activities:

Spamming

Sending unsolicited bulk and/or commercial messages over the Internet (known as "spamming"). It is not only harmful because of its negative impact on consumer attitudes toward WebK, but also because it can overload WebK's network and disrupt service to WebK subscribers. Also, maintaining an open SMTP relay is prohibited. When a complaint is received, WebK has the discretion to determine from all of the evidence whether the email recipients were from an "opt-in" email list.

Intellectual Property Violations

Engaging in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, corporations, or other entities. Also, engaging in activity that violates privacy, publicity, or other personal rights of others. WebK is required by law to remove or block access to customer content upon receipt of a proper notice of copyright infringement. It is also WebK's policy to terminate the privileges of customers who commit repeat violations of copyright laws.

Tempering with Message Contents

WebK does not allow its customers, under any citcumstances, forging, misrepresenting, omitting, or deleting message headers, return mailing information and/or internet protocol address to conceal the identity of other individuals, business entities and organizations.

Hacking

WebK also strictly prohibits its customer from hacking. "Hacking" includes, but is now limited to, illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in hacking.

Posting Threatening Language on WebK System/Servers

WebK does not allow its customer, under any circumstances, to abuse its systems/servers by sending threatening messages to other individuals, organization or business entities which may be harmful for them in any way.

Distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities

Distributing information regarding the creation of and sending Internet viruses, worms, Trojan horses, pinging, flooding, mailbombing, or denial of service attacks. Also, activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service, or equipment

Facilitating a Violation of this Acceptable Use Policy

Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this ACCEPTABLE USE POLICY, which includes the facilitation of the means to spam, initiation of pinging, flooding, mailbombing, denial of service attacks, and piracy of software.

Export Control Violations

Exporting encryption software over the Internet or otherwise, to points outside the United States.

Prohibition of Adult Site

WebK's Customer are not allowed, under any circumstances, to out adult material, or images and text which, in any way, can be constituted as adult material, on its system/servers/network. WebK, in its sole discretion has the absolute right to block, terminate or abandon any material of this nature.

Customer's Responsibilities

It is the Customer's sole responsibility to keep their contact information with WebK so that WebK can contact the Customer as the need may arise. Updated all the time.

Other Illegal Activities

Engaging in activities that are determined to be illegal, including advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, and pirating software.

Other Activities

Engaging in activities, whether lawful or unlawful, that WebK determines to be harmful to its subscribers, operations, reputation, goodwill, or customer relations.

As we have pointed out, the responsibility for avoiding the harmful activities just described rests primarily with the subscriber. WebK will not, as an ordinary practice, monitor the communications of its subscribers to ensure that they comply with WebK policy or applicable law. When WebK becomes aware of harmful activities, however, it may take any action to stop the harmful activity, including but not limited to, removing information, shutting down a web site, implementing screening software designed to block offending transmissions, denying access to the Internet, or take any other action it deems appropriate.

WebK also is aware that many of its subscribers are, themselves, providers of Internet services, and that information reaching WebK's facilities from those subscribers may have originated from a customer of the subscriber or from another third-party. WebK does not require its subscribers who offer Internet services to monitor or censor transmissions or web sites created by customers of its subscribers. WebK has the right to directly take action against a customer of a subscriber. Also, WebK may take action against the WebK subscriber because of activities of a customer of the subscriber, even though the action may effect other customers of the subscriber. Similarly, WebK anticipates that subscribers who offer Internet services will cooperate with WebK in any corrective or preventive action that WebK deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of WebK policy.

WebK also is concerned with the privacy of on-line communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, WebK urges its subscribers to assume that all of their on-line communications are insecure. WebK cannot take any responsibility for the security of information transmitted over WebK's facilities.

WebK will not intentionally monitor private electronic mail messages sent or received by its subscribers unless required to do so by law, governmental authority, or when public safety is at stake. WebK may, however, monitor its service electronically to determine that its facilities are operating satisfactorily. Also, WebK may disclose information, including but not limited to, information concerning a subscriber, a transmission made using our network, or a web site, in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, or governmental request. WebK assumes no obligation to inform the subscriber that subscriber information has been provided and in some cases may be prohibited by law from giving such notice. Finally, WebK may disclose subscriber information or information transmitted over its network where necessary to protect WebK and others from harm, or where such disclosure is necessary to the proper operation of the system.

WebK expects that its subscribers who provide Internet services to others will comply fully with all applicable laws concerning the privacy of on-line communications. A subscriber's failure to comply with those laws will violate WebK policy. Finally, WebK wishes to emphasize that in signing the service agreement, subscribers indemnify WebK for any violation of the service agreement, law, or WebK policy, that results in loss to WebK or the bringing of any claim against WebK by any third-party. This means that if WebK is sued because of a subscriber's or customer of a subscriber's activity, the subscriber will pay any damages awarded against WebK, plus costs and reasonable attorneys' fees.

We hope this ACCEPTABLE USE POLICY is helpful in clarifying the obligations of Internet users, including WebK and its subscribers, as responsible members of the Internet. Any complaints about a subscriber's violation of this ACCEPTABLE USE POLICY should be sent to abuse@webkeepers.com.

WEBKEEPERS
4685 Macarthur Court. #150, Newport Beach, CA 92660, USA
Phone:(949) 296-6260 / Fax: (949) 296-6265

 
   
 
 
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