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WEB
SPACE RENTAL AGREEMENT ("Agreement")
between Gotham Web Service and Customer are provided on the following terms and conditions:
1.
The Gotham Web Space Rental Service (the "Service") consists
of services provided to allow the Customer to offer content on the Internet.
These services include space on Gotham Web's Internet server to store
HTML and related multimedia documents and files, the ability to maintain
these pages through one FTP ("File Transfer Protocol") account,
and email accounts. The terms and conditions of this agreement and any
rules and prices published on Gotham Web's site (http://www.gothamweb.com)
constitute the entire and only agreement (collectively, the "Service
Agreement") between Gotham Web Services, Inc and the Customer (hereby
defined as one who has an account with Gotham Web for the Service, including
Customer’s designated users with respect to the Service) and supersede
all other communications and agreements with regard to the subject matter
hereof.
2.
Upon notice provided in written, faxed or emailed form to the Customer,
Gotham Web may modify this Service Agreement or prices, and may discontinue
or revise any or all aspects of the Service in its sole discretion without
prior notice.
3.
Customer agrees to indemnify Gotham Web against any liability for any
and all use of Customer’s account. Furthermore, Customer agrees to
indemnify and hold Gotham Web harmless from any claims and expenses, including
reasonable attorney’s fees, related to Customer’s violation
of the Service Agreement or Customer’s direct or indirect damage
to another party.
4.
Customer is responsible for and must provide all telephone and other equipment
and services necessary to maintain customer’s account remotely through
one FTP account.
5.
CUSTOMER EXPRESSLY AGREES THAT USE OF GOTHAM WEB’S SERVICE IS AT
CUSTOMER’S SOLE RISK. NEITHER GOTHAM WEB NOR ANY OF ITS INFORMATION
PROVIDERS, LICENSERS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL
BE UNINTERRUPTED OR ERROR FREE; NOR DOES GOTHAM WEB OR ANY OF ITS INFORMATION
PROVIDERS, LICENSERS, EMPLOYEES, OR AGENTS MAKE ANY WARRANTY AS TO THE
RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS DISTRIBUTED
ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE,
OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION,
RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS SERVICE
AGREEMENT. NEITHER GOTHAM WEB NOR ANYONE ELSE INVOLVED IN CREATING,
PRODUCING OR DELIVERING THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE
SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY.
CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE PROVISION OF THIS PARAGRAPH SHALL
ALSO APPLY TO ALL THIRD PARTY CONTENT AND ANY OTHER CONTENT AVAILABLE
THROUGH THE SERVICE.
6.
This Service Agreement is made in New York, and shall be governed by and
construed in accordance with the laws of the United States of America
and of the State of New York. Any cause of action of customer or its designated
users with respect to the Service Agreement must be instituted within
one year after the claim or cause of action has arisen or be barred.
7.
Copyrighted material must not be placed on Customer’s account without
the permission of the owner(s) or person(s) they specifically authorize.
Only the owner(s) or such authorized person(s) may upload copyrighted
material to the account.
8.
Customer agrees not to publish on or over its account any information,
software or other content which violates or infringes upon the rights
of any others or which knowingly contravenes the laws of any jurisdiction
in which such content is generally accessible.
9.
Use of illegal or copyright material on any web page or other distribution
mechanism used in conjunction with the Customer’s account, will result
in termination of this Service Agreement. Illegal material is defined
as any material not permitted under United States local, state or federal
laws. If "illegal material" was submitted by a client of the
Customer without Customer’s knowledge, this Service Agreement will
remain in effect if the Customer removes the "illegal material."
10.
Any use of Gotham Web’s systems that disrupts the normal use of the
system for other Gotham Web customers is considered to be abuse of Gotham
Web services and is grounds for termination of this Service Agreement.
Some examples of abuse include spawning dozens of processes, consuming
large amounts of memory or CPU cycles for long periods of time, attempting
to access other Customers’ account areas, or conducting provocative
activities such as mass emailings which may result in retaliatory actions
against Gotham Web’s systems.
11. Gotham
Web Services has a zero tollerance for SPAM (unsolicited email advertising).
Customers sending out unsolicited commercial email or advertising their
site with use of unsolicted email will be subject to immediate account
termination.
12.
Depending upon the nature and severity of any abuses, the Customer may
receive an E-mail warning detailing the nature of the abuse. If the abuse
of services is not terminated within two (2) days, a certified letter
will be sent to the customer formally requesting termination of the stated
abuse. Customer then must terminate stated abuse within two (2) days,
otherwise the Service Agreement will be terminated. Any reconnection of
a terminated account will require a reconnection fee.
13.
It is in Gotham Web’s sole discretion to terminate the Service Agreement
immediately with written notification. Such written notification may be
via email or via fax 15 days prior to the next billing period.
14.
Customer shall pay the monthly Maintenance Fee, and any charge for additional
services under the terms of this Service Agreement, upon receipt of invoice.
Invoice may be sent by email or by letter. Customer may not withhold or
"setoff" any amounts due hereunder. Gotham Web retains the right
to withhold service without prejudice until all amounts determined delinquent
are paid in full. Any late payment shall be subject to any costs of collection
(including but not limited to legal fees).
15.
Customers choosing to pay by credit card will have their card automatically
charged between the 20th and the last day of the month.
Accounts
past due will be disabled (including web, FTP and email services) and
subject to a $15 late fee.
16. Any Customer whose services are terminated or suspended will be asked
to pay a reconnection fee to restart the account.
17. There will be a $25.00 service charge for each returned check.
18. Legal notices sent to either party shall be effective when delivered
by mail, transmitted by telecopier ("fax") machine, one (1)
day after being sent by overnight mail or "fax", or two (2)
days after being sent by first class mail postage prepaid to the address
shown.
Gotham Web Services, Inc
P.O. Box 1188
Old Chelsea Station
New York, NY 10011
FAX: 1-646-827.3425
19. Customer retains the right to cancel use of Gotham Web’s Service
through written faxed notification.
Requests for cancellation must be received by Gotham Web Services, Inc
30 (thirty) days before the next billing date. All Gotham Web accounts
must be paid in full before the cancellation transaction will be considered
complete. Gotham Web Services will not issue a refund for unused time.
20. Gotham Web acknowledges and agrees that in the course of dealings
with Customer, it may acquire information about Customer, its business
activities and operations, its technical information and trade secrets,
of a highly confidential and proprietary nature. Gotham Web agrees that
title to all such information and related materials shall remain with
the Customer. All applicable copyrights, trade secrets, patents and other
intellectual and property rights in such information and related material
are and remain in the property of the Customer. All other aspects of the
information and related material, including without limitation, technologies,
procedures, programs, methods of processing, all source code, conversions,
enhancements, databases, templates, specific design and structure of individual
programs and their interaction and unique programming techniques employed
therein as well as screen formats shall remain the sole and exclusive
property of the Customer and shall not in any way be sold, revealed, disclosed
or otherwise communicated, directly of indirectly, by Gotham Web to any
person, company or institution whatsoever other than for the purposes
set forth herein. It is expressly understood that no title to or ownership
of such information or any part thereof is hereby transferred to Gotham
Web.
21. Any customer lists and/or other information concerning the Customer’s
clients are the sole and exclusive property of the Customer. Gotham Web
shall not for any reason whatsoever, directly or indirectly, solicit the
trade business of any of the clients or prospective clients of the Customer
with respect to any of the services, products, trade secrets or other
matters of the Customer. In addition to maintaining confidentiality of
all matters as imposed herein above, Gotham Web agrees to keep in the
strictest of confidence any information acquired by Gotham Web during
the course of its dealings with the Customer about any of the Customer’s
clients, including but not limited to contents of related databases, credit
and credit card information.
22. Nothing contained herein shall be construed to place the parties (Customer
and Gotham Web) in a relationship of partners, agents or joint ventures.
Neither party shall represent itself as the agent or legal representative
of the other party for any purpose whatsoever and shall have no power
to obligate or bind the other party in any manner whatsoever.
23. If any clause herein shall be found to contravene any law or ordinance
in whole or in part, it shall be severed from the Agreement. The balance
of the Agreement shall continue in full force and effect.
24. Each party (Customer and Gotham Web) to this agreement represents
that it has all necessary rights and authority to enter into the terms
of the Agreement and is in compliance with all federal, state and local
laws governing this transaction.
25. Gotham Web Services, Inc is not responsible for files and data residing
on Customer's account. Customer agrees to take full responsibility for
files and data transferred and to maintain all appropriate backups of
files and data stored on Gotham Web servers. Gotham Web's tape back-up
system is in place primarily as a disaster recovery system in case of
a server crash or some similar catastrophe and should not be relied upon
as Customer's sole source of backup protection. Restores from backups
NOT CAUSED by server crash or similar catastrophe will be billed at a
rate of $30 per file restored.
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