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The following agreement is between Talk-PC, Inc., (here forth known as "Talk-PC"), an Indiana Corporation, and you (here forth know as "CLIENT").
WHEREAS, Talk-PC is an Internet presence provider, using third party services which whom are connected to the Internet. These third parties offer data storage and transfer services over the Internet through access to its equipment;
WHEREAS, Client seeks to utilize Talk-PC's third party services, equipment and software for its own purposes;
WHEREAS, the parties acknowledge that the Internet is neither owned nor controlled by any one entity; therefore, Talk-PC can make no guarantee that any given person on-line shall be able to access any one of Talk-PC's third party web servers at any given time. Talk-PC represents that it shall make a good faith effort to ensure that the chosen equipment is available as widely as possible and with as little service interruption as possible all dependent upon its third parties;
NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows;
I. Age of Majority:
Talk-PC cannot accept agreements and payments from persons under the age of 18 years. Therefore, Talk-PC requires that its agreements be made with a person who is walified to contract. As such, the CLIENT must be over the age of 18 years. Otherwise, a parent or guardian must accept this agreement and ensure the proper payment.
II. Financial Arrangements:
1. Client agrees to a minimum three (3) month contract, beginning upon Talk-PC's receipt by fax, postal mail or e-mail of client's order.
2. If the Client chooses a three (3) month plan, then three months of hosting service at .95 per month, plus a one-time setup fee of .00 is due upon initial order; this 3 month fee totals .85. If the Client chooses a six (6) month plan, then six months of hosting service at .95 per month, plus a one-time setup fee of .00 is due upon initial order; this 6 month fee totals .70. If the Client chooses a twelve (12) month plan, then twelve months of hosting service at .50 per month, plus a one-time setup fee of .00 is due upon initial order; this 12 month fee totals .00. If the Client chooses a twenty-four (24) month plan, then twenty-four months of hosting service at .95 per month, with no setup fee, is due upon initial order; this 12 month fee totals .80.
3. This agreement will automatically renew for the same successive period(s) specified by the client on the initial order. This agreement will renew every 3, 6, 12 or 24 months unless canceled in writing at least 15 days prior to the renewal date. Renewal of services by Client indicates agreement to Contract revisions.
III. Taxes:
Talk-PC shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from Client or Talk-PC's third party equipment. Client agrees to take full responsibility for all taxes and fees of any nature associated with such products sold.
III. Material and Products:
Client will provide Talk-PC with material and data in a condition that is "server-ready", which is in a form requiring no additional manipulation on the part of Talk-PC. Talk-PC shall make no effort to validate this information for content, correctness or usability.
IV. Competency
Use of Talk-PC's third party services require a certain level of knowledge in the use Internet languages, protocols, and software. This level of knowledge varies depending on the anticipated use and desired content of Client's Web space by the Client.
The following examples are offered:
Web Publishing: requires knowledge of HTML, properly locating and linking documents, FTPing documents, creating graphics, text, sound, image mapping, etc.
CGI-Scripts: requires a knowledge of the UNIX environment, TAR & GUNZIP commands, Perl, C Shell scripts, permissions, etc.
E-mail: a knowledge of POP3 service, mail forwarding, use of mail clients to receive mail, etc.
The Client agrees that he or she has necessary knowledge to create utilize Talk-PC's third party services without reliance on Talk-PC. Client agrees that it is not the responsibility of Talk-PC to provide this knowledge or Customer Support outside of the defined service of Talk-PC.
V. Content
1. Talk-PC will exercise no control whatsoever over the content of the information passing through the network. Talk-PC makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. Talk-PC also disclaims any warranty of merchantability or fitness for particular purpose and will not be responsible for any damages that may be suffered by the Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the Client. Use of any information obtained by way of Talk-PC is at the Client's own risk, and Talk-PC specifically denies any responsibility for the accuracy or quality of information obtained through its services. Connection speed represents the speed of a connection to and does not represent guarantees of available end-to-end bandwidth. Talk-PC expressly limits its damages to the Client for any non-accessibility time or other down time to the prorated monthly charge during the system unavailability. Talk-PC specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
2. In the event that any particular clients' material is not "Server-ready", Talk-PC may, at its option and at any time, reject this material, including but not limited to after it has been put on Talk-PC's third party webservers. This includes Talk-PC's right to disable such non-"Server-ready" materials, such as CGI scripts or programs which consume an unreasonable amount of CPU (Central Processing Unit) usage or RAM (Random Access Memory) as determined by Talk-PC. Talk-PC may also at its discretion at any time, suspend access to any client's website without notice, due to over-consumption of bandwidth (exceeding 17,000MB/day transfer), CPU usage, or any other reason which might effect the performance of Talk-PC third party services. Talk-PC agrees to notify Client immediately of its refusal of the material and/or suspension of the account and afford Client the opportunity to amend or modify the material to satisfy the needs and/or requirements of Talk-PC. If the Client fails to modify the material, as directed by Talk-PC, within a reasonable period of time established by Talk-PC, the Agreement shall be deemed to be terminated.
VI. Acceptable Uses
Client agrees to the terms of the Acceptable Uses Policy, included in this document by this "link".
VII. Trademarks & Copyrights:
Client warrants that it has the right to use the applicable trademarks, if any, and grants Talk-PC the right to use such trademarks in connection with Talk-PC's third party services. This includes the right granted by Client to Talk-PC to advertise the Client in conjunction with Talk-PC's third party services.
IIX. Hardware, Equipment & Software:
The customer is responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access Talk-PC. This equipment includes a personal computer equipped with a 2400 baud modem or faster, Internet access via an ISP ("Internet Service Provider"). Talk-PC makes no representations, warranties or assurances that the Customer's equipment will be compatible with the Talk-PC's third party services. Client understands that Talk-PC is not an ISP and therefore will not provide dial-up Internet access for the Client.
X. Internet Etiquette:
Electronic forums such as mail distribution lists and UseNet news groups all have expectations regarding subject area and appropriate etiquette for posting. Users of these forums should be considerate of the expectations and sensitivities of others on the network when posting material for electronic distribution. The network resources of Talk-PC may not be used to impersonate another person or misrepresent authorization to act on behalf of others or Talk-PC. All messages transmitted via Talk-PC should correctly identify the sender; users may not alter the attribution of origin in electronic mail messages or posting. Users must not attempt to undermine the security or integrity of computing systems or networks and must not attempt to gain unauthorized access.
XI. Service Guarantee
Talk-PC will extend a 30 day conditional money-back guarantee to Client if Client purchased Talk-PC's virtual server hosting service. This service guarantee shall begin upon the setup of Client's account and shall expire thirty days later. Client has the right to cancel his/her contract with Talk-PC by providing written notice to Talk-PC stating the Client's intent to cancel within their 30 day period. The written cancellation notice shall entitle the Client to a refund of any monies paid less any setup fees incurred.
1. Service Related
Client must cancel his/her account with Talk-PC due to interruption in service only. This includes "downtime", power outages resulting in the inability of Talk-PC to provide the service promised, or errors within the software provided and verified by Talk-PC.
2. Limitations
Client is not entitled to any sort of refund due to ignorance of Talk-PC's underlying service or payment policies. This includes, but is not limited to, cancellation because of a three month minimum payment upfront, Talk-PC not providing dial-up Internet access, problems registering or transferring any domain, U.S. top-level or foreign, getting programs (CGI scripts) or features (search engines, guest books, etc.) working on the Client's account. Accounts sold through any of Talk-PC's resellers or their resellers are not eligible for a refund of any services under the money-back guarantee. Client may not be entitled to any sort of refund because he/she had violated any one of the seven restrictions outlined in the acceptable uses policy above, even if the Client provided written notice within 30 days for a service-related reason. Client will not be entitled to a refund for cancellation due to the fact that he/she did not read our acceptable uses and later learned that his/her content violates our acceptable uses. Acts of God, including but not limited to, earthquakes, thunderstorms, or fires which result in an interruption in service are exempt from the service guarantee. Because these circumstances are beyond the control of Talk-PC, the service guarantee will be void under these conditions. However, Talk-PC will make every good faith effort to reinstate service to Client as quickly as possible.
XII. Termination:
This Agreement may be terminated by either party, without cause, by giving the other party 30 days written notice. Notwithstanding the above, Talk-PC may terminate service under this Agreement at any time, without penalty, and collect any termination fees as outlined above if the Client fails to comply with the terms of this Agreement.
IIXV: Reseller Agreement
If at any time Client chooses to take part in Talk-PC's reseller program, then client agrees not to hold Talk-PC liable for any and all misfortunes relating to the underlying service provided. Resellers of Talk-PC are not agents, employees, or contractors of Talk-PC. Client agrees to take responsibility for the technical support of his/her clients. Client agrees to be responsible for the registration of any domain name(s) requested by his/her clients.
IXV. Limited Liability:
1. Client expressly agrees that use of Talk-PC's third party equipment is at Client's sole risk. Neither Talk-PC, its employees, affiliates, agents, third party information providers, resellers or the like, warrant that Talk-PC's service will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through Talk-PC, unless otherwise expressly stated in this Agreement.
2. Under no circumstances, including negligence, shall Talk-PC, its offices, agents or any one else involved in creating, producing or distributing Talk-PC's third party services be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use of Talk-PC's service; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to Talk-PC's records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on Talk-PC's third party Server service.
3. Notwithstanding the above, Client's exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate dollar amount which Client paid during the term of this Agreement and any reasonable attorney's fee and court costs.
XV. Indemnification:
Client agrees that it shall defend, indemnify, save and hold Talk-PC harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees, ("Liabilities") asserted against Talk-PC, its agents, its customers, resellers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Talk-PC against Liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed in connection with Talk-PC's equipment; (ii) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective product which Client sold using Talk-PC's third party services.
This agreement represents the complete agreement and understanding between Talk-PC and the Client and supersedes any other written or oral agreement. Upon notice published on-line via Talk-PC, Talk-PC may modify these terms and conditions, amplify them, and/or modify the prices, as well as discontinue to change the services offered. Submission of your account order shall constitute your complete acceptance of these Terms and Conditions.
This Agreement shall be governed and construed in accordance with the laws of the State of Indiana and of the Internet.
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