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Dedicated
Server
Agreement
On
Line Corporation
of America
1. Term of Service:
The term of service is defined in Attachment A of this agreement. Online
Corp. will give Customer at least 30 days written notice of any exercise
by Online Corp. of its right to terminate the Agreement.
2. Service Activation:
Minimum time to activate services from the date of contract execution
is 14 calendar days. Under this agreement service begins as of the beginning
date shown on the signature page of this agreement, shall continue for
complete term of service as specified in Attachment A, unless otherwise
specified on the signature page of this agreement.
3. System-Level Support—Not Covered:
Online Corp is not responsible for repairs necessitated by Customer alteration
of equipment or for the repair of unspecified accessories which may be
attached to the equipment. Online Corp shall not be liable for delay in
furnishing or failure to furnish service if, such delay is caused by forces
beyond the reasonable control of Online Corp., or Customer. Warranty terms
shall terminate in the event the system is serviced or modified by any
other person other than authorized Online Corp. personnel.
4. Limitations of Liability:
In no event shall Online Corp. be liable for damages resulting from loss
of data, profits, or for any incidental or consequential damages, even
if advised of the possibility of such damage. This agreement shall be
interpreted under and pursuant to the laws of the State of Pennsylvania.
5. Best Efforts:
Customer and Online Corp., Inc. agree to use their best efforts and cooperate
in the performance of this agreement so that its purpose may be successfully
carried out.
6. Agency:
Customer and Online Corp agree that this Agreement is not intended to
create any agency relationships of any kind; and both agree not to contract
any obligations in the name of the other party and not to use each other’s
credit in conducting any activities under this Agreement.
7. Trademarks:
Online Corp. may include Customer’s name and contact information
in directories of Online Corp. service subscribers for the purpose of
promoting the use of the service by additional potential trading partners.
However, Online Corp. is not authorized to use Customer’s name,
trademarks or other identifying information in any other advertising or
promotional materials without the prior written consent of Customer.
8. Indemnification:
Online Corp SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING
TO: INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS,
EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY CUSTOMER OR THIRD
PARTIES; SERVICE LEVELS, DELAYS OR INTERRUPTIONS OR LOST OR ALTERED MESSAGES
OR TRANSMISSIONS; OR, UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS
OR DESTRUCTION OF CUSTOMER, USERS' OR THIRD PARTIES' APPLICATIONS, CONTENT,
DATA, PROGRAMS, INFORMATION, NETWORK OR SYSTEMS.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ONLINECORP MAKES NO REPRESENTATIONSR
WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION
OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
OR NON-INFRINGEMENT OR ANY REPRESENTATION OR WARRANTY ARISING BY USAGE
OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. THE LIMITATIONS
OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY: (i) REGARDLESS OFTHE
FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE;
AND (ii) WHETHER OR NOT DAMAGES WERE FORESEEABLE. THESE LIMITATIONS OF
LIABILITY SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN
THIS AGREEMENT.
9. Waiver:
Either party’s waiver of, or failure to exercise, any right provided
for in this Agreement shall not be deemed a waiver of any future right
of this agreement.
10. Successors and Assigns:
This Agreement shall be binding on the parties, and on their successors
and assigns, without regard to whether it is expressly acknowledged in
any instrument of succession or assignment.
11. Captions:
The captions of each paragraph of this Agreement are inserted solely for
the reader’s convenience, and are not to be construed as part of
the agreement.
12. Amendment:
This Agreement and attachments constitutes the entire Agreement between
the parties, and supersedes all prior writings or oral agreements. This
Agreement may be amended only by a writing clearly setting forth the amendments
and signed by the party against whom enforcement is sought.
13. Notices:
Notices required by this Agreement shall be in writing and shall be delivered
either by personal delivery or by mail. If delivered by mail, notices
shall be sent by any express mail service; or by certified or registered
mail, return receipt requested; with all postage and charges prepaid.
All notices and other written communications under this Agreement shall
be addressed to the individuals in the capacities indicated below, or
as specified by subsequent written notice delivered by the party whose
address has changed.
14. Severability:
Should one or more clauses of this agreement be held invalid under the
laws of Pennsylvania or the United States, the remaining clauses shall
remain in effect as a whole and binding contract. Online Corp. does not
accept business from organizations selling products or services related
to firearms, or pornography.
14.1 If a party fails to perform or observe any material term or condition
of this Agreement and the failure continues unremedied for thirty (30)
days after receipt of written notice, the other party may terminate or
suspend for cause any Service components affected by the breach. Termination
by either party of an Attachment does not waive any other rights or remedies
it may have under this Agreement. Termination or suspension of services
shall not affect the rights and obligations of the parties under any other
agreement.
14.2 Upon termination of this Agreement and/or any Service Component by
Customer or Online Corp under this Agreement, Customer will be responsible
with respect to each terminated Service Component for payment of all charges
incurred as of the effective date of termination, and except in the case
of termination by Online Corp pursuant this Attachment, payment of the
following Termination Charges: (i) all access facilities termination charges
and other third party charges incurred by Online Corp due to the termination,
and (ii) a termination fee equal to 50% of the scheduled payments for
each Access Service Component, for each of the months remaining in the
applicable Service Period.
15. Entire Agreement
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH
RESPEC TO THE SERVICES. THIS AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS,
PROPOSALS, REPRESENTATIONS, STATEMENTS OR UNDERSTANDINGS, WHETHER WRITTEN
OR ORAL CONCERNING THE SERVICES, OR THE RIGHTS AND OBLIGATIONS RELATING
TO THE SERVICES. THIS AGREEMENT SHALL NOT BE MODIFIED, OR SUPPLEMENTED
BY ANY WRITTEN OR ORAL STATEMENTS, PROPOSALS, REPRESENTATIONS, ADVERTISEMENTS,
SERVICE DESCRIPTIONS OR CUSTOMER PURCHASE ORDER FORMS NOT EXPRESSLY SET
FORTH IN THIS AGREEMENT OR AN ATTACHMENT.
15. Force Majeure
Neither Online Corp nor Customer shall be liable for any delay, failure
in performance, loss or damage due to: fire, explosion, power blackout,
earthquake, flood, the elements, strike, embargo, labor disputes, acts
of civil or military authority, war, acts of God, acts or omissions of
carriers or suppliers, acts of regulatory or governmental agencies, or
other causes beyond such party's reasonable control, whether or not similar
to the foregoing.
17. Payment Terms
Customer shall pay Online Corp for Customer’s and Users' use of
the Services at the rates and charges specified in the Attachments, without
deduction, setoff or delay for any reason. Charges set forth in the Attachments
are exclusive of any applicable taxes.
Online Corp may require Customer to tender a deposit, as determined by
Online Corp in its reasonable discretion. Online Corp will rely upon commercially
reasonable factors to determine the need for and amount of any deposit.
Such factors may include, but are not limited to, payment history, number
of years in business, history of service with Online Corp, bankruptcy
history, current account treatment status, financial statement analysis,
commercial credit bureau rating, commitment levels and anticipated monthly
charges.
Payment is due within thirty (30) days after the date of the invoice and
must refer to the invoice number. Charges will be quoted and invoices
shall be paid in U.S. dollars, except where a particular Attachment provides
for local currency quoting, invoicing and payment.
Customer shall reimburse Online Corp for all costs (including reasonable
attorney fees) associated with collecting delinquent or dishonored payments.
Where payments are overdue, Online Corp may assess interest charges at
the lower of 1.5% per month (18% per annum) or the maximum rate allowed
by law.
Customer must provide written notice to Online Corp specifically identifying
all disputed charges and the reason for nonpayment, within six (6) months
after the date of the affected invoice, or else Customer waives the dispute.
Payment of such disputed charges will not be considered overdue pending
investigation by Online Corp, provided that nothing herein shall absolve
Customer from promptly paying all undisputed charges and submitting reasonable
security for payment of any withheld amounts upon demand by Online Corp.
Payment of any disputed charges that are determined by Online Corp to
be correct as a result of such investigation must be paid within fifteen
(15) days of Online Corp’s notice to Customer. If Customer fails
to pay within that timeframe or if Online Corp, in its reasonable judgment,
determines that Customer’s dispute was without reasonable basis
and in bad faith, then Online Corp may assess interest charges calculated
from the date that payment was originally due, at the lower of 1.5% per
month (18% per annum) or the maximum rate allowed by law, plus reasonable
attorneys’ fees. Should an account be suspended for non-payment
a $250.00 reinstatement fee will apply.
© Copyright 2004 On Line Corporation of America All
rights Reserved
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