1. SERVICE DESCRIPTION: As a World Wide Webservice provider, 1stcom provides Internet web hosting, ecommerce, and associated servicesand maintains a network of dedicated server computers, routers, hubs, switches, otherequipment and software (collectively, the "Network") which is integratedwith the Internet. This Network sends and receives data and information in relationship tothe World Wide Web. Customer wishes to connect to the World Wide Web utilizing thehardware and software resources of 1stcom to establish an Internet web presence using1stcom's Network.
2. CONDITIONS: The application and thisAgreement constitute a legal and binding contract between 1stcom and the Customer and doesnot extend to any other person or entity. Customer may resell to third parties but isresponsible for third party activities and content, and is bound by the terms under thisAgreement. Cancellations after the application is received and webspace is set-up willstill hold the Customer responsible for costs incurred by 1stcom concerning the set-up ofthe web space. All cancellations shall be in writing and delivered via postal mail or facsimile email to the sales department of 1stcom.
3. WARRANTIES: With respect to the services tobe provided herein, the Customer acknowledges that 1stcom makes absolutely no warrantieswhatsoever, express or implied. As a result, the Customer agrees that 1stcom shall not beliable to the Customer for any claims, damages or loss of profit which may be suffered bythe 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 theresult 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 by1stcom is at the Customer's sole and absolute risk. 1stcom specifically disclaims anddenies any responsibility for the completeness, accuracy or quality of informationobtained through the services to be provided hereby.
5. DOMAIN NAME: If 1stcom shall acquire anInternet Domain Name on behalf of the Customer, then in such case the Customer herebywaives any and all claims which it may have against 1stcom, for any loss, damage, claim orexpense arising out of or in relation to the registration of such Domain Name in anyon-line or off-line network directories, membership lists or registration lists, or therelease of the Domain Name from such directories or lists following the termination of theproviding of this service by 1stcom for any reason.
6. PAYMENT: The set-up fee, Internic Fee andfirst payment are due at the time the on-line application and Agreement are filled out,and electronically returned to 1stcom. Subsequent payments are due according to theselected fee schedule following the establishment of the web space or service on theInternet. Web space and services will be billed a minimum of one (1) month in advancedepending on the selected fee schedule. Subsequent payments are due on the anniversary dayof each month as per the selected fee schedule. In the event that the Customer fails topay for such services in advance, 1stcom shall be entitled to unilaterally terminate thisAgreement and discontinue the service until payment is made. We also reserve the right to charge a $1.00 fee for any declined charges.
7. UNILATERAL SERVICE REVOCATION: In the event that 1stcom may at any time believe that the service is being utilized for unlawfulpurposes by the Customer or in contravention with the terms and provisions herewith,1stcom may immediately discontinue such service to the Customer without liability. This will include failure to pay, adult content, use of programs that 1stcom would consider asecurity risk to other domains on said server, and/or unsolicited email (spam) or the use of spam to advertise sites hosted on 1stcom servers. Additionaly we reserve the right to charge $8 per unsolicited email sent.
8. INDEMNIFICATION: The Customer shall indemnifyand hold harmless 1stcom from any and all loss, cost, expense, and damage on account ofany and all manner of claims, demands, actions, suits, proceedings, judgements, costs andexpenses that may be initiated against 1stcom and 1stcom's officers, directors, andemployees for any service provided to Customer by 1stcom to include web space content thatviolates any copyright, proprietary right of any person, state and federal regulations, orcontains any matter that is libelous or scandalous.
9. CHANGES IN TERMS OF AGREEMENT: 1stcomreserves the right to make changes to the terms and conditions of this Agreement at anytime, and to the on-line application to include service pricing, advising of the changeand the effective date thereof, but with changes in service fees being effective only atthe end of any period for which the Customer has prepaid. Utilization of the service bythe Customer following the effective date of such change shall constitute acceptance bythe Customer of such change(s).
10. ENTIRE AGREEMENT AND UNDERSTANDING: This instrument and the application for web space and services constitute the entire agreementbetween the parties, and represents the complete and entire understanding of the partieswith respect to the subject matter of this Agreement.
11. RELATIONSHIP: The parties hereto areindependent entities and nothing contained in this Agreement shall be construed toconstitute Customer an agent, employee, partner, independent contractor, joint venturer,or any other similar entity.
12. GOVERNING LAW: This Agreement shall begoverned by the laws of the State of Michigan in the United States of America. Each partyagrees that jurisdiction and venue for any and all claims, disputes or other mattersarising out of the services provided herein and under this Agreement will only lie inOakland County, Michigan. If any action at law or in equity is brought to enforce orinterpret the provisions of this Agreement and services provided herein, the prevailingparty in such action shall be entitled to all reasonable costs to include attorney fees.
13. SEVERABILITY: In the event that any term orprovision 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 ofthis Agreement shall remain in full force and effect.
14. CONFIDENTIALITY: Customer acknowledges thatany information not generally known by or disclosed to the public to include but notlimited to computer programs, source code, algorithms and inventions are the property of1stcom and may not be utilized or released without the express written permission of1stcom.
15. INTERPRETATION: The format, words andphrases used herein shall have the meaning generally understood in theTelecommunicatons/Software/Internet Industries. This Agreement shall be construed inaccordance 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 agreementscontained herein, do hereby execute this instrument, with each party warranting theirability to enter into this Agreement for the person or entity herein named as a partyhereto. By filling out the on-line application directly or by placing an ordertelephonically and/or clicking on "Accept" below, Customer agrees to all theterms and conditions of this Agreement.