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WHEREVER:
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- The Company or Individual is hereinafter known as a "Client".
- FirstLink Technology, Inc. is hereinafter known as the "Company".
- The Client desires to contract services from the Company.
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NOW, THERFORE, in consideration of the foregoing, the mutual covenants and agreements contained herein, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
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Service Description
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FirstLink Technology, Inc. (from now known as "The Company") provides access to dedicated server, web, email, news and secure servers, and various server applications, to the Internet and a gateway through which the client transfers data. The Company provides technical services and consulting, hourly or by contract. The Company provides high capacity, dedicated and shared network circuits. With a subsidiary, the Company offers analog, ISDN dialup and DSL connections to the Internet for a fee. For these services, the Company charge fees. The Agreement consists of computing and communications services, software, databases, data, information, consultation, Internet development and maintenance, and all other material (collectively "information") available through the Company. The Company 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. The Company shall use reasonable efforts to notify the Client of any planned changes to the Company's network or facilities that may adversely affect the Services provided hereunder.
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Duties of the Company
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The Company will endeavor to provide high quality service to the Client. The Company will respond to e-mail inquiries within one business day of receipt. The Company will handle more complex inquiries, or situations that can not be handled by e-mail, by phone Monday through Friday 8:30 to 5:30 MST. The technical support phone number is 303-691-8201 and should be used for system network failure after hours. Use of the emergency system inappropriately will result in a fee.
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The Company may acquire, on request of Client, services from a third party vendor on behalf of the Client. In such case the Client hereby waive any and all claims which it may have against the Company for any loss, damage, claim or expense arising out of, or in relation to, the services following the termination of services by the Company for any reason. Any costs of the Company from the third party vendor for the Client shall be immediately reimbursed to the Company upon receipt of an invoice to Client.
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The Company will utilize its best efforts to maintain acceptable performance of services, but the Company makes no warranties whatsoever, expressed or implied, including warranty of merchantability or fitness for a particular purpose. As a result, Client agrees that the Company shall not be liable to Client or any of its Clients for any claims or damages which may be suffered by Client or its Clients, including but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-deliveries, or service interruptions whether or not caused by the fault or negligence of the Company. Client agrees to indemnify and hold harmless the Company from any and all claims, suits or judgments of whatever nature brought against or obtained against the Company as a result of services provided. The service is distributed on an "as is" basis without warranties of any kind, either expressed or implied, including but not limited to warranties of title or implied warranties of merchant ability 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 the client agreement. The client agrees that it will not hold the Company responsible for any selection of or retention of, or the acts or omissions of, third parties in connection with the service (including those with which the Company contracts to operate various areas on the service).
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Duties of the Client
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The service may be utilized only for lawful purposes, and the usage of the service in connection with or adjunct to any matter or thing, which violates any foreign, municipal, state, county or federal statute or regulation is prohibited. The Client agrees they, or any third party for which they are responsible, will not use the services in violation of the law or aid in any unlawful act. The Client agrees they, or any third party for which they are responsible, will not use, or attempt to use, the services to access, alter or destroy any information of another by any fraudulent means or device. The Client agrees they, or any third party for which they are responsible, will not use the service to interfere or disrupt other network Clients, network services or network equipment, intentionally or not; disruptions include but are not limited to distribution of unsolicited advertising or chain letters, violations of USENET news etiquette, propagation of computer worms or viruses, and using the network to make unauthorized entry in to any other machine accessible via the network. The Client shall be solely responsible for the content of any transmissions over the Internet by the Client or any third party using the Client's facilities.
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The Client agrees to indemnify and hold harmless the Company from and against any and all claims, actions, causes of actions, administrative or government action, losses or damages (including legal fees and expenses) arising from the usage by Client and/or Client's clients of the service in violation of this agreement.
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In no event shall the Company be liable for any indirect, incidental, special or consequential damages, or loss of profits, revenue, data or use, suffered by Client or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if the Company has been advised of the possibility of such damages. In no event will the Company's liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by Client 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, so that the above limitations or exclusions may not apply to Client. In such jurisdictions, the Company'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.
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In the event that the Company, at any time, reasonably believes that the service is being utilized by the Client or the Client's clients in contravention of the terms and conditions of this contract, the Company may, at its sole discretion, immediately discontinue such service to Client or any of Client's clients as the case may be, without liability other than for the refund of unearned prepaid service fees.
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Client shall, at their own expense, provide all necessary preparations required to comply with the Company's installation and maintenance specifications and shall be responsible for the costs of relocation once services are initiated. Client agrees to use the trademarks and copyrighted material of the Company as is. The Client is not permitted to use the Company information under his/her own name. Client warrants that he/she has the right to use any trademarks or copyrighted material appearing on their websites. Neither Client nor any of its designated Clients may reproduce, redistribute, retransmit, publish or otherwise transfer or commercially or personally exploit, any proprietary information which they receive through the Company except in writing and signed by a duly authorized representative of the Company.
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Client agrees to the rates and billing procedures as set forth. Unless otherwise specified, the contract length is month to month. The Client agrees to provide a thirty (30) day notice before canceling service. Cancellations must be made in writing via mail, e-mail or fax. The Company reserves the right to change the rates and otherwise modify this agreement upon ten (10) days notice. Use of the Company's services on or after the effective date constitutes acceptance of the new terms and conditions. Other registration and overages charges could apply. The Company may occasionally require new registration and account information from you to continue the service. Clients must notify the Company of any changes in account information.
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The Client agrees not to upload, post or otherwise publish on or over the Service, and not to seek on or over the Service, any software, file, information, communication or other content: a.) Which violates or infringes upon the rights of any other, b.) Under the circumstances and in the Company's good faith judgment, is likely to be perceived by an intended recipient or targets defamatory, deceptive, misleading, abusive, profane, pornographic, offensive or inappropriate, c.) Is unsuitable for minors, d.) Constitutes a threat to, harassment of or stalking of another, e.) Adversely affects the performance or availability of the Company resources, f.) Contains any virus, worm, cancelbot, harmful component or corrupted data, or g.) Without the approval of the Company, contains any advertising, promotion or solicitation of goods or services for commercial purposes. Client acknowledges that The Company will not be required to edit or review for accuracy or appropriateness any content within the Service. The Client is responsible for its content residing on the Company servers, and except as otherwise agreed with the Company for the backup thereof.
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Payments and Terms
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This Agreement shall be for the term specified by the Client on the Proposal, as applicable (the "Initial Term"). This Agreement will be automatically renewed, at the end of the Initial Term, on a month-to-month basis unless either party provides thirty (30) 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 month-to-month extensions thereof are collectively referred to herein as the "Term" of this Agreement.
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Terms of payment for all recurring monthly billing charges are, net (30) thirty days in the currency in which billed. Terms of payment on all new charges are, due on receipt in the currency in which billed. After the thirty (30) day period, late charges of ten dollars ($10.00) or one point five percent (1.5%) per month, whichever is greater shall be due and payable. In the event of non-payment, all costs associated with collection, including reasonable attorney's fees, shall be added to the unpaid balance. Client checks returned to Company as uncollectible are subject to a fee of twenty five Dollars ($25.00) in addition to the amount of the original check. Payment of the amount owed to Company, including the Twenty Five Dollar ($25.00) fee, will be paid to Company in the form of cash, money order or cashier's check only. Payment is to be made in such event, no later than twelve days from the date Company notifies Client of such delinquent check. If any payment due is not made by the Client within forty-five (45) days after the invoice date the Company will suspend its performance under this agreement until such time as the charges due are paid. Delinquent accounts over sixty (60) days will be terminated and subject to a reinstatement fee. The Client agrees to pay all costs including all attorneys' fee in the collection of outstanding accounts.
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All Clients must prepay their monthly fees, whether or not an invoice is received. Charges for any additional services added to the Client's account will be invoiced on the day of activation for that service, prorated through the month. All hourly services, including but not limited to technical support, application development and training, will be payable one-half up front and one-half upon completion of the project. Company shall be reimbursed for, including but not limited to, contracted expenses incurred on behalf of the client or usage overage fees on the account. Such expenses will be invoiced and due upon receipt when incurred. Sets up fees are payable before the account is activated and are non-refundable. Rates are determined by the Company and are subject to change. Use of services after receiving the increase notification will constitute acceptance of the new fees by the Client.
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Client shall pay, in accordance with the provision of the billing option selected by the Client, including but not limited to any registration or monthly fees, connect time charges, minimum charges and other charges incurred by the Client or it's designated Clients at the rates in effect for the billing period in which those charges are incurred, including by not limited to charges for purchasing through other services and/or other surcharges incurred while using supplemental networks or services other than the Company. Such fees may include taxes, long distance fees, toll charges, fees or assessments by governmental agencies and the Company shall have the right, at any time, to pass through and invoice to the Client any new or increased taxes, fees, assessments or other charges imposed on or required to be collected by the Company by any governmental agency.
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The Company reserves the right to refuse any application or cancel any membership with a full refund of unused fees, not including set up fees, at our sole discretion and without prior notice. The Company reserves the right to revoke usage or remove content from the Company site or server at any time for any reason, and without notice to the Client if unlawful practices are discovered. Should the Company terminate the service pursuant to this agreement and provide proper notification, the Client has no rights to request any copies of data or material available on the server. Upon termination of this agreement, all data or material stored on the Company's facilities will be erased without prior notification.
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In the event Client's account becomes past due, or is otherwise deemed insecure, the Company may, in its sole discretion, suspend, interrupt or disconnect the Services. In the event of such suspension, interruption or disconnection, Client may be required to post a deposit or such other security, as the Company deems necessary in order to resume receiving the Services. In addition, if the Company in its sole discretion, deems Client to be financially insecure, the Company may require such other action of Client, including letters of credit, security deposit(s), restrictions on available credit or other action as the Company may require from time to time regardless of Client's then-current status or payment history. Failure to satisfy the Company's request for such action within timelines set by the Company may result in immediate termination of service without further notice.
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The Client may terminate this Agreement by giving the Company at least thirty (30) days prior written notice. However, the Client remains obligated to pay all amounts remaining in the Initial Term, and if the Company has purchased equipment on behalf of the Client, including but not limited to circuit and router, the Client shall assume responsibility for payments for such equipment, until paid in full. Any termination by the Company or Client shall not relieve Client of any obligations to pay fees accrued prior to such termination.
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Liability Indemnification
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The Client agrees that the use of the Company's server is at their own risk. The Company does not warrant that its services will not be interrupted or error free. The Company is not liabile for third parties charges that the Client may incur to use the Companies services. Such fee's may include toll charges, long distance fee's or other taxes or fee's assesed by the Government. The Company does not make any warranty as to the results that may be obtained from the use of the server services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through the Company server, unless otherwise expressly stated in the Client agreement.
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Under no circumstances, shall the Company be liable for any direct or indirect damages that result from the use of or inability to use the Company server; 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 the Company's records, programs or services.
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Notwithstanding the above, Client's exclusive remedies for all damages, losses and causes of action, including negligence, shall not exceed the aggregate dollar amount which the Client paid during the term of this agreement.
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The Client Services shall be performed entirely at the risk of Client, and Client agrees to indemnify and hold the Company harmless from and against any and all claims, costs, litigation, judgments, awards, damages, injuries, losses, debts, obligations, actions, proceedings or liability of whatever nature, arising out of or in connection with any willful misconduct or negligent act or omission of Client, or their directors, officers, employees, agents or representatives in the performance of obligations under this contract. The provisions of this section shall survive the termination or other expiration or cancellation of this Agreement.
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Client will indemnify, save harmless, and defend the Company and all directors, officers, employees, and agents of the Company (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 Client, including any violation of the Company's 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, tortuous interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.
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Materials and Products
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Client will deliver material and products to the Company server in a form that requires no manipulation on the part of the Company to be delivered to the Internet, or server-ready form. The Company shall make no effort to validate the material and products for content, correctness or usability.
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Use of the Company's service requires knowledge of Internet languages, protocols and software. The skill level required varies depending on the use and content of the Client's website. Web page design requires knowledge including but not limited to HTML, linking documents, FTPing and graphic placement. CGI programming and database management requires knowledge including but not limited to UNIX environment, online editors, Perl or C++ language, SQL and permissions. The Company can provide these services to the Client upon written agreement of the terms and costs.
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In the event that material or products are delivered to the Company server in non server-ready form, the Company will not be responsible for making the material or products server-ready. If the material or products are impeding the functionality of the Company server, in any way, the Company has the right to deactivate the material or product from the server. The Company will notify the Client immediately of the deactivation and give the Client the opportunity to amend or modify the material to satisfy the needs and/or requirements of the server. If the Client fails to modify the material, within a reasonable time period decided by both parties, the material will be removed.
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Survival of Obligations
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The restrictions and obligations of this Agreement shall survive any expiration, termination, or cancellation of this Agreement, and shall continue to bind Client, and Client's successors, personal representatives, heirs and assigns.
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Attorneys' Fees and Costs
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If an action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary expenses, in addition to any other relief to which that party may be entitled. This provision is applicable to the entire Agreement.
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Compliance With Laws
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The parties agree that they will comply with all applicable laws and regulations of government bodies or agencies in their respective performance of their obligations under this Agreement.
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Governing Law and Construction
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This Agreement will be governed by and construed in accordance with the laws of the State of Colorado without reference to its conflict of law principals. This Agreement's final form resulted from review and negotiations among the parties, and no part of this Agreement shall be construed against any party on the basis of authorship.
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Entire Agreement
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This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein and supersedes any previous oral or written communications, representations, undertakings or agreements with respect thereto. The terms of this Agreement may be modified only in writing, signed by authorized representatives of both parties. The Agreement is non-assignable by either party.
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