| By
signing the Directory One Inc. Hosting Contract you agree to pay
for one full year of hosting (the monthly or yearly fee being
determined by your level of service as indicated above). Customers
receive a 10% discount if the year's bill is paid in full at the
beginning of the term.
New customers will
be billed in 9 installments. The first installment is due upon
signature of this agreement and consists of the 1st,
10th, 11th and 12th month of
this contract. Thirty days from this date monthly billing will
begin. Eight additional monthly payments will be due over an 8
month period. A one time 5.0% late payment charge may be assessed
if current charges are over 30 days past due.
Directory One will
not refund any deposits or payments once seven days have passed.
This agreement is legally binding seven days from the signing
of this agreement.
If Directory One
does not receive notice of cancellation, Directory One will continue
to provide hosting and bill appropriately. You will not need to
resign a contract, but will be responsible for paying month-to-month
bills in a timely manner.
Directory One, Inc.
reserves the right to terminate service for any but not limited
to the following reasons: web sites considered to be of pornographic
nature by Directory One, Inc., web sites involved in domain name
disputes, failure to pay for services on time, solicitation or
selling of illegal products or services, or sending unsolicited bulk email (spam).
Terms of Agreement
1. PRICES
A. All prices for
Plans provided by DIRECTORY ONE, INC. to Customer are U.S. dollars.
B. Customer shall be responsible for paying all taxes of any
nature which become due with regard to DIRECTORY ONE, INC. services,
except for taxes on DIRECTORY ONE, INC.'s income, irrespective
of which party may be responsible for reporting or collecting
such taxes.
2. ORDER ACCEPTANCE,
PAYMENT
A. All orders are
subject to acceptance by DIRECTORY ONE, INC.. An order will
be deemed accepted by DIRECTORY ONE, INC. when written
confirmation of the order is sent to Customer. DIRECTORY
ONE, INC. may refuse to accept any order, or delay acceptance pending
fulfillment of conditions DIRECTORY ONE, INC. may choose to
impose. Such refusal or such conditions may not be unreasonable,
however, and DIRECTORY ONE, INC. agrees to provide Customer
with reasonable notice via Email or fax of any intent to delay
or decline the acceptance of any order.
B. Payment and Terms: Payment shall be made in US dollars to
DIRECTORY ONE, INC. using the method designated by DIRECTORY
ONE, INC., or as may otherwise be agreed in writing by
the parties. Payments are due upon account activation and future renewal.
If due to bank charges, transfer fees, or the like, DIRECTORY
ONE, INC. should receive less than its invoice amount,
DIRECTORY ONE, INC. will re-invoice Customer for the shortfall.
Customer agrees to be bound by DIRECTORY ONE, INC.'s published
Billing Policies and terms. In the event that any amount remains
unpaid fifteen (15) days after presentation of invoice,
DIRECTORY ONE, INC. may discontinue, withhold, or suspend
services to Customer and/or its customer(s) to whom such unpaid amounts
relate.
3. DUTIES OF DIRECTORY
ONE, INC.
DIRECTORY ONE, INC. will acquire, on request, an Internet Domain
Name on behalf of the Customer. In such case the Customer
hereby waives any and all claims which it may have against
DIRECTORY ONE, INC. for any loss, damage, claim or expense arising
out of, or in relation to, the registration of such Domain
Name in any on-line or off-line network directories, membership
lists or registration lists, or the release of the Domain
Name from such directories or lists following the termination
of services by
DIRECTORY ONE, INC. for any reason. Any costs of DIRECTORY ONE,
INC. in obtaining or maintaining a domain name
for Customer or its customers shall be immediately reimbursed
to DIRECTORY ONE, INC. upon invoice from DIRECTORY ONE, INC.
to Customer.
A. ICANN Guidelines.
Additionally, Customer acknowledges that ICANN may establish
guidelines, limits and/or requirements that relate to the amount
and type of information that our hosting and registrar partners
may or must make available to the public or to private entities,
and the manner in which such information is made available.
Customer hereby consents to any and all such disclosures and
use of, and guidelines, limits and restrictions on disclosure
or use of, information provided by Customer in connection with
the registration of a domain name (including any updates to
such information), whether during or after the term of Customer's
registration of the domain name.
B. Third Party Data. In the event that, in registering the domain
name, Customer is providing information about a third party,
Customer hereby represents that Customer has (1) provided notice
to that third party of the disclosure and use of the party's
information as set forth in this Agreement, and (2) that Customer
has obtained that third party's express consent to the disclosure
and use of that party's information as set forth in this Agreement.
C. Accuracy of Data. Customer acknowledges that willfully providing
inaccurate information or willfully failing to update information
promptly will constitute a material breach of this Agreement
and will be sufficient basis for cancellation of Customer's
domain name registration. (In addition, under certain federal
laws, such provision of inaccurate or false information is one
factor in determining whether Customer may have violated the
trademark rights of another party in registering a domain name
confusingly similar to such party's trademark.) Customer is
responsible for notifying DIRECTORY ONE, INC. in writing
of changes in its contact information. In addition, Customer
agrees that Customer's failure to respond for over fifteen
(15) calendar days to inquiries by
DIRECTORY ONE, INC. concerning the accuracy of contact details
associated with Customer's registration shall constitute
a material breach of this Agreement and will be sufficient
basis for cancellation of Customer's domain name registration.
D. If Customer Has Registered a Domain Name Through A Third
Party. If Customer has registered a .com, .net, or .org domain
name through a third party, or Customer asked DIRECTORY ONE,
INC. to register the domain name for Customer, Customer
is bound by the domain registration policies of that registrar. For
example, domains registered with Network Solutions, Inc. ("NSI")
are subject to the agreement Customer entered into with
NSI. By applying for the domain name and through the use
or continued use of the domain name, the applicant agrees to
be bound by the terms of NSI's domain name policy (the
"NSI Policy") which is available at:
http://www.networksolutions.com/legal/service-agreement.html
E. Domain Name Transfers. If Customer has requested that the
domain name registrar of record for Customer's domain name(s)
(as identified by Customer during the registration process)
be transferred to DIRECTORY ONE, INC. and its hosting or registrar
partners, the following terms shall apply:
In making the transfer request, Customer represents and warrants
that:
* Customer is the rightful holder of the registration for the
domain name(s) that Customer seeks to transfer.
* Customer is not in default with respect to any obligations
that Customer owes to the current registrar of record.
* Customer is not the subject of any pending bankruptcy proceeding,
nor is Customer a party to any dispute concerning the use or
registration of the domain name(s).
* The domain name(s) are not currently the subject of any dispute
or collection effort, including any attachment, levy, lien,
garnishment, escrow or other proceedings.
* Customer is authorized to request the transfer and to enter
into this Agreement.
* More than 60 days have passed since the domain name(s) was
registered, transferred to a new registrar, or renewed. CUSTOMER
MAY NOT TRANSFER A DOMAIN NAME TO A NEW REGISTRAR WITHIN 60
DAYS OF INITIAL REGISTRATION, OR ANY SUBSEQUENT TRANSFER OR
RENEWAL.
Customer agrees that neither DIRECTORY ONE, INC. nor its hosting
or registrar providers will have any responsibility for
any obligations that Customer may owe to the current registrar
of record for the domain name(s) Customer seeks to transfer,
and that Customer will be responsible, pursuant to the
indemnification provision herein, for any costs that DIRECTORY
ONE, INC. may incur in resolving any claims brought by any
third party (including the current registrar of record) relating
to this transfer. Customer will not be entitled to a refund
or credit for any amounts that Customer may have paid to
the current registrar of record. Upon the completion of the
transfer process, however, the term of Customer's registration
will be extended by the period for which Customer has paid
DIRECTORY ONE, INC. Customer agrees that DIRECTORY ONE, INC.
may charge Customer an additional maintenance fee in order
to maintain Customer's domain name for any term carried over
from the current registrar of record. Upon receipt of a
request to transfer a domain name from another registrar
(losing registrar) to DIRECTORY ONE, INC., DIRECTORY ONE, INC.
requires validation of the request from the Administrative
Contact on record at the time of the transfer request. Customer
authorizes DIRECTORY ONE, INC. to take all actions reasonably
necessary to transfer the domain name(s), including contacting
and updating Customer's registration information with the current
registrar of record and the registry. Except as noted above,
DIRECTORY ONE, INC. will treat Customer's transfer request
as an initial domain name registration and will provide all
subsequent domain name services in accordance with the terms
and conditions herein. The term "register" or "registration,"
as used in this Agreement, shall be read to include the transfer
of a domain name registration from Customer's current registrar
of record to DIRECTORY ONE, INC. or its registar partners.
F. Third-Party Proprietary Rights: Customer shall be solely
responsible for ensuring, and hereby represents and warrants
to DIRECTORY ONE, INC., that Customer's domain name does
not infringe upon any trademark, trade names, service mark
or other proprietary rights owned by a third party. Customer
agrees to be bound by the terms of the dispute policy adopted
by the domain name registry, and related agreements that
Customer will be asked to review and indicate Customer's acceptance
of during the domain name registration process. In the
case of gTLDS (global Top Level Domains, including but
not limited to .com, .net,.org, .biz, and .info), the dispute policy
is the ICANN Domain Name Dispute Policy, which is posted at
http://www.icann.org/udrp
G. Welcome Page. Customer consents to DIRECTORY ONE, INC.'s
activation ("parking") of the registered domain name on
a "Welcome Page" containing a notice indicated the domain
is reserved. Such "Welcome Page" indicates that DIRECTORY ONE, INC.
registered the domain name, and links to DIRECTORY ONE, INC.'s
website. This "Welcome Page" may be replaced by the Customer
when the Customer contracts for Web hosting and posts Customer's
own content.
H. Domain name search process. DIRECTORY ONE, INC. endeavors
to make the domain name availability search process reliable;
however, DIRECTORY ONE, INC. does not guarantee availability
of domain names or the accuracy or security of the WHOIS system.
The registration process is not complete until the domain name
requested by Customer has been registered in Customer's
name with the appropriate registry. Because there are delays
in the actual registration of a domain name with the appropriate
registry, DIRECTORY ONE, INC. is not responsible if domain names
requested by Customer are actually registered to third
parties.
I. If Customer has registered a .CO.UK domain name, Customer
must also agree to NOMINET UK's terms and conditions, currently
posted at
http://www.nominet.org.uk/nominet-terms.html
.
4. TERMS OF SERVICE
A. Server Set-Up
and Updating: DIRECTORY ONE, INC. will initially configure the web
server and the hosting account for use. After the hosting account
is configured, Customer will be solely responsible for
all account content management.
B. Maintenance Services: DIRECTORY ONE, INC. will perform maintenance
services as DIRECTORY ONE, INC. determines reasonably necessary
to maintain the continuous operation of the hosting account.
Customer acknowledges such maintenance may require Web
server and hosting account downtime, and such downtime will
not count against any uptime guarantees. DIRECTORY ONE,
INC. will attempt to provide prior notice of maintenance
downtime except when circumstances beyond DIRECTORY ONE, INC.'s
control limit DIRECTORY ONE, INC.'s ability to do so.
C. Account Usage: Customer shall not use (i) excessive amounts
of CPU processing on Customer's Web server, or (ii) bandwidth
or disk usage in excess of the monthly amount ordered. Customer
acknowledges any violation of this policy may result in corrective
action by DIRECTORY ONE, INC., in its sole discretion,
including assessment of additional charges or disconnection
or discontinuance of any and all Services to Customer.
In the event that DIRECTORY ONE, INC. decides to take corrective
action, Customer shall not be entitled to a refund of any
fees paid in advance prior to such corrective action.
D. Customer shall be solely responsible for (a) the development,
operation, and maintenance of Customer's Web site and products
and all content and materials appearing within the Web site
or related to Customer's products, including without limitation
(i) the accuracy and appropriateness of content and materials
appearing within the Web site or related to Customer's products,
(ii) ensuring that the content and materials appearing within
the Web site or related to Customer's products do not violate
or infringe upon the rights of any third party, (iii) ensuring
that the content and materials appearing within the Web site
or related to Customer's products are not libelous or otherwise
illegal; (b) the final calculation and application of shipping
and sales tax; (c) accepting, processing, and filling any customer
orders, and for handling any customer inquiries or complaints
arising therefrom; and (d) the security of any customer credit
card numbers and related customer information Customer may access
as a result of conducting electronic commerce transactions through
the Web server software.
E. IP Address Ownership: DIRECTORY ONE, INC. and/or DIRECTORY
ONE, INC.'s service providers shall maintain and control
ownership of all IP numbers and addresses that may be assigned
to Customer by DIRECTORY ONE, INC., and DIRECTORY ONE, INC.
reserves in its sole discretion, the right to change or
remove any and all such IP numbers and addresses.
F. Caching: Customer grants DIRECTORY ONE, INC. a license to
cache the entirety of Customer's Web site (including content
provided by third parties) hosted by DIRECTORY ONE, INC.,
and agrees such caching is not an infringement of any of Customer's
intellectual property rights or any third party's intellectual
property rights.
5. RULES AND REGULATIONS
DIRECTORY ONE, INC. may impose reasonable rules and regulations
regarding the use of its services from time to time. Customer
shall impose such rules and regulations on its employees
and users to the extent necessary to ensure compliance. This information is
posted on the Internet at:
http://www.directoryone.com
6. LIMITATION OF DIRECTORY ONE, INC.'s OBLIGATIONS AND LIABILITY
A. DIRECTORY ONE,
INC. will utilize its best efforts to maintain acceptable performance
of contracted for services, but DIRECTORY ONE, INC. makes absolutely
no warranties whatsoever, express or implied, including
warranty of merchantability or fitness for a particular
purpose. DIRECTORY ONE, INC. cannot guarantee continuous service,
service at any particular time, or integrity of data stored
or transmitted via its system or via the Internet. DIRECTORY
ONE, INC. will not be liable for the inadvertent disclosure
of, or corruption or erasure of, data transmitted or received or
stored on its system. DIRECTORY ONE, INC. shall not be liable
to Customer or any of its customers for any claims or damages
which may be suffered by Customer or its customers, 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, nondeliveries, or service interruptions whether
or not caused by the fault or negligence of DIRECTORY ONE,
INC.
B. DIRECTORY ONE, INC. may discontinue servicing any Plan, or
may require fulfillment of conditions DIRECTORY ONE, INC.
may choose to impose as a prerequisite for continuing to
service any Plan. Such discontinuation or requirement may not
be unreasonable, however, and DIRECTORY ONE, INC. agrees
to provide Customer with reasonable notice via Email or
fax of any such intent to discontinue or impose conditions.
C. Services provided by DIRECTORY ONE, INC. to Customer shall
be deemed accepted for all purposes fifteen days after
activation or renewal for such services, if no written
claim or objection regarding such services has been received
by DIRECTORY ONE, INC. within the 15-day period. No claim
related to such accepted services shall be raised.
D. DIRECTORY ONE, INC.'s liability to Customer, and any end
user of any Plan or other DIRECTORY ONE, INC. services,
is limited to the amount paid to and received by DIRECTORY
ONE, INC. for services not accepted. In no event shall DIRECTORY
ONE, INC. be liable to Customer, or any end user or any
other entity for any special, consequential, or other damages,
however caused, whether for breach of contract, negligence
or otherwise, even if DIRECTORY ONE, INC. has been advised of
the possibility of such damage.
E. Customer will take all necessary measures to preclude DIRECTORY
ONE, INC. from being made a party to any lawsuit or claim
regarding DIRECTORY ONE, INC. services provided to any
Customer or end user. Customer hereby agrees to indemnify and
hold harmless DIRECTORY ONE, INC. from any and all claims
of whatever nature brought by any of Customer's users against
DIRECTORY ONE, INC. in excess of the remedy set forth in paragraph
7(D).
F. Where data backup and restoration services are a part of
DIRECTORY ONE, INC.'s provisioning of a service, such services
are not intended to be a comprehensive disaster recovery
solution, and DIRECTORY ONE, INC. or its hosting partners will
not be liable for data loss, or for damage to servers or
other equipment.
7. DISPUTES
The parties shall attempt to resolve all disputes arising out
of this agreement in a spirit of cooperation without formal proceedings.
Any dispute which cannot be so resolved (other than the collection
of money due on unpaid invoices) and other than the injunctive
relief referred to in paragraph 10 shall be subject to arbitration
upon written demand of either party. Arbitration shall take place
in Houston, Texas, or at another location if the parties so agree.
The arbitration shall take place before an arbitration panel chosen
as follows: The parties shall each choose an arbitrator, and the
two arbitrators shall choose a third arbitrator and determine
the third arbitrator's compensation. Each party shall have one
veto over the choice of the third arbitrator. The three
arbitrators shall schedule an informal proceeding, hear the arguments,
and decide the matter by secret majority vote. Unless the
arbitrators decide otherwise, each party shall pay the costs
of its own arbitrator, and shall pay half of the other costs of the
arbitration proceeding. Each party shall have the right to have
the proceedings transcribed. The arbitrators shall not have
the authority to award punitive damages or any other form
of relief not contemplated in the contract. The majority of arbitrators
shall render a written opinion setting forth the basis on which
they arrived at the decision regarding each issue submitted
to arbitration; the dissenting
arbitrator, if any, shall not issue a dissenting opinion. Regarding
each issue submitted to arbitration, the decision shall be
final and binding only to the extent it is accompanied by
a written explanation of the basis upon which it was arrived at. Judgment
upon the award, if any, rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
Should any legal action permissible under this agreement be instituted
to enforce the terms and conditions of this agreement, in particular
the right to collect money due on unpaid invoices, the prevailing
party shall be entitled to recover reasonable attorney's fees
and expenses incurred at both the trial and appellate levels.
8. TERM, TERMINATION:
This agreement shall run in accordance with the term of the initial
order. It shall be automatically renewed on a regular basis in
accordance with the term of the initial order or subsequent change
to that term unless terminated in one of the following ways:
A. By customer,
by notifying DIRECTORY ONE, INC. in writing twenty (20) days prior
to renewal of this agreement.
B. By DIRECTORY ONE, INC., upon thirty (30) days' written notice,
if Customer breaches any material and substantial provision
of this agreement and has not cured by the end of the 30
days.
C. By DIRECTORY ONE, INC., upon sixty (60) days' written notice,
if
1. DIRECTORY
ONE, INC. provides Customer with written notice of the specific
reasons for its belief in this regard, and
2. Customer has not cured by the end of the 60 days.
D. By DIRECTORY
ONE, INC., immediately upon giving written notice to Customer,
in the event that
1. Any bank draft
or check delivered by Customer to DIRECTORY ONE, INC. in payment
for Products is returned unpaid and Customer fails to
remedy such nonpayment within five business days;
2. Customer becomes more than sixty (60) days in arrears in payment
of its account with DIRECTORY ONE, INC.;
3. There are instituted bankruptcy or insolvency proceedings against
Customer, which are not vacated within sixty (60) days from
the date of filing;
4. Customer institutes voluntary bankruptcy or insolvency proceedings,
or otherwise admits insolvency; or
5. Customer makes an assignment of all or part of its assets for
the benefit of creditors.
E. By DIRECTORY
ONE, INC. immediately, if Customer attempts to assign all or
any part of this Agreement without DIRECTORY ONE, INC.'s
prior written approval;
F. By DIRECTORY ONE, INC. immediately, if Customer fails to
inform ITS in writing immediately on the happening of any
event specified in this section;
G. By Customer, immediately upon giving written notice to DIRECTORY
ONE, INC., if
1. There are
instituted bankruptcy or insolvency proceedings against DIRECTORY
ONE, INC., which are not vacated within sixty (60) days from
the date of filing;
2. DIRECTORY ONE, INC. institutes voluntary bankruptcy or
insolvency proceedings, or otherwise admits insolvency;
3. DIRECTORY ONE, INC. makes an assignment of all or part
of its assets for the benefit of creditors; or
4. DIRECTORY ONE, INC. fails to inform Customer in writing
immediately on the happening of any event specified in
this section.
The provisions
of paragraphs 7, 10, 11, and 13 survive any termination of this
agreement.
9. NONASSIGNABILITY
Customer's rights and obligations under this agreement may not
be transferred or assigned directly or indirectly without the
prior
written consent of DIRECTORY ONE, INC., which consent shall not
be unreasonably refused.
10. PARTIAL INVALIDITY
If any provision of this agreement is held to be invalid by a
court of competent jurisdiction, then the remaining provisions
shall
nevertheless remain in full force and effect. DIRECTORY ONE, INC.
and Customer agree to renegotiate in good faith any term
held invalid and to be bound by mutually agreed substitute
provision.
11. APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement takes effect when accepted by DIRECTORY ONE, INC.
in Texas. It is to be governed by and construed under the
laws of the State of Texas and the United States of America.
The federal and state courts of the State of Texas shall have
exclusive jurisdiction to adjudicate any non-arbitrable dispute
arising out of this agreement. Customer hereby expressly
consents to (1) the jurisdiction of the courts of Texas and
(2) service of process being effective upon it by registered mail
sent to the address set forth at the beginning of this document,
as may be changed from time to time by written notice actually
received by DIRECTORY ONE, INC. To the extent permissible
by the law of Customer's jurisdiction, Customer waives any requirement
that service of process or of any documents be made upon it pursuant
to the provisions of the Hague Convention.
12. NOTICES
Except with respect to service of process as set forth in paragraph
10, all notices may be sent by email, fax, or express mail to
the email address, fax number, or address most recently provided
and will be effective upon transmission. Evidence of successful
transmission shall be retained.
13. ENTIRE AGREEMENT; MODIFICATIONS
This agreement sets forth the entire agreement and understanding
between the parties and merges all prior discussion between them.
DIRECTORY ONE, INC. may make changes to this agreement upon
thirty (30) days' written notice to Customer, advising of
the change and the effective date thereof. Utilization of DIRECTORY
ONE, INC. services by Customer and/or its Customers following
the effective date of such change shall constitute acceptance
by Customer of such change(s). Otherwise, this
agreement may not be modified except by the written consent of
both parties.
14. ACCEPTANCE OF SERVICES
ACCEPTANCE OF THIS AGREEMENT BY DIRECTORY ONE, INC. MAY BE SUBJECT,
IN DIRECTORY ONE, INC.'S ABSOLUTE DISCRETION, TO SATISFACTORY
COMPLETION OF A CREDIT CHECK AND CONTINUED CREDIT WORTHINESS OF
CUSTOMER. ACTIVATION OF SERVICE SHALL INDICATE DIRECTORY ONE,
INC.'S ACCEPTANCE OF THIS AGREEMENT. USE OF DIRECTORY ONE, INC.'S
SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. CUSTOMER REPRESENTS
AND WARRANTS THAT
CUSTOMER HAS FULL AUTHORITY AND RIGHT TO ENTER INTO THIS AGREEMENT.
CUSTOMER FURTHER REPRESENTS AND WARRANTS THAT CUSTOMER IS AT LEAST
18 YEARS OF AGE, AND THAT CUSTOMER IS NOT LOCATED IN A COUNTRY
SUBJECT TO U.S. EMBARGOES, OR LISTED ON THE U.S. TREASURY DEPARTMENT'S
LIST OF SPECIALLY DESIGNATED NATIONALS, OR LISTED ON U.S. COMMERCE
DEPARTMENT'S DENIED PERSONS LIST OR ENTITIES LIST.
|
