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Parties. This
agreement is between NewGen
Technologies Corporation (
PROVIDER ) and the party as
specified in the application
( CLIENT ).
INTERNET Services only. This
agreement covers INTERNET
services only. Not covered
by this agreement are
hardware, communication
lines and/or software for
access to the INTERNET,
although the provider can
sell those to the client
subject to a different
contract.
Communication lines ( if
needed ). PROVIDER will
assist CLIENT getting the
communications lines
installed and activated by a telco company at no extra
charge.
Price change. PROVIDER has
the right to change the
price of the services at any
time with 30 days notice.
Start of services. The
Services will be activated
usually the same or next
working day provided that
the CLIENT has everything
needed to be on the
Internet. A schedule will be
provided otherwise. The
Schedule for line
installation, domain
activation, equipment and
software setup and services
activation is an estimate
only.
Quality of Services.
PROVIDER will make the best
efforts to provide quality
and uninterrupted services.
Fees. CLIENT agrees to pay a
setup fee (if any), a
monthly fee, a usage fee (if
any), and any overages (if
any). The setup fee and
first month fee is due upon
sign up. PROVIDER will
present a fee schedule to
CLIENT before sign up. For
dedicated server services
CLIENT agrees to pay all
early termination fees and
penalties as outlined in
PROVIDERS contract.
Cancellation. PROVIDER
requires a 30 day advanced
notice for cancellations of
all dedicated services
including but not limited
to: Dedicated Servers,
Dedicated Lines, etc.
Domain name registration. If
PROVIDER has paid for the
registration of CLIENT's
domain name and CLIENT
cancels his/her web hosting
plan CLIENT will be charged
$35.00 for the domain name
registration.
Collateral. CLIENT's servers
and other equipment located
at PROVIDER's premises will
be used as collateral for
unpaid bills and penalties.
Such servers and equipment
will not be released until
CLIENT pays his bills and/or
penalties in full.
Late Payment. CLIENT agrees
to pay a one time penalty of
6% of the amount due plus
$10 per month for delayed
payments.
Billing information updates.
CLIENT agrees to provide to
PROVIDER any changes to the
billing information
promptly. Billing
information includes but is
not limited to credit card
info, address, phone,
checking account info.
Policies. CLIENT agrees to
comply strictly with
PROVIDERS "Acceptable use
policy"
http://www.webhostingbynewgen.com/aup.htm.
CLIENT understands that
services are subject to
immediate termination
without compensation for
non-compliance with the
policies. Further, CLIENT
will be responsible for the
full amount of any tangible
and intangible damages such
non-compliance may cause.
PROVIDER reserves the right
to change the policies to
reflect the dynamic nature
of the Internet. Both
policies are available
on-line any time or as a
hard copy by request only.
Indemnification. CLIENT
shall indemnify, defend by
counsel reasonably accepted
by PROVIDER, protect and
hold PROVIDER harmless from
and against any and all
claims, liabilities, losses,
costs, damages, expenses,
including consultants' and
attorneys' fees and court
costs, demands, causes of
action, or judgments
directly or indirectly
arising out of or related to
the web hosting and other
services provided by
PROVIDER to the CLIENT.
Account sharing. CLIENT
agrees to keep his account
information confident.
PROVIDER shall not be
responsible for lack of
privacy, large overage bills
or any other consequences of
account sharing. Sharing of
unlimited accounts is not
allowed. PROVIDER will
cancel without any
compensation any unlimited
account used by more than
one user at one time.
Right of refusal. PROVIDER
has the right to refuse
services to anyone
No solicitation. CLIENT
agrees not to approach
PROVIDERS employees with
proposals to hire them as
his own employees or
contractors. If CLIENT were
to hire any of PROVIDERS
employees, CLIENT agrees to
pay PROVIDER for each
employee thus hired the
greater amount of: three
years salary for that
employee as CLIENT is to pay
such employee, or $200 000.
LIMITED LIABILITY. PROVIDER
shall not be liable under
any circumstances for any
special, consequential,
incidental or exemplary
damages arising out of or in
any way connected with this
agreement or the product,
including but not limited to
damages for lost profits,
loss of use, lost data,
phone bills, communication
lines bills, loss of
privacy, damages to third
party even if PROVIDER has
been advised of the
possibility of such damages.
The foregoing limitation of
liability shall apply
whether any claims based
upon principles of contract,
warranty, negligence or
other tort, breach of any
statutory duty, principles
of indemnity or
contribution, the failure of
any limited or exclusive
remedy to achieve its
essential purpose or
otherwise. Further, PROVIDER
will not censor any content
on the INTERNET. It will be
the CLIENT's responsibility
for the usage of his account
and any consequences of this
usage.
No returns. PROVIDER will
not return collected fees
for services.
Cut off period for billing
errors. 90 days cut off
period is set for billing
error claims. CLIENT agrees
that he has no rights to
claim any billing errors for
period earlier than 90 days
from the date of the claim.
All bills are final after 90
days.
Terms. CLIENT can terminate
the services with advance
notice in writing only to
the billing department by
mail or e-mail accounting@newgen.ca.
CLIENT understands that
there will be no
reimbursement and no
pro-rate if he decides to
terminate the services
before the end of a prepaid
term, regardless of the
reason for the termination.
PROVIDER can terminate this
agreement at the end of a
billing period, with a 30
days notice. PROVIDER can
terminate the agreement
immediately without any
compensation if CLIENT does
not comply with the
"Acceptable use policy"
available on-line at this
address
http://www.webhostingbynewgen.com/aup.htm.
Credit card accounts will be
automatically renewed unless
notified prior to expiration
date of service.
Entire Agreement. This
Agreement constitutes the
entire understanding and
contract between the parties
and supersedes any and all
prior and contemporaneous,
oral or written
representations,
communications,
understandings and
agreements between the
parties with respect to the
subject matter hereof, all
of which representations,
communications,
understandings and
agreements are hereby
canceled to the extent they
are not specifically merged
herein. The parties
acknowledge and agree that
neither of the parties is
entering into this Agreement
on the basis of any
representations or promises
not expressly contained
herein.
Modification. This Agreement
shall not be modified,
amended, canceled or in any
way altered, nor may it be
modified by custom and usage
of trade or course of
dealing, except by an
instrument in writing and
signed by both of the
parties hereto.
Waiver. Performance of any
obligation required of a
party there-under may be
waived only by a written
waiver signed by the other
party, which waiver shall be
effective only with respect
to the specific obligation
described therein. The
waiver by either party
hereto of a breach of any
provision of this Agreement
by the other shall not
operate or be construed as a
waiver of any subsequent
breach of the same provision
or any other provision of
this Agreement.
Separability. If any
provision of this Agreement
shall be unlawful, void, or
for any reason,
unenforceable, it shall be
deemed separable from, and
shall in no way affect the
validity or enforceability
of, the remaining provisions
of this Agreement, which
shall remain valid and
enforceable according to its
terms.
Governing Law. This
Agreement was entered into
in the Province of British
Columbia and its validity,
construction, interpretation
and legal effect shall be
governed by the laws and
judicial decisions of the
Province of British Columbia
applicable to contracts
entered into and performed
entirely within the Province
of British Columbia.
Authority to Execute. Each
of the parties to this
Agreement represents and
warrants that it has full
power to enter into this
Agreement and that it hasn't
assigned, encumbered, or in
any manner transferred all
or any portion of the claims
covered by this Agreement.
Benefit of Successors and
Assigns. This Agreement
shall be binding upon and
inure to the benefit of each
of the parties hereto, and
except as otherwise provided
herein, their respective
legal successors and
permitted assigns.
Cumulative Remedies. Except
as specifically provided
herein, no remedy made
available to either party
hereunder is intended to be
exclusive of any other
remedy provided hereunder or
available at law or in
equity.
No Partnership or Agency.
Nothing in this Agreement
shall be construed as
creating a joint venture,
partnership, agency,
employment relationship,
franchise relationship or
taxable entity between the
parties, nor shall either
party have the right, power
or authority to create any
obligations or duty, express
or implied, on behalf of the
other party hereto, it being
understood that the parties
are independent contractors vis-ˆ-vis one another.
No Third Party
Beneficiaries. Nothing
contained in this Agreement,
express or implied, shall be
deemed to confer any rights
or remedies upon, nor
obligate any of the parties
hereto, to any person or
entity other than such
parties, unless so stated to
the contrary.
Excused Performances.
Provider shall not be deemed
to be in default of or to
have breached any provision
of this Agreement as a
result of any delay, failure
in performance or
interruption of the
Services, resulting directly
or indirectly from acts of
God, acts of civil or
military authority, civil
disturbance, war, strikes or
other labor disputes and
disturbances, fire,
transportation
contingencies, shortages of
facilities, fuel, energy,
labor or materials, or laws,
regulations, acts or order
of any government agency or
official thereof, other
catastrophes, or any other
circumstances beyond
Provider's reasonable
control. In the event of any
such delay or failure, the
parties shall defer
performance of the Services
to a date and time mutually
agreeable.
Captions. The section
headings and captions
contained herein are for
reference purposes and
convenience only and shall
not in any way affect the
meaning or interpretation of
this Agreement.
Gender. Where the context so
requires, the masculine
gender shall include the
feminine or neuter, and the
singular shall include the
plural and the plural the
singular.
Recitals. The recitals above
set forth are incorporated
herein by reference.
Arbitration. Any dispute
arising under this agreement
shall be resolved by binding
arbitration in the city of
Vancouver by the Better
Business Bureau.
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