COMPUTER CORP. SERVICE AGREEMENT
This agreement (Agreement) is made between Carlc Computer Corp.
("Carlc") and "Customer" as identified below, and is effective
as of the date executed by Carlc. This Agreement consists of
signature page, the General Terms and Conditions attached hereto
and which apply to all services provided by Carlc under this
and each of the other Addenda attached hereto and identified
by checking the applicable box.
Customer Address: ________________________________________
Customer Telephone & Fax Number: _________________________
Customer Authorized Representative:__________________________
Customer and Carlc agree to the terms and conditions of this Agreement:
By: _____________________________ By: _____________________________
Title: ____________________________ Title: ___________________________
Date: ____________________________ Date: ___________________________
TERMS AND CONDITIONS
These General Terms and Conditions apply to Carlc s Internet
Webhosting Services and any other services acquired by Customer
under this Agreement (collectively the "Services") unless an
Addendum to this Agreement explicitly supercedes these General
Terms and Conditions, in which event the terms of the Addendum
shall govern only the Services subject to that Addendum.
Carlc's suite is a Web hosting set of products and services.
and Charges; Payment. Customer agrees to pay all applicable
rates and charges set forth on each Addendum applicable to any
Services acquired hereunder. Charges shall be invoiced monthly
and payment shall be due upon Customer's receipt of invoice
and payable within 30 days of the date of the invoice. In the
event Customer disputes any portion of an invoice, Customer
shall timely pay the disputed amount and provide Carlc with
all information supporting Customer's position regarding the
disputed portion. Carlc shall determine in it's sole judgement
whether such invoiced items were erroneous, and shall issue
an appropriate credit to Customer if it so determines. Customer
will pay all sales and use taxes, as well as duties or levies,
arising in connection with the Services.
3.01 This Agreement shall be effective upon Carlc s execution
and shall continue until the expiration of the term of any Service
ordered hereunder as indicated on the applicable Addendum (the
"Term/Pricing Addendum"). Unless terminated earlier as set forth
herein, at the end of the Initial Term this Agreement or stated
term of any Addendum, this Agreement and each Addendum shall
continue in effect on a month-to-month basis until terminated
in writing by either party on not less than thirty (30) days
notice. In the event Customer desires to terminate this agreement
in advance of the end of the Initial Term, Customer shall pay
Carlc a termination fee equal to the lesser of (a) the remaining
charges applicable through the end of the Intitial Term as scheduled,
or (b) six months of monthly recurring charges as applicable
during the month previous to early termination by Customer.
3.02 In addition to the termination rights provided in Section
8, Carlc may terminate this Agreement and cease provision of
any Services upon default of Customer. Default includes the
failure to pay any amount when due hereunder; the filing of
a petition in bankruptcy by or against Customer or Customer's
inability to meet obligations when due; or failure of Customer
to rectify any violation (other than failure to pay) of the
provisions of this Agreement within thirty (30) days notice
thereof by Carlc.
3.03 In the event a law or regulatory action prohibits, substantially
impairs or makes impractical the provision of any Services under
this Agreement, as determined by Carlc, Carlc may terminate
any Services or this Agreement upon thirty (30) days written
notice to Customer.
and Obligations of Customer.
4.01 Customer shall at its expense undertake all necessary preparations
required to comply with Carlc's installation and maintenance
4.02 Customer shall comply with all policies set forth in the
Internet Acceptable Use Policies attached hereto
or Software not Provided by Carlc.
5.01 Carlc shall not be responsible for the installation, operation
or maintenance of equipment or software not provided by Carlc;
nor shall Carlc be responsible for the transmission or reception
of information by equipment or software not provided by Carlc.
5.02 Customer shall be responsible for the use and compatibility
of equipment or software not provided by Carlc. In the event
that Customer uses equipment or
software not provided by Carlc which impairs Customer's use
of any Services: (a) Customer shall nonetheless be liable for
payment for all Services, including without limitation any Software,
provided by Carlc, and (b) any service specifications or service
levels generally applicable to the Services involved shall not
apply. Upon notice from Carlc that any equipment or software
not provided by Carlc is causing or is likely to cause any hazard,
interference or service obstruction, Customer shall immediately
eliminate the likelihood of hazard, interference or service
obstruction and if Customer fails to do so, Carlc may take such
action as it deems required to eliminate such hazard, interference
or service obstruction.
and Obligations of Carlc; Disclaimer of Warranties
6.01 Carlc shall operate and maintain the Services. Customer
shall be responsible for providing Carlc accurate information
required to install the Services. Carlc shall not be responsible
for operating or maintaining software, equipment or cabling
that connects equipment not provided by Carlc to the Services.
6.02 Customer agrees that Carlc and it's affiliates exercise
no control whatsoever over the merchandise, information and
services offered or made available or accessible on the Internet.
Customer further agrees that Carlc has no obligation to monitor
the Services. CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND RISK
FOR CUSTOMER'S USE AND AUTHORIZED USERS' USE OF THE SERVICES,
SOFTWARE, AND THE INTERNET. NEITHER CARLC NOR IT'S AFFILIATES
MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS
WHATSOEVER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE
OR NONINFRINGEMENT, OR THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD
TO ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH
THE INTERNET, OR ANY TRANSACTIONS CONDUCTED ON THE INTERNET,
AND NEITHER CARLC OR IT'S AFFILIATES SHALL BE LIABLE FOR ANY
COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY
SUCH USE OR TRANSACTION.
6.03 CUSTOMER UNDERSTANDS AND AGREES FURTHER THAT THE INTERNET
CONTAINS UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT
OR MAY BE OFFENSIVE TO SOME PEOPLE. CUSTOMER AND CUSTOMER'S
AUTHORIZED USERS ACCESS SUCH MATERIALS AT CUSTOMER'S OWN RISK.
CARLC HAS NO CONTROL OVER AND ACCEPTS NO LIABILITY OR RESPONSIBILITY
WHATSOEVER FOR SUCH MATERIALS.
6.04 THE SERVICES AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND
"AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES
OF TITLE, NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION
GIVEN BY CARLC, IT'S AFFILIATES OR IT'S CONTRACTORS OR THEIR
RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY. NEITHER CARLC
NOR IT'S AFFILIATES WARRANTS THAT THE SERVICE WILL BE UNINTERRUPTED
OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL
ACCESSIBLE ON THE SERVICE IS FREE OF VIRUSES, WORMS, TROJAN
HORSES OR OTHER HARMFUL COMPONENTS.
6.05 IN NO EVENT SHALL CARLC, IT'S AFFILIATES OR IT'S CONTRACTORS
BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE
OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM CUSTOMER'S
(OR CUSTOMER'S AUTHORIZED USERS') USE OF OR INABILITY TO USE
THE SERVICES, THE SOFTWARE, OR TO ACCESS THE INTERNET OR ANY
PART THEREOF, OR CUSTOMER'S (OR AUTHORIZED USERS') RELIANCE
ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON
OR THROUGH THE SERVICES OR THE SOFTWARE, OR THAT RESULT FROM
MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS,
DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE
OF PERFORMANCE. CARLC'S LIABILITY HEREUNDER TO CUSTOMER SHALL
IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE AVERAGE MONTHLY RECURRING
CHARGE PAID BY CUSTOMER DURING THE PERIOD FROM EXECUTION OF
THE AGREEMENT TO THE DATE A CLAIM IS MADE.
6.06 If Customer is dissatisfied with the Services or with any
terms, conditions, rules, policies, guidelines, or practices
of Carlc applicable to the Services, Customer's sole and exclusive
remedy is to terminate this Agreement in accordance with Section
3 and discontinue using the Services.
to Comply With Agreement.
Carlc may deny Customer access to and cease to provide all or
part of any Services without notice if Customer (a) violates
any provision of Carlc's Internet Acceptable Use Policies, which
are appended to these General Terms and Conditions (and which
may be modified from time to time as provided in the Policy
or by delivery of such modified Internet Policies to Customer);
or (b) engages in any conduct or activity that Carlc, in it's
sole discretion, believes violates any of the terms and conditions
of this Agreement or causes a risk that Carlc may be subjected
to civil or criminal litigation, charges, or damages. If Carlc
ceases to provide or denies Customer access to any Services
pursuant to the preceding sentence, neither Customer nor any
of it's authorized users shall have any right (a) to access
through Carlc any materials stored on the Internet, (b) to obtain
any credit(s) otherwise due to Customer, and such credit(s)
shall be forfeited, or (c) to access third party services, merchandise
or information on the Internet through Carlc. Carlc shall have
no responsibility to notify any third-party providers of services,
merchandise or information of any discontinuance of any Services
pursuant to this paragraph, nor any responsibility for any consequences
resulting from lack of such notification.
Customer agrees to defend, indemnify and hold Carlc and it's
affiliates harmless from any and all liabilities, costs and
expenses, including reasonable attorneys' fees, related to or
arising from: (a) any breach of this Agreement by Customer or
Authorized Users; (b) the use of the Services or the Internet
or the placement or transmission of any message, information,
software or other materials on the Internet by Customer or Authorized
Users; (c) acts or omissions of Customer, Customer's officers,
employees, agents or contractors in connection with the construction,
installation, maintenance, presence, use or removal of systems,
channels or terminal equipment or software not provided by Carlc
which are connected or are to be connected to the Services;
and (d) claims for infringement of patents or any intellectual
property right arising from the use of any Services, equipment
and software, apparatus and systems not provided by Carlc in
connection with any Services.
9.01 Any dispute in connection with this Agreement which is
not settled to the mutual satisfaction of the parties within
thirty (30) days from the date that either party informs the
other in writing that such dispute or disagreement exists, shall
be settled by arbitration in Fort Lauderdale, Florida in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association in effect on the date that such notice is given.
The decision of the arbitrator(s) shall be final and binding
upon the parties and shall include written findings of law and
fact, and judgment may be obtained thereon by either party in
a court of competent jurisdiction. Each party shall bear the
cost of preparing and presenting its own case. The cost of the
arbitration, including the fees and expenses of the arbitrator(s),
shall be shared equally by the parties hereto unless the award
otherwise provides. The obligation herein to arbitrate shall
not be binding upon any party with respect to requests for preliminary
injunctions, temporary restraining orders or other similar temporary
procedures in a court of competent jurisdiction to obtain interim
relief when deemed necessary by such court to preserve the status
quo or prevent irreparable injury pending resolution by arbitration
of the actual dispute.
10.01 In the event that any portion of this Agreement is held
to be unenforceable, the unenforceable portion shall be construed
in accordance with applicable law as nearly as possible to reflect
the original intentions of the parties and the remainder of
the provisions shall remain in full force and effect.
10.02 Carlc's failure to insist upon or enforce strict performance
of any provision of this Agreement shall not be construed as
a waiver of any provision or right. Neither the course of conduct
between parties nor trade practice shall act to modify any provision
of this Agreement.
10.03 Customer shall not assign this Agreement without the prior
written consent of Carlc.
10.04 Carlc will not be responsible for performance of its obligations
hereunder where delayed or hindered by war, riots, embargoes,
strikes or acts of its vendors, suppliers, or workmen (whether
of Carlc or others), accidents, acts of God, or any other event
beyond its reasonable control.
10.05 This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida, without regard to any
provisions thereof which would cause the application of the
laws of any other jurisdiction to this Agreement. Any cause
of action Customer may have with respect to the Service must
be commenced within one (1) year after the claim or cause of
action arises or such claim or cause of action is barred.
10.06 This Agreement, including the Addendums hereto, constitutes
the entire agreement between Customer and Carlc with respect
to the Services.
10.07 Customer agrees that Carlc has the right and responsibility
to fully cooperate regarding any aspect of Carlc's services,
including services sold to the client. Any use or attempted
use of Carlc's system to engage in software piracy or other
illegal activities will result in an immediate termination of
service and a report to the FTP, SPA, or other appropriate authorities.
10.08 Customer agrees to indemnify and hold Carlc harmless in
connection with any controversy or legal action arising from
the customer's use of Carlc's service, including but not limited
to controversies over domain name selection and web site content.
10.09 Although Carlc backs up it's systems regularly and works
to prevent technical problems, system failures, and service
disruptions, such occurrences are possible, particularly in
connection with such things as total power losses, natural calamities,
acts of war or terrorism, acts of god, destructive acts of hackers,
or bandwidth changes on the Internet. Carlc's system backup
is therefore not guaranteed and each customer therefore agrees
to maintain a backup copy of his or her web site and any other
important information and to store the same on customer's own
computer. Customer further agrees that Carlc's liability for
any failure to provide virtual hosting service regardless of
cause or duration shall be limited to a refund of the fees paid
for the month in which the failures occur. It is specifically
agreed that Carlc shall under no circumstances be liable for
any lost profits or other consequential damages.
10.10 Relationship of the Parties. The parties intend that an
independent contractor relationship will be created by this
contract, and that no partnership, joint venture or employee/employer
relationship is intended.
10.11 Taxes. If any federal, state or local governmental entity
with taxing authority over the services provided under this
Agreement imposes a tax directly on the services provided by
Carlc to Client under this Agreement (excluding any income,
business and occupation, capital gain, death or inheritance,
or other indirect taxes), then Carlc may pass the direct amount
of such cost on to Customer, and Customer shall promptly pay