|
WHAT IS THIS?
===============================================
The agreement below is a legal agreement between ISP Taiwan and all of
our customers. If you use any service provided by or affiliated with
ISP Taiwan, you are legally bound by this agreement. Read it carefully
before signing up and ensure that you understand and agree to all
parts. Use of our services implies agreement with this contract!
QUESTIONS?
===============================================
Any questions regarding this agreement should be sent to ISP Taiwan's
sales department [1] prior to signing up for service.
SERVICE AGREEMENT
===============================================
Last Updated: 08/09/2004
SERVICE AGREEMENT
THIS AGREEMENT ("Agreement") is made and effective as of the date
of acceptance, by and between you ("Client") and ISP Taiwan.
WHEREAS, ISP Taiwan owns, distributes and provides various products and
services for conducting business on the Internet including:
SiteAdmin, BillAdmin, shared, reseller and dedicated web hosting,
cPanel licensing, and the ISP Taiwan family of services (hereinafter
collectively referred to as the "Services").
WHEREAS, Client desires to utilize some or all of the Services to
develop, enhance or maintain Client's business and/or presence on the
Internet.
NOW THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto agree as follows:
1. ISP Taiwan SERVICES
===============================================
ISP Taiwan agrees to provide to Client the Services agreed upon between
ISP Taiwan and Client as selected by Client in ISP Taiwan's customer database
that is specified at www.ISP Taiwan.com.
2. PAYMENT AND INVOICING
===============================================
2.1 In consideration of the performance of the Services, Client
shall pay ISP Taiwan monthly in advance the amount set forth in ISP Taiwan's
customer database as such records are amended from time to time for
the Services during the term of this Agreement.
2.2 Client shall receive a confirmation letter via e-mail at the
time Client contracts for the Services, which shall confirm the fees
payable to ISP Taiwan. Thereafter, Client shall receive a monthly billing
statement for the upcoming month. The monthly billing statement shall
indicate any changes in fees, which fees shall become effective upon
thirty (30) days' notice as set forth in Section 2.4 herein.
2.3 Client is responsible for all activities and charges resulting
from Client's use of the Services. Client agrees to pay all fees,
bandwidth charges, connect time charges, surcharges, and other
charges incurred by Client and set forth in the monthly billing
statement. Client acknowledges that no refunds will be given by ISP Taiwan
in the event that Client's account is terminated by ISP Taiwan or Client
mid-term. In the event of a breach of security, Client will remain
liable for any unauthorized use of the Services until Client notifies
ISP Taiwan by sending an e-mail with account information to
sales@ISP Taiwan.com.
2.4 Current rates for using the Services may be obtained on our web
site at www.ISP Taiwan.com. ISP Taiwan reserves the right to change fees,
surcharges, monthly membership fees or to institute new fees at any
time. In addition, ISP Taiwan may institute special trial offers, from
time to time, that shall be reflected in the confirmation letter sent
to Client upon sign up. If ISP Taiwan does not receive the full amount of
Client's Service account balance within three (3) days of invoice
date, a late charge equal to 1.5% per month or highest amount allowed
by law per month will be added to Client's bill and shall be due and
payable. Client shall also be responsible for all attorney and
collection fees arising from ISP Taiwan's efforts to collect any unpaid
balance of Client's account(s), and ISP Taiwan may terminate Client's
account immediately without further notice to Client.
3. RESPONSIBILITIES AND RIGHTS OF ISP Taiwan
===============================================
3.1 Means of Performance. ISP Taiwan shall provide Client with the ISP Taiwan
hosting services, as described at www.ISP Taiwan.com hereto. ISP Taiwan has the
right to control and direct the means, manner, and method by which the
host services are performed.
3.2 Support. ISP Taiwan shall provide a reasonable level of technical
support to Client via email or Web page for the term of this
Agreement.
3.3 Other Work. ISP Taiwan has the right to perform and license products
to others during the term of this Agreement. ISP Taiwan may elect to
electronically monitor the host services and may disclose any content
or records to satisfy any law, regulation, or other governmental
request or to properly operate host services and protect its Clients.
ISP Taiwan reserves the right to block any site hosted by ISP Taiwan that
contains any content that ISP Taiwan deems in its sole discretion to be
unacceptable or undesirable.
4. RESPONSIBILITIES AND RIGHTS OF CLIENT
===============================================
4.1 Client. Client represents and warrants that (i) Client is at
least eighteen (18) years of age, (ii) Client possesses the legal
right and ability to enter into this Agreement, and (iii) the
performance of Client's obligations and use of the Services by
Client, its customers and users, will not violate any applicable
laws, regulations or the rules and regulations or cause a breach of
any agreement with any third parties or unreasonably interfere with
other ISP Taiwan Clients' use of Services. Client assumes all risks
related to processing of transactions related to electronic commerce.
Client agrees to provide ISP Taiwan with accurate, complete and updated
information required by the registration of the ISP Taiwan host service
(Client Registration Data), including Client's legal name, address,
telephone number(s), and applicable payment data (e.g., credit card
number and expiration date). Client agrees to notify ISP Taiwan within
thirty (30) days of any changes in Client's Registration Data.
4.2 Breach of Warranties. In the event of the breach of any of the
foregoing warranties, in addition to any other remedies available at
law or in equity, ISP Taiwan will have the right, in its sole discretion,
to suspend or terminate immediately any Services.
4.3 Fees and Expenses. Client shall be responsible for payment of
all costs, fees and expenses assessed by third parties in the course
of being provided Services. Such costs include, but are not limited
to, the fees required to register and maintain domain names, which is
governed by a separate agreement between Client and a third-party
domain name registrar.
4.4 Third-Party Software. Third-party software available through the
Services may be governed by separate end user licenses. By using the
Services and the third-party software, Client agrees to be bound by
the terms of such end user licenses regarding the applicable
third-party software. Client consents and authorizes ISP Taiwan to
delegate the authorizations Client provides to ISP Taiwan to its third
party service provider(s) as ISP Taiwan deems necessary or desirable to
provide the applicable Services. Client agrees that the terms and
conditions of this Agreement, including any of the other terms,
conditions, warranty disclaimers and liability disclaimers
incorporated into this Agreement, inure to the benefit of such third
party service providers and such third party service providers are
deemed to be third party beneficiaries of the Agreement, including
any other terms, conditions, warranty disclaimers and liability
disclaimers incorporated into this Agreement. Client also agrees that
all reference to "ISP Taiwan" within this Agreement and any incorporated
terms are also deemed to include, where applicable, ISP Taiwan's agents,
such as the third party service providers.
4.5 Advertising, Solicitation, and Client Name Harvesting. Client
may not use the Services to send unsolicited advertising, promotional
materials, or other forms of solicitation to the ISP Taiwan clients or
other Internet users unless Client receives the express permission of
such individuals. Client may not use the means of unsolicited
advertising to advertise a site hosted on the ISP Taiwan network. Client
may not use the Services to collect or "harvest" user-names of ISP Taiwan
clients or other Internet users without the expressed prior
permission of the member. ISP Taiwan reserves the right to block or filter
mass email solicitations sent from sites hosted on the ISP Taiwan network.
4.6 Management of Site. Client shall be solely responsible for all
content available on or through its site, and shall at all times be
subject to the terms of this Agreement, ISP Taiwan's then-standard Terms
of Service ("TOS") and any generally applicable guidelines and
service standards published by ISP Taiwan. Client warrants that its site
hosted on the ISP Taiwan network (i) will conform to the ISP Taiwan TOS
attached hereto as Exhibit A; (ii) will not infringe and will not
contain any content that infringes on or violates any copyright, U.S.
patent or any other third-party right; and (iii) will not contain any
content which violates any applicable law, rule or regulation. ISP Taiwan
shall have no obligations with respect to the content available on or
through any site hosted on the ISP Taiwan network, including, but not
limited to, any duty to review or monitor any such content. ISP Taiwan
reserves the right to block any site that violates any of the
above-stated terms, or which in ISP Taiwan's sole discretion, ISP Taiwan deems
objectionable or offensive, or otherwise violates a law or ISP Taiwan
policy, or, in the alternative, to terminate this Agreement in
accordance with Section 7.3 herein.
4.7 Compliance Laws. Client agrees that it will use the Services
only for lawful purposes and in accordance with this Agreement.
Client will comply at all times with all applicable laws and
regulations and the TOS, as updated by ISP Taiwan from time to time. The
TOS are incorporated herein and made a part hereof by this reference.
ISP Taiwan may change the TOS, with notice, which notice may be provided by
posting such new TOS at the ISP Taiwan Site. Client may request a current
copy of the TOS by sending or faxing a request to ISP Taiwan. Client
agrees that it has received, read and understands the current version
of the TOS.
4.8 Proprietary Rights. Unless otherwise specified, all work
performed hereunder by ISP Taiwan, is the property of ISP Taiwan, and all title
and interest therein shall vest in ISP Taiwan. To the extent that title to
any such works may not, by operation of law, vest in ISP Taiwan all
rights, title and interest therein are hereby irrevocably assigned to
ISP Taiwan. All such materials shall belong exclusively to ISP Taiwan, and ISP Taiwan
shall have the right to obtain and to hold in its own name,
copyrights, trademarks, registrations, or such other protection as
may be appropriate to the subject matter; and any extensions and
renewals thereof. Client agrees to give ISP Taiwan and any person
designated by ISP Taiwan such reasonable assistance, at ISP Taiwan's expense,
as is required to perfect the rights defined in this paragraph.
4.9 Marketing Rights. Client agrees that ISP Taiwan may refer to Client,
or Client's business in ISP Taiwan marketing materials, the ISP Taiwan website,
and communication to ISP Taiwan's current and prospective clients. Client
grants ISP Taiwan a limited license and permission to use any Client trade
name and/or trademark for such, and only for such, purposes.
5. LIMITATION OF LIABILITY, NO OTHER WARRANTY AND DISCLAIMER
===============================================
5.1 Limitation. In the event that any limited guarantees are
provided by ISP Taiwan, such limited guarantees are null and void if
Client fails to follow ISP Taiwan's TOS and other policies or otherwise
breaches this Agreement in any respect.
5.2 No Other Warranty. ISP Taiwan does not monitor or exercise control
over the content of the information transmitted through its
facilities. Use of the Services or any information that may be
obtained there from is at Client's own risk. The Services are
provided on an "as is" basis, and Client's use of the Services is at
its own risk. Except as provided in the order form(s), ISP Taiwan does not
make, and hereby disclaims, any and all other express and/or implied
warranties, including, but not limited to, warranties of
merchantability, fitness for a particular purpose, non-infringement
and title, and any warranties arising from a course of dealing,
usage, or trade practice. ISP Taiwan does not represent or warrant that
the Services will be uninterrupted, error-free, or completely secure.
5.3 Disclaimer of Actions Caused by and/or Under the Control of
Third Parties. ISP Taiwan does not and cannot control the flow of
information to or from ISP Taiwan's network and other portions of the
Internet. Such flow depends in large part on the performance of the
Internet services provided or controlled by third parties. At times,
actions or inactions of such third parties may impair or disrupt
Client's connections to the Internet (or portions thereof). ISP Taiwan
cannot guarantee that such events will not occur. Accordingly, ISP Taiwan
disclaims any and all liability resulting from or related to such
events.
6. INDEMNIFICATION
===============================================
Client agrees to indemnify, defend and hold ISP Taiwan and its
affiliates, agents, employees, and licensors (including the third
party service providers) harmless from any and all claim, demand,
loss, costs or expense, including attorneys' fees, made by any person
arising out of Client's violation of this Agreement, State or Federal
Securities laws or regulations, or any other person's rights
including but not limited to infringement of any copyright or
violation of any proprietary or privacy right.
Under no circumstances, including but not limited to a negligent
act, will ISP Taiwan or its affiliates, agents, employees, or licensors
(including third party service providers) be liable for any damages
of any kind that result from the use of, or the inability to use,
Services, even if any such party has been advised of the possibility
of such damages.
In no event will ISP Taiwan or its third party service providers be
liable to Client or any third Party for any tort, contract or any
other liability arising in connection with the use of the Services,
or reliance on any information or services provided by ISP Taiwan. ISP Taiwan
and its third party service providers will under no circumstances be
liable to Client and/or any third party, regardless of the form of
action, for any loss of profits, goodwill, use, data or other
intangible losses, or any direct, indirect, special, consequential,
incidental or punitive damages whatsoever, even if ISP Taiwan or its third
party service providers has been advised of the possibility of such
damages, resulting from: (i) the use of the inability to use the
Services; (ii) the timeliness, deletion, misdelivery, or failure to
store any user date, communications or personalization settings;
(iii) the cost of getting substitute goods and services resulting
from any products, data, information or services purchases or
obtained or messages received or transactions entered into, through
or from the Services; (iv) statements or conduct of anyone on the
Services; (vi) the use, inability to use, unauthorized use,
performance or non-performance of any third party, even if the third
party has been advised previously of the possibility of such damages;
or (vii) any other matter relating to the Services. Client agrees that
Client will not in any way hold ISP Taiwan responsible for any selection or
retention of, or the acts or omissions of, third parties (including
third party service providers) in connection with the Client
Services.
Because some states prohibit the limitation of liability for
consequential or incidental damages, in such states the limitation of
liability only with respect to consequential or incidental damages may
not apply to Client, and the respective liability of ISP Taiwan and its
third party service providers, employees, distributors and agents is
limited to the greatest extent allowable under applicable law in
those states.
In the event that a court or arbitration panel, as the case may be,
should hold that the limitations of liability or remedies available as
set forth in this Agreement, or any portions thereof, are
unenforceable for any reason, or that any of Client's remedies under
this Agreement fail, then Client expressly agrees that under no
circumstances will the total, aggregate liability of ISP Taiwan and its
third party service providers, employees, distributors, agents or
affiliates, to Client or any party claiming by or through Client for
any cause whatsoever exceed $100 (U.S.), regardless of the form of
action and whether in contract, statute, tort or otherwise.
7. TERMINATION
===============================================
7.1 Without Cause. This Agreement may be terminated by either party
at any time during any Renewal Term for any or no reason upon either
party giving to the other no less than five (5) days' prior written
notice of termination. No matter which party terminates the Agreement
pursuant to this Section 7.1, any and all payment obligations of
Client under this Agreement for Service(s) provided through the date
of termination will immediately become due, and Client shall be
required to prepay for any portion of the Services that have not been
paid for and are to be rendered during such five (5) day period.
7.2 For Cause. In addition to any other rights it may have under
this Agreement or applicable law, ISP Taiwan may immediately terminate
this Agreement or suspend service, effective without notice, in the
event of (i) a default in payment, or (ii) Client's breach or failure
to comply with the TOS or other policies of ISP Taiwan. Client may
terminate this Agreement if ISP Taiwan breaches any material term or
written notice of same. If this Agreement is terminated by ISP Taiwan
under this Section 7.2, all balance of the then current term shall
immediately become due and payable. In addition to the foregoing,
ISP Taiwan reserves the right to prohibit any conduct or to remove any
materials or content in violation of the TOS or which ISP Taiwan believes
in its sole discretion to be illegal or potentially harmful to others
or may expose ISP Taiwan to harm or liability.
7.3 No Liability for Termination. Neither party will be liable to
the other for any termination or expiration of any Services of this
Agreement in accordance with its terms.
7.4 Survival. The following provisions will survive any expiration
or termination of the Agreement: Section 4, 5, 6, 7, and 8.
7.5 IP Address. Upon expiration, cancellation or termination of this
Agreement, Client shall relinquish any Internet protocol ("IP")
numbers, address or address blocks assigned to Client by ISP Taiwan or its
network services supplier (but not the URL or top level domain
connected therewith). ISP Taiwan reserves, in its sole discretion, the
right to change or remove any and all such IP numbers, addresses or
address blocks.
8. GENERAL
===============================================
8.1 Assignment. Client may not assign this Agreement or any of
Client's rights or obligations hereunder without the prior written
consent of ISP Taiwan, and any such attempted assignment shall be void.
This Agreement shall be binding upon the parties' respective
successors and permitted assigns.
8.2 Notices. Any notices or communication under this Agreement shall
be in writing and shall be deemed delivered to the party receiving
such communication at the address specified below (1) on the delivery
date if delivered personally to the party, or a representative of the
party; (2) one business day after deposit with a commercial overnight
carrier, with written verification of receipt; (3) five business days
after the mailing date, whether or not received, if sent by US mail,
return receipt requested; (4) on the delivery date if transmitted by
confirmed facsimile.
If to ISP Taiwan:
ISP Taiwan Internet Solutions, Inc.
231 Market Place #180
San Ramon, CA 94583 USA
If to Client:
To Client address provided at account set-up.
8.3 Governing Law. This Agreement, and all future agreements Client
may enter into with ISP Taiwan, unless otherwise indicated on such other
agreement, will be governed by the laws of the State of California,
without regard to conflicts of law principles thereof. This is the
case regardless of whether you reside or transact business with ISP Taiwan
in California or elsewhere. Unless a dispute would be governed by an
applicable arbitration clause, Client agrees to submit to the
personal and exclusive jurisdiction of the courts located within the
County of Contra Costa, California. If any part of the Agreement is
unlawful, void or unenforceable, that part will be deemed severable
and will not affect the validity and enforceability of any remaining
provisions.
8.4 Modifications. No modifications, amendment, supplement to or
waiver of this Agreement or any exhibit hereunder, or any of their
provisions shall be binding upon the parties hereto unless made in
writing and duly signed by both parties.
8.5 Waiver. A failure of either party to exercise any right provided
for herein shall not be deemed to be a waiver of any right hereunder.
8.6 Severability. In the event any one or more of the provisions of
the Agreement or any exhibit is invalid or otherwise unenforceable,
the enforceability of remaining provisions shall be unimpaired.
8.7 Force Majeure. ISP Taiwan and its affiliates, agents, employees, or
licensors (including third party service providers) shall not be
liable for failure to perform any obligation under this Agreement if
such failure is caused by the occurrence of any contingency beyond
the reasonable control of such party, including without limitation,
fire, flood, strike, and other industrial disturbance, failure to
transport, accident, ware, riot, insurrection, act of God or order of
governmental agency. Performance shall be resumed as soon as possible
after cessation of such cause. However, if such inability to perform
continues for fifteen (15) days, the other party may terminate this
Agreement without penalty and without further notice.
8.8 Independent Contractors. The parties to this Agreement are
independent contractors. Neither party is an agent, representative,
or partner of the other party. Neither party shall have any right,
power or authority to enter into any agreement for or on behalf of,
or incur any obligation or liability of, or to otherwise bind, the
other party. This Agreement shall not be interpreted or construed to
create an association, agency, joint venture or partnership between
the parties or to impose any liability attributable to such a
relationship upon either party.
8.9 Terms of Services. Client agrees to be bound by ISP Taiwan's TOS for
all Services and products used by Client. The current TOS can be
found on ISP Taiwan's website at www.ISP Taiwan.com. Should Client disagree
with any updates to ISP Taiwan's TOS, it is Client's responsibility to
notify ISP Taiwan of Client's desire to terminate their Services
immediately.
8.10 Implied Agreement. CONTINUED USE OF THE SERVICES AND/OR
PRODUCTS CONSTITUTES IMPLIED AGREEMENT WITH THIS AGREEMENT AND
ISP Taiwan'S TOS IN THEIR ENTIRETY. BY USING THE SERVICES, CLIENT AGREES
TO BE BOUND BY ALL TERMS ASSOCIATED WITH SAID SERVICES, INCLUDING
THIS AGREMEENT AND THE TOS.
CLIENT'S ONLY RECOURSE IN THE EVENT OF A DISAGREEMENT IS TO
TERMINATE THIS CONTRACT IMMEDIATELY IN ACCORDANCE WITH SECTION 7
HEREIN.
8.11 Entire Agreement. This Agreement, and the exhibits reference
herein, sets forth the entire agreement, and supersedes any and all
prior agreements of the parties with respect to the transactions set
forth herein. Neither party shall be bound by, and each party
specifically objects to, any term, conditions or other provisions
which are different from or in which is proffered by the other party
in any correspondence or other document, unless the party to be bound
thereby specifically agrees to such provision in writing.
8.12 No Party Deemed Drafter. In the event that any provision hereof
is construed by a court of law or equity or an arbitrator, no
provision herein shall be construed more harshly against either party
as drafter.
===============================================
Any questions regarding this agreement should be sent to ISP Taiwan's
sales department [3] prior to signing up for service.
|