Frynge dot com server / service agreement

Frynge dot com 2006 Agreement Version Frynge dot com (we, us, our) and (you, your) agree to the following:

1.0 Definitions.

1.1 "Customer" means the person who orders the Reseller Account or Hosting Account and has ownership and control rights and obligations for the Reseller Accounts or Hosting Account.

1.2 "Customer Data" means all supporting data files and data structures provided by the Customer for its Reseller Account or Hosting Account.

1.3 "Reseller Account" "Hosting Account" means the server space and software services provided to the Customer including but not limited to the HTTP service, FTP service, SMTP service, POP service, server extensions, third-party software, and CGI library scripts.

1.4 "Physical Server" means the serving computers, hardware and operating- system, and software necessary to operate and support the Reseller Account / Hosting Account in accordance with this Agreement.

1.5 "Month" means a billing month. A billing Month starts on the 26th day of one calendar month, and ends on the 25th day of the next calendar month.

2.0 Scope of Services. We will provide you with the following specific services:

2.1 Physical Server Hardware and Software Services. We will provide the Physical Servers and other computer and operating-system software to operate and support the Reseller Account / Hosting Account in a manner acceptable in the industry. Although we will make reasonable efforts to protect and backup data for you on a regular basis, we are not responsible for the Customer Data residing on the Reseller Account / Hosting Account. You are ultimately and solely responsible for the backup of Customer Data stored on your Reseller Account / Hosting Account. You can back up your Data with our control panel at any time.

2.2 Physical Server Set-Up and Updating. We will configure the Reseller Account / Hosting Account, and Customer will load the Customer Data onto the server computers so as to create a fully functional Internet presence. After the Reseller Account / Hosting Account is loaded, set up with the Customer Data, and is fully operational, Customer will be responsible for all Web Server content management.

2.3 Physical Server Connection and Access. We will provide connection of the Reseller Account / Hosting Account to the Internet, including all telecommunications equipment and connections for the Reseller Account / Hosting Account to provide public access on a 24-hour-a-day, 7-day-a-week basis, with the exception of scheduled maintenance downtime. We will use our best efforts to provide uninterrupted Physical Server Connection and Access, except for scheduled maintenance downtime and any interruption to Physical Server Connection and Access beyond our control caused by, for example, acts of nature, third-party equipment or transmission failures, or security breaches.

2.4 Maintenance Services. We will perform maintenance services as we determine reasonably necessary to maintain the continuous operation of the Reseller Account / Hosting Account. You agree to periodically-scheduled maintenance downtime periods. We will provide prior notice of the maintenance downtime, except when circumstances beyond our control limit our ability to do so.

2.5 Hardware, Equipment and Software. You are responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access us. We make no representations, warranties, or assurances that your equipment will be compatible with our service.

3.0 Payment Terms. You agree to the following payment terms in consideration for the services provided:

3.1 Set-Up Fee. You will pay us a one-time, non-refundable set-up fee according to our current Reseller Account / Hosting Account Price Schedule or Hosting Plans, which is available on our hosting page (www.frynge.com/hosting.htm) or upon request.

3.2 Contract Length. You understand and agree that the Reseller Account / Hosting Account plan is provided on an initial 12 month contract length to avoid setup fees. If you take shorter contract lengths we may require a setup fee.

The first month is defined as the billing month in which you first had access to your account, regardless of whether you actually made use of your account.

For purposes of billing, you understand and agree that any final charges that are incurred on your account after the contract length is terminated will be assessed against the credit card on file, and this assessment may occur after the last day of your contractual period. You understand and agree that such charges are still your responsibility whether billed to your credit card or billed to you via US Mail, Fax or E-mail and payment obligations, section, 3.5, 3.6, 3.7, 3.8, and 3.9 will remain in effect and will survive the contract ending period.

3.3 Cancellation. In the event you cancel your service, you will be charged in full for the entire billing cycle month in which you canceled your service. In the event you have elected to prepay subsequent, additional billing cycle months' Service Fees, we retain the right to charge you an administrative fee and deduct the administrative fee from the subsequent, future billing cycle months' Service Fees before refunding them to you.

3.4 Breach. In the event we terminate this Agreement because of a breach, you will be charged in full for the entire month or year in which the breach occurred. depending on how you have payed or prepayed.

3.5 Tax. These fees are exclusive of any and all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the services provided under this Agreement, except that your income taxes and any sales or similar taxes on the sale of the Customer products and services to end users shall be the sole responsibility of the Customer.

3.6 All costs associated with returned checks will also be your responsibility and such charges will be added to your account balance. An administrative fee to be no less than $30.00 or no more than the statutory maximum, whichever is greater, for such returned checks may be assessed and added to your account balance by us.

3.7 In the event, it is necessary to refer your account to a collection agency in the Canada or in your country of origin, a collection fee of 40% of the account balance submitted for collections will be applied to your account to pay for services of the collection agency. This fee is in addition to the amount being collected as an outstanding balance on your account, and is payable in full. Failure to pay an outstanding balance may be reported to any and all credit reporting agencies according to the laws governing such action within the United States and/or your country. Any and all fees associated with the collection of your account, including expenses incurred by us will be passed on as part of the outstanding debt owed including but not limited to costs for long distance phone calls, fax charges, court appearances, and attorney fees as it relates to the collection of your account.

3.8 You agree to pay all fees by the due date on invoices sent by us whether the invoice is sent by electronic mail, facsimile, or by US Postal mail. Accounts that are delinquent may be canceled for non-payment. To re-instate your account, a new setup fee, will be incurred at the current rates, subject to approval of credit, if you have set a monthly contract up with us.

3.9 Accounts that are delinquent more than 30 days are subject to a Late Payment Fee of $30.00 for each billing cycle the payment is late. In addition, you understand and agree that a finance change of 1 1/2% per month may be assesed on all account balances that are late by more than 30 days and interest will accrue at the rate of 1 1/2% for each 30 day cycle a balance is owed and is calculated on the average daily balance.

3.10 Representations and Warranties. Our obligations under this Agreement are conditioned upon the following representations and warranties:

4.0 Compliance with Law. You represent and warrant that you will comply with all applicable state and federal laws in your performance of this Agreement and in the use and operation of the Reseller Account / Hosting Account, including laws governing technology, software and trade secrets. If you have breached these Terms of Service or have been suspected of breaching these agreements, we reserve the right to take down your site until these issues can be resolved.

4.1 Authority to Contract. You represent and warrant that you have full authority and right to enter into this Agreement and that there are no conflicting claims relating to the rights granted by this Agreement.

4.2 Non-Infringement. You represent and warrant that your performance of this Agreement and providing the Web Service, including the software or data files, shall not infringe the intellectual property or other proprietary rights of any third party.

4.3 Our Performance. We represent and warrant that our services shall be performed in a professional and workmanlike manner, and the computer servers will be operated in accordance with our obligations as defined by this Agreement.

4.4 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED ABOVE, WE MAKE NO WARRANTY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, AND ALL SERVICES ARE PROVIDED ON AN "AS-IS", "AS-AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT.

5.0 You expressly agree that use of our Reseller Account / Hosting Account is at your own risk. Neither we, our employees, affiliates, agents, third-party information providers, merchants, licensors or the like, warranty that our service will not be interrupted or error free; nor do we make any warranty as to the results that may be obtained from the use of our service or as to the accuracy, reliability or content of any information serviced or merchandise contained in or provided through our service, unless otherwise expressly stated in this Agreement.

5.1 Under no circumstances, including negligence, will we, our officers, agents or anyone else involved in creating, producing or distributing our service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use our service. We will further not be liable for results from mistakes, omissions, interruptions, deletions of files, errors, defects, delays and operation, or transmission or failure of performance whether or not limited to acts of nature, communication failure, theft, destruction or unauthorized access to our records, programs or services. You acknowledge that this paragraph shall apply to all content on our Reseller Account / Hosting Account, any physical server, computer, hardware, software, paper files that we maintain, operate or store.

5.2 Your exclusive remedy for all damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) will not (a) exceed the actual dollar amount which you paid during the billing month in which the cause of action arose, or (b) include any incidental, consequential, extemporary or punitive damages of any kind, including without limitation, loss of data, file, profit, good will, time, savings or revenue.

6.0 Term and Termination. The following describes the effective date, duration and methods of termination:

6.1 Effective Date. The Effective Date of this Agreement is determined to be the first date in which the Reseller Account / Hosting Account was online for use, regardless of whether or not you make use of the Reseller Account / Hosting Account on this or after this date.

6.2 Duration. This Agreement will commence on the Effective Date and continue on a month-to-month basis.

6.3 Termination for Convenience. Subject to Section 3.4, you may terminate this Agreement at any time for your convenience by providing us with advance written notice at least 48 hours prior to the time you wish to terminate this agreement.

6.4 Breach or Default. The following constitute a breach or default of this Agreement: your failure to pay the current month's service fee by the due date of such service fee, your violation of Section 8.0, your violation of 9.2, or your violation of Sections 4.0, 4.1, 4.2 or 4.3.

6.5 Special Lien on Personal Property. We retain a special lien on all of your personal property in our possession to secure any payment amount you may owe us under this Agreement, including but not limited to, domain names, data residing on the Reseller Account / Hosting Account, email or any other form of property whether in electronic or physical form.

7.0 Ownership Rights. We acknowledge that all right, title and interest in the customer data shall be solely owned by the customer. We own or have licensed all server software. In the event that we elect, at our option, to provide custom software to you, this software will be licensed to you for use only on our Reseller Account / Hosting Account on a non-exclusive, royalty-free, fully-paid basis according to the terms of this Agreement.

8.0 Activities Subject to Immediate Deactivation. Any Reseller Account / Hosting Account that is used for Illegal, Abusive or Unethical Activity may be immediately deactivated by us without warning to you. Illegal, Abusive or Unethical Activities include, but are not limited to, pornography, obscenity, nudity, violations of privacy, hacking, computer virus, phishing sites, spamming, software piracy, gambling, or promotion of gambling, and any harassing or harmful materials or uses, as determined by us. You agree to indemnify and hold us harmless from any claim resulting from your publications or use of Illegal, Abusive or Unethical materials. Although we will make reasonable efforts to alert you to such activities and allow you an opportunity to cure them within a 12-hour period after discovery, we are not required to give notice before deactivating your use of our services if, in our discretion, your use is or results in Illegal, Abusive or Unethical activities. If a Reseller Account / Hosting Account is disabled, the regular monthly fees still apply.

9.0 Miscellaneous.

9.1 Public Nature of Internet. Please understand that all information submitted on the Reseller Account / Hosting Account shall be considered publicly accessible. Important and private information should be protected by you. For example, we are not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider that you may use.

9.2 Unsolicited Electronic Mail.

NO SPAM.
We do not permit our customers to send or use unsolicited bulk messages, commonly known as "spam".

"Unsolicited bulk messages" are substantially similar messages sent to multiple recipients who do not personally know you (other than confirmation messages sent to people who have engaged in a transaction with you), unless you can prove that each recipient has given your organization (or the e-mail sender's organization, if different) explicit verified prior consent to send such messages; OR any discussion group message that primarily promotes your interests without contributing to an ongoing discussion (except in the case of messages to groups with a charter or FAQ that specifically encourages "announcements" related to your topic). The definition includes messages sent through our servers or through any other servers.

In detail:

You may not send unsolicited bulk messages (even if you obtained the list of recipients from a third party who claims they are "opt-in"), nor allow others to send unsolicited bulk messages on your behalf.
You may not engage in activities that are likely to cause our computer systems to be added to antispam blacklists, such as the MAPS RBL or MAPS NML.
You may not provide support to others who send unsolicited bulk messages (for example, by offering e-mail addresses or bulk mail software for sale).
You may not violate any laws regulating spam, including those listed at SpamLaws.com.
You may not have engaged in these prohibited activities elsewhere.
If you wish to operate a legitimate mailing list (i.e., you wish to send bulk messages to recipients who have consented to receive them), your mailing list must conform to accepted spam prevention guidelines detailed at MAPS, SpamCop and abuse.net. In particular, you must demonstrate that your mailing list only sends messages to people who have explicitly given your organization prior consent to send them such information, that you verify each subscription request to ensure that one person cannot subscribe another person without the latter's permission, and that you permanently maintain records of the verification date and IP address (or similarly reliable method, as documented at MAPS) for each recipient. (The mailing list software we provide meets these spam prevention guidelines and automatically maintains the necessary records for all recipient-initiated subscriptions, so this section is only of concern if you send bulk messages without using our software to verify each subscription.)
If a dispute arises as to whether a recipient "opted in" to a legitimate mailing list for which you are required to maintain the verification records, you agree to provide us on request with a complete copy of the records for all mailing list recipients within one business day so we can resolve the issue while maintaining the complainant's privacy. At our discretion, we may suspend your ability to use the services until you provide us with these records.

By way of example, note that this section of the Agreement prohibits promoting your Web site by sending e-mail messages to a list of addresses that you obtained from a third party, or that you compiled from public sources such as Web pages.

As another example, this section also prohibits promoting your Web site by posting messages to Usenet newsgroups, unless that newsgroup's charter specifically allows such announcements or you are legitimately participating in active discussions that include other people ("legitimately participating" means posting messages that go beyond simply advertising your Web site).

You are expressly prohibited from sending unsolicited bulk mail messages ("junk mail" or "spam"). This includes, but is not limited to, bulk-mailing of commercial advertising, information announcements, and political tracts. Such material may only be sent to those who have specifically requested it. Malicious or threatening email is also prohibited. Although we will make reasonable efforts to alert you to such activities and allow you an opportunity to cure them within a 12-hour period after discovery, we reserve the right to immediately deactivate your use of our service if we discover such activity. Further, you agree to indemnify and hold us harmless from any claim resulting from your use or distribution of electronic mail services through the service provided through this Agreement.

9.3 Governing Law and Attorneys' Fees. This Agreement will be interpreted and applied in accordance with the laws of the Province of Alberta, without regard to the conflicts of law provisions. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees, whether or not a suit is actually filed.

9.4 Control and Ownership of IP. We maintain and control ownership of all IP numbers and addresses that may be assigned to you, and we reserve, in our sole discretion, the right to change or remove any and all IP numbers and addresses.

9.5 Resale of Services and Flow-down of Obligations. You may resell space on your own Reseller Accounts but you must first obligate any such resale to the same terms of this Agreement and incorporate into that resale all of our rights, including our rights regarding content and activity.

9.6 Age. You certify that you are at least 18 years of age.

9.7 Transfer. You may not transfer or assign this Agreement without the written consent of Frynge dot Com.

9.8 Frynge dot com , it's parent companies or associate companies reserves the right to refuse service at our discretion without notice and/or with or without cause with exception of race, nationality, creed, sexual orientation, religion or gender.

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