(“The Agreement”)
PLEASE READ CAREFULLY BEFORE USING OUR SERVICES
This “Agreement” is entered between Web-hosters.com, a division of ComCity, hereafter referred to as ComCity, and “You“, an individual user and “Customer“, and jointly any “Company” that you duly represent, both of who voluntarily agree to the following terms:
References and additional policies
The following policies and addendums are referenced as a part of this agreement.
Implied Acceptance
You agree that you have reviewed this agreement including all the provisions, references, and additional policies, and software licenses herein declared and referenced, and you accept them by using our software service and websites.
Changes to this Agreement
ComCity may from time to time change or amend these agreements or it’s licenses. If any license or agreement is changed, our notice of such a change will be the public positing of these changes on our website. These changes will be effective immediately or after thirty (30) days from their initial public notice or whichever is soonest by law or statute. You agree that this notice is sufficient and agreeable to you and your continued use of our website, products, or services afterwards constitutes your implied acceptance of the new changes, additions or deletions to the agreement and included provisions. ComCity may assign and transfer this agreement to the benefit of any successor company or individual as it sees fit. If any part or provision of this agreement is declared by a court or authority of competent jurisdiction to be invalid, illegal, or unenforceable, such a provision shall be severed from the Agreement and the other provisions shall remain in full force and effect.
GENERAL TERMS
Payments for advertising and web hosting are due in advance. Web site design/programming contracts require a minimum 50% upfront payment of set-up services and the balance of all fees are due upon completion even if the contract is cancelled. Set-up fees and upfront payments are not subject to refund if a contract is cancelled unless ComCity so deems. All Web hosting service and advertising terms automatically renew upon expiration unless prior written notice (must be by fax or US Mail) of cancellation is received by our office 30 days prior to the date of renewal.
Expiration
All proposals expire 30 days after receipt unless stated otherwise or signed by both parties. ComCity bills 2-3 days before the preceeding month for any services within 45 days of expiration, and Terms are Net 0 from the effective start date. Web site design set-up fees are non-refundable even if the contract is cancelled. Requests for refund or any other billing dispute requests must be delivered in writing by the US Post Office. Cancellations of service requires written notice delivered by US Post Office or Fax machine (you must retain your fax record as receipt).
Attorney’s Fees
Your company agrees to pay reasonable attorney fees and any other reasonable fees required to enforce and defend all terms and conditions of this contract and any other agreement or policy of ComCity. In addition, your company agrees to reimburse ComCity any amounts made on behalf of collecting on delinquent payments or required to enforce the payment terms of this contract.
Privacy and defamatory content
Your company also warrants and represents that icons, graphics, images, company names, and other information which you prescribe to be placed on your web advertisement will not (i) violate any international, federal, state or local law or regulation; (ii) in any way violate or infringe upon any party’s privacy right, right of publicity, or an other right of any person or entity; (iii) contain any material which is unlawful, harmful, abusive, hateful, obscene, threatening, libelous or defamatory. In cases where you violate this, your company agrees to indemnify ComCity against third party suits. ComCity makes no warranties, expressed or implied, regarding content seen or not seen by the public and expressly disclaims responsibility for such content to which you are sorely responsible for deleting, removing or adding from the server and of which you have control of. If you do not have control of the content on your web site, you must provide ComCity 30 days written notice delivered by certified mail via the US post office of this and give us adequate notice of what you wish to do with the content. A simple service cancellation is not adequate notice of a content problem.
Right to Remove
Your company also acknowledges and agrees that ComCity can suspend or remove, at any time, if; (i) ComCity has not received all fees relating to the payment of services rendered; and (ii) ComCity believes, in its sole discretion that advertisements and/or services are in violation of any section of this agreement.
Intellectual Property Rights
Your company agrees that ComCity reserves all Intellectual property rights on web programming, and web customization that we perform for your company including original copyright rights and trademark rights for our source code, scripts and any original graphic designs that we perform on your behalf or for you as part of any contract or agreement. You are granted a limited license and right to use only and are governed by our Software License Agreement and EULA which you may request a copy of at any time.
Disclaimer
Your company agrees that ComCity does not guarantee the effectiveness of your web advertisement, web pages, web hosting, or the effectiveness of your web banner advertisement and we expressly disclaim and excludes all express warranties and implied warranties of merchantability and fitness for a particular purpose. ComCity cannot guarantee impression rates or click-through rates.
Non-Payment of Fees
Your company also acknowledges and agrees that ComCity can suspend or remove advertisements and web pages if; (i) ComCity has not received all fees relating to the payment of services rendered; and (ii) ComCity believes, in its sole discretion that such advertisements and services are in violation of any of the terms of this agreement. Your company further acknowledges and agrees that ComCity is not responsible for and cannot control the content of email messages or fax messages sent to Customers by third parties who access your web page.
Returned Checks
A returned check charge of $25.00 will be incurred for all returned checks or returned credit card charges.
Interruptions in Service
ComCity is not liable for any errors or interruption in service, whether within or outside of ComCity’s reasonable control. Service may be temporarily unavailable for scheduled maintenance, either by ComCity or by third-party providers, or because of other causes either within or outside of our control. If ComCity is found to be liable by an outside agency or through legal relief, you agree that the maximum amount of liability for such finding is limited to the refund of payment made on behalf of those services. ComCity can never be found liable for any consequential damages that may or may not arise out of an interruption in service whether by fault of ComCity or by fault of another within ComCity’s control.
DownTime
ComCity will use its commercially reasonable efforts to avoid Downtime for 99% of the hours as an average calculated over each calendar year. If customer is unable to transmit and receive information from the Network to other portions of the Internet because of ComCity’s failure to provide Network access services (“DownTime”) for more than four (4) continous hours, then ComCity will credit customer’s account for future services based on the pro-rata fees for the continuous duration of such downtime; provided that all such credits will not exceed an aggregate maximum credit of bandwidth fees otherwise due from customer for one (1) calendar month for failures in any one (1) calendar month. For purposes of the foregoing, “unable to transmit and receive” shall mean sustained packet loss in excess of fifty percent (50%) based on ComCity measurements. Customer must notify ComCity within three (3) business days in writing from the time customer becomes eligible to receive this credit with network traceroutes to demonstrate failures. Failure to comply with this requirement will forfeit customer’s right to receive such a credit.
Password Protection
Customer is responsible for protecting Customer’s password and for any authorized or unauthorized use made of Customers’ password. Customer will not use or permit anyone to use ComCity’s service to guess passwords or to access other systems or networks with authorization. ComCity will fully cooperate with law enforcement authorities in the detection and prosecution of illegal activity. If customer loses their password or username, they must request a new password in writing on company letterhead using our prescribed procedures so that we may keep this information in confidence.
Internet Etiquette
Customer is expected to be familiar with and to practice good Internet etiquette (Netiquette). Customer will comply with the rules appropriate to any network to which ComCity may provide access. Customer should not post, transmit, or permit Internet access to information Customer desires to keep confidential. Customer is not permitted to post any material that is illegal, libelous, tortuous, or likely to result in retaliation against ComCity by offended users. ComCity reserves the right to refuse or terminate service at any time. Customer will indemnify ComCity and hold ComCity harmless from any damage to ComCity’s business, service, equipment, network, operations, or reputation resulting from Customer’s actions, including but not limited to any government actions, acts of vandalism or other retaliation, and any claims of libel, unfair competition, infringement of any patent, copyright, trademark, service mark, or other intellectual property right, violation of privacy, or other tort.
Late Payments
ComCity services are due and payable in advance and will bill for services up to 45 days in advance. All payments are due and payable within 0 days of notice by written invoice delivered by standard US post office mail. You and your company agree to pay a late penalty fee equal to 1.5% of the monthly amount due for each month or partial month, or the highest rate allowed by applicable law, on the unpaid balance for any amounts which exceed 30 days. Unless we receive advanced payment, ComCity reserves the right to terminate service without any further warning or notice. Your company also agrees to pay additional late fees according to the following schedule
Billing Disputes
All billing disputes, with ComCity, must be received at our business office, in writing, and the obligation to pay for service will continue until such notice is received or until the contract is fulfilled whichever is later. Written notice must be received by the US post office and because e-mail or electronic mail is not currently deemed 100% reliability, e-mail or verbal notice does not constitute formal written notice. Termination of your service does not constitute relief from amounts incurred prior to termination. Agreements or contracts not on a monthly basis (yearly, quarterly, etc…) can only be cancelled in writing delivered to us by US post office or by fax (please return your fax record as receipt), but the subscriber will be obligated to pay any and all fees until termination of the contract is finalized.
SPAM Policy
The transmission of any type of material, whether graphical or textual in content, to other subscribers or non-subscribers without their express consent or previous solicitation is prohibited under the terms of this agreement. Any violations of our SPAM policy will result in immediate termination. Your company further acknowledges and agrees that ComCity is not responsible for and cannot control the content of email messages or fax messages sent to Customers by third parties who access your web page.
Force Majeure
Neither party will be liable or deemed to be in default for any delay or failure in performance under this Agreement resulting, directly or indirectly, from acts of God, lack of Internet Access or any other reasons commonly known as Force Majeure.
Direct Work
Client and customer agrees not to work, directly or indirectly, with any person or entity (or referral from same) that has ever been an employee, contractor, or agent of ComCity, for a period of two years from the termination or conclusion of this contract, without the express written agreement of ComCity.
Refusal of an Order
ComCity reserves the right to refuse an order or refuse to provide service to any company, person or entity at any time.
Refund Processing
You agree to allow at least 60 days for the processing of any refunds or credits.
Hosting Refunds
Refund requests may be processed on initial hosting terms ONLY if they are received within 60 days of a new hosting account activation. Such requests are treated as a breaking of the original contract, therefore, forfeiting any and all discounted pricing associated with the term offer. ComCity will make adjustments as follows:
1. The hosting account bounces to the month-to-month rate for the package original signed up for. The account is subjected to a normal $50 set-up fee if the hosting is terminated within 90 days for the initial hosting order date. And unused hosting after the above fees are applied, is credited back to the client.
2. Note: There are NO refunds on hosting contract renewals.
Responsibilities
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMCITY MAKES NO WARRANTY, EXPRESSED OR IMPLIED WITH REGARD TO OUR SERVICES OR ANY OTHER MATTER, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES AGAINST CONDITIONS OF INFRINGEMENT, WITH RESPECT TO THE SOFTWARE.
THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
ComCity is not responsible for any damages suffered from the use of our services, including but not limited to, loss of data, service interruptions and/or delays in service, or third party litigation. You expressly agree to hold ComCity harmless for all incidental or consequential damages they may result from any temporary or long term service interruptions whether they are a fault of ComCity or our suppliers. You agree that you are completely responsible for maintaining a backup of your website content at all times and that ComCity does not provide any data backup services. ComCity’s backup capabilities are strictly to maintain a “fail-over” or “recovery” mode data backup. If you need ComCity to search for and recover older or backed up data from our archives, we charge a fee of $250 simply to search for whether the data is backed up and serviceable. If we can find a backup, we charge $200/hour with a minimum fee of $750 to restore the data which we do not guarantee is current to your liking.
Limitation of Liability And Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL COMCITY, OR ANY OTHER PERSON WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF SALESCART AND ITS OFFERINGS, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY GENERAL, DIRECT, INDIRECT, SPECIAL, INTANGIBLE, INCIDENTAL, CONSEQUENTIAL, COVER OR OTHER DAMAGES OF ANY CHARACTER ARISING OUT OF THE AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, LOSS OF DATA, LOSS OF PROFITS, LOSS OF ASSIGNMENTS, DATA OR OUTPUT FROM THE SERVICE BEING RENDERED INACCURATE, FAILURE OF THE SALESCART SERVICE TO OPERATE WITH OR WITHOUT ANY OTHER PROGRAMS, SERVER DOWN TIME, DAMAGES FOR LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES OF WHATEVER NATURE, EVEN IF COMCITY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ANY CASE, THE ENTIRE LIABILITY OF COMCITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR ONE MONTHS USE OF THE SOFTWARE, OR TO $500, WHICHEVER IS THE LESSER AS JUDICIALLY DETERMINED CONTRARY TO THE GENERAL LIABILITY DISCLAIMER.
Indeminification
YOU SHALL INDEMNIFY AND HOLD HARMLESS COMCITY, OUR LICENSORS, PROVIDERS, SUPPLIERS OR AFFILIATES AGAINST ANY LOSSES, EXPENSES, COSTS OR DAMAGES INCURRED BY ANY OR ALL OF THEM AS A RESULT OF YOUR BREACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR FROM THE ORDINARY NORMAL USE OR UNAUTHORIZED USE OF OUR SOFTWARE AND SERVICES AND DIGITAL CONTENT. YOU ALSO AGREE TO INDEMINIFY COMCITY FROM (i) ANY THIRD PARTY CLAIMS THAT ARISE FROM AN INFRINGEMENT OF ANY US PATENT, COPYRIGHT, TRADEMARK LAWS OR AN INFRINGEMENT OF ANY TRADE SECRETS, NON-DISCLOSURE RIGHTS, OR ANY OTHER INTELLECTURAL PROPERTY RIGHTS PERMITTED UNDER US LAW; (ii) IS IN ANY WAY A VIOLATION OR INFRINGEMENT UPON ANY PARTY’S PRIVACY RIGHT, RIGHT OF PUBLICITY, OR ANY OTHER RIGHT OF ANY PERSON OR ENTITY; iii) CONTAINS ANY MATERIAL WHICH IS UNLAWFUL, HARMFUL, ABUSIVE, HATEFUL, OBSCENE, THREATENING, LIBELOUS OR DEFAMATORY. COMCITY SHALL RETAIN THE RIGHT TO IMMEDIATELY REMOVE ANY MATERIAL OFF OF ITS SOFTWARE OR WEBSITES THAT IT BELIEVES IS IN VIOLATION OF THE FORGOING AND THIS PROVISION SHALL NOT BE CONSTRUED TO BE A LIMITATION OF THAT RIGHT. IN SUCH A CASE WHERE ACTION IS BROUGHT AGAINST COMCITY BY ANY PARTY IN RELATION TO SUCH AN INFRINGEMENT, YOU AGREE TO PROVIDE LEGAL DEFENSE TO THE SATISFACTION OF COMCITY IN DEFENSE OF ANY AND ALL CLAIMS UNDER THIS PROVISION. THIS PROVISION SHALL NOT BE INTERPRETED TO MEAN THAT COMCITY RELINQUISHES ITS RIGHT TO RETAIN AND PROVIDE ITS OWN LEGAL COUNSEL AT ITS OWN EXPENSE. IF YOU SETTLE AN INFRINGEMENT CLAIM, YOU AGREE NOT TO BIND COMCITY IN SUCH SETTLEMENT AS RELATED TO YOUR INDEMINIFICATION WITHOUT THE PRIOR WRITTEN CONSENT OF COMCITY. THE PARTIES DISCLAIM THE IMPLIED WARRANTY OF NON-INFRINGEMENT, RELYING INSTEAD ON THESE TERMS. ANY ADDITIONAL LIMITATIONS OF LIABILITY OR DISCLAIMERS OF ANY ASSOCIATED PRODUCTS OR SERVICE PROVIDED BY THIRD PARTY PROVIDERS, SUPPLIERS, OR AFFLIATES SHALL NOT BE CONSTRUED TO OVERRIDE THIS PROVISION AND SHALL BE INTERPRETED INDIVIDUALLY FOR THEIR DISTINCTIVE PRODUCTS AND SERVICES.
Consent to Jurisdiction
If any disputes arise or if litigation is required to enforce any part of this contract, your company agrees that such disputes will be resolved in accordance with the laws of the state of Texas and the venue of resolution is deemed as the county of Williamson in the state of Texas.
Binding Aribitration
Arbitration is more informal and typically less costly than court in that discovery is limited and it doesn’t require a judge or a jury.
You and ComCity agree that any dispute, claim or controversy arising out of or relating in any way to this agreement or with respect to any ComCity product or service, including our website, or our SalesCart software shall be solely resolved by binding arbitration in Round Rock Texas, in Williamson county instead of a court of general or competent jurisdiction. The costs of binding arbitration shall be shared equally among both parties. In the event of such a controversy or claim arising out of or relating to this agreement, or a breach thereof, the parties hereto, shall first attempt to settle the dispute by mediation, administered by the American Arbitration Association under its Mediation Rules. If settlement is not reached within sixty days after service of a written demand for mediation, any unresolved controversy shall be administered by the American Arbitration Association under its Commercial Aribitration Rules using one arbitrator.
Arbitration shall be to the relief of only you or ComCity as a single party. You and ComCity both agree that either shall only bring action against one another in the capacity of an Individual, or company, and not as any member of any class action or as a class member with multiple parties. Unless agreement is reached prior to arbitration, arbitration shall not proceed with the consolidation of more than one claim with your claim and should this provision or this clause be found to be illegal, than this entire Arbitration clause shall be deemed unenforceable, null, and void.
This arbitration clause shall survive indefinitely after termination of service.
Contacting Us and Notice
You may contact us at: PO Box 1183; Round Rock TX 78681. USA. Fax: 866-660-5431 (Toll Free)
Agreement Effective Date: 1/1/2015