ACCESS WEB SOLUTIONS SERVICE AGREEMENT
This Web Space Hosting Agreement ("Agreement") is hereby
entered into between Hosting.Access-Web-Solutions.com (A Division of Access Web
Solutions), herein after referred to as Access Web Solutions, and
____________________("Customer") on the following terms and
conditions.
In consideration of the mutual covenants herein, the parties
agree to the following, which shall apply during the term of this
agreement:
1. SERVICES TO BE PROVIDED BY Access
Web Solutions
Access Web Solutions will provide Web Space Rental
Services (the "Service"). The Service consists of allowing the Customer to
offer content on the Internet. These services include space on Access Web
Solutions Internet Servers to store HTML, multimedia documents, Databases,
Emails and files, the ability to maintain the website and email
accounts.
The terms and conditions of this agreement and any rules and
prices published on the web site at
http://hosting.access-web-solutions.com/aup.html
or any of its domain pointers constitute the entire and only agreement
(collectively the "Service Agreement") between Access Web Solutions and the
Customer (hereby defined as one who has an account with Access Web Solutions
for the Service, including Customer's designated users with respect to the
Service) and supersede all other communications and agreements with regard to
the subject matter hereof.
2. CHANGES TO AGREEMENT/PRICES
Upon notice provided in written, faxed or emailed form
to the Customer, Access Web Solutions may modify this Service Agreement or
Prices and may discontinue or revise any or all aspects of the service at its
sole discretion.
3. RULES AND REGULATIONS
From time to time Access Web Solutions may impose rules
and regulations regarding the use of its services. Such changes in rules and
regulations will be mailed via email and will be incorporated into contract on
the day the mail was sent out.
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3.1 The following are specifically
prohibited on Access Web Solutions Servers:
Illegality in any form, including but not limited to
activities such as unauthorized distribution or copying of copyrighted
software, violation of Indian/Canadian/US./Australian/EU export restrictions,
harassment, fraud, trafficking in obscene material, drug dealing,
gambling/casino sites and other illegal activities.
Net abuse, including
but not limited to activities such as using a non-existent email return address
on a commercial solicitation, spamming (sending unsolicited advertising to
numerous email addresses or newsgroups and/or generating a significantly higher
volume of outgoing email than a normal user), allowing spamming by third
parties to promote a web site hosted by Access Web Solutions, trolling (posting
outrageous messages to generate numerous responses), mail bombing (sending
multiple messages without significant new content to the same user),
subscribing someone else to a mailing list without that person's permission,
cross-posting articles to an excessive number of newsgroups, or attempting
without authorization to enter into a secured computer system, newsgroup
flooding, widespread or organized forgery campaigns, widespread or organized
account hackery, widespread or organized censorship attempts, posting of
defamatory, scandalous, or private information about a person without their
consent, violating trademarks, copyrights, or other intellectual property
rights, misuse of system resources, including but not limited to employing
posts or programs which consume excessive CPU time or storage space; permitting
use of mail services, mail forwarding capabilities, POP accounts, or auto
responders other than for the customer's own account; resale of access to CGI
scripts installed on Access Web Solutions' servers; or attempting to use a
single customer account for third party web sites by allowing more than one
domain pointer to be used to reference pages within the customer's site, etc.
Access Web Solutions reserves the right to determine what constitutes
net abuse.
3.2 Adult Content:
Access Web Solutions does not permit hosting of
Adult Sites or Sites that display Adult Banners on its server. Access Web
Solutions reserves the right to determine what constitutes Adult
Sites.
3.3 Violation of the rules:
Access Web Solutions reserves the right to
immediately suspend all accounts found to be in violation of rules, without
prior notice.
4. LIMITED 30-DAY MONEY-BACK GUARANTEE;
DISCLAIMERS OF WARRANTY; LIMITATIONS ON ACCESS WEB SOLUTIONS's OBLIGATIONS AND
LIABILITIES
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4.1 Access Web Solutions offers a
30-day money-back guarantee on each Plan:
Customer is not completely satisfied with the Plan
within the first 30 days, Customer may cancel this agreement by notifying
Access Web Solutions in writing
(request for refund must be
made in writing to
or faxed at +91 11 2250 8416 in writing to our office within the first 30
days). In such case Customer will receive a full refund of any amounts
paid pursuant to this agreement,
less
transaction/transfer charges and any setup fees. Setup fees will be
refunded only if,
(i) Customer cancels this agreement prior to
account activation, or
(ii) The domain name requested by Customer is
not available.
4.2 After the initial 30-day
period:
If no written claim or objection regarding such
services has been received by Access Web Solutions within the 30-day period,
services provided by Access Web Solutions to Customer shall be deemed accepted
for all purposes. No claim related to such accepted services may be
raised at a later date.
4.3 Access Web Solutions's
liability:
Access Web Solutions's liability to Customer
hereunder is limited to the amount paid to and received by Access Web Solutions
for services not accepted.
ACCESS WEB SOLUTIONS MAKES ABSOLUTELY NO
WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ACCESS
WEB SOLUTIONS CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR
TIME, INTEGRITY OF DATA STORED OR TRANSMITTED VIA ITS SYSTEM. NEITHER ACCESS
WEB SOLUTIONS NOR ANYONE ELSE INVOLVED IN PROVIDING SERVICES PURSUANT TO THIS
AGREEMENT WILL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CLAIMS OR
DAMAGES OF ANY KIND (DIRECT, CONSEQUENTIAL, SPECIAL, OR ANY OTHER) THAT ARISE
OUT OF THE USE OR INABILITY TO USE SUCH SERVICES, WHETHER OR NOT RESULTING FROM
FAULT OR NEGLIGENCE ON ACCESS WEB SOLUTIONS' PART, EVEN IF ACCESS WEB SOLUTIONS
HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
4.4
Customer will take all necessary measures to
preclude Access Web Solutions from being made a party to any lawsuit or claim
regarding Access Web Solutions services provided to Customer. Customer hereby
agrees to indemnify and hold harmless Access Web Solutions from any and all
such lawsuits or claims.
5. PROPERTY RIGHTS
Access Web Solutions owns all rights, title and interest
in and to Access Web Solutions' trade names, service marks, inventions,
copyrights, trade secrets, patents, and know-how relating to the design,
function, or operation of Plans and of the hardware and software systems and
resources necessary to provide the individual service elements of which they
consist. This agreement does not constitute a license to Customer to use Access
Web Solutions' trade names or service marks. Any such license must be the
subject of a separate written agreement.
6. PRIVACY
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6.1
Access Web Solutions will not sell, and will not
knowingly disclose, its customer lists or customer email or listserv address
lists (although it cannot guarantee that such information will never be found
out). Access Web Solutions will cooperate with those attempting to minimize net
abuse, and reserves the right to institute "filters" or other mechanisms as
part of its efforts to reduce net abuse.
6.2
Access Web Solutions will not monitor or disclose
Customer's private email messages unless required to do so by court order or
law, but Access Web Solutions will cooperate with law enforcement authorities
and will notify such authorities if it suspects that Customer is engaged in
illegal activities.
7. CONFIDENTIALITY
May have access to certain information and materials
relating to Access Web Solutions' Customer acknowledges that by reason of its
relationship with Access Web Solutions hereunder, it business plans, customers,
software technology, and marketing strategies that is confidential and of
substantial value to Access Web Solutions, which value would be impaired if
such information were disclosed to third parties. Customer agrees that it will
not use in any way neither for its own account nor for the account of any third
party, not to disclose to any third party, any such information revealed to it
by Access Web Solutions. Customer further agrees that it will take every
reasonable precaution to protect the confidentiality of such information. In
the event of termination of this agreement, Customer shall not disclose any
such confidential information in its possession, and shall return all
confidential materials to Access Web Solutions or destroy them, at Access Web
Solutions' option. The provisions of this section shall survive the termination
of this agreement. Upon any breach or threatened breach of this section, Access
Web Solutions shall be entitled to injunctive relief.
8. RELATIONSHIP OF THE PARTIES; NATURE
OF AGREEMENT
The relationship between Access Web Solutions and
Customer is that of vendor and vendee. The parties shall not be construed as
being in a or part of a joint venture, franchiser/franchisee, or
employer/employee. Even if Customer is an individual, this agreement is a
commercial agreement entered into for business purposes, not a consumer
agreement. Customer has no authority, apparent or otherwise, to contract for or
on behalf of Access Web Solutions, or in any other way legally bind Access Web
Solutions in any fashion, nor shall Customer be authorized to make any
representations about Access Web Solutions or its services other than to set
forth the contents of this agreement, of any Plan(s) contracted for, and of any
rules and regulations promulgated by Access Web Solutions from time to
time.
9. DISPUTES
The parties shall attempt to resolve all
disagreements/disputes arising out of this agreement in a spirit of cooperation
and with a problem-solving mindset, without formal proceedings. Any dispute
which cannot be so resolved (other than the collection of money due on unpaid
invoices, and other than the injunctive relief referred to in paragraph 7)
shall be subject to binding arbitration upon written demand of either party.
The arbitration shall take place before an arbitration panel chosen as follows:
The parties shall each choose an arbitrator, and the two arbitrators shall
choose a third arbitrator and determine the third arbitrator's compensation.
Each party shall have one veto over the choice of the third arbitrator. The
three arbitrators shall schedule an informal proceeding, hear the arguments,
and decide the matter by secret majority vote. Unless the arbitrators decide
otherwise, each party shall pay the costs of its own arbitrator, and shall pay
half of the other costs of the arbitration proceeding. Each party shall have
the right to have the proceedings transcribed. The arbitrators shall not have
the authority to award punitive damages or any other form of relief not
contemplated in the contract. The majority of arbitrators shall render a
written opinion setting forth the basis on which they arrived at the decision
regarding each issue submitted to arbitration; the dissenting arbitrator, if
any, shall not issue or reveal a dissenting opinion. Regarding each issue
submitted to arbitration, the decision shall be final and binding only to the
extent it is accompanied by a written explanation of the basis upon which it
was arrived at. Judgment upon the award, if any, rendered by the arbitrators
may be entered in any court having jurisdiction thereof. Should any legal
action permissible under this agreement be instituted to enforce the terms and
conditions of this agreement, in particular the right to collect money due on
unpaid invoices, the prevailing party shall be entitled to recover reasonable
attorney's fees and expenses incurred at both the trial and appellate
levels.
10. TERM, TERMINATION OF AGREEMENT AND
SERVICES
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10.1 Initial term:
Unless otherwise terminated as set forth herein,
this agreement shall be effective for the term stated in the initial
order.
10.2 Automatic renewal:
This agreement shall be renewed automatically for
subsequent terms of the same length unless, at least twenty (20) days prior to
the next renewal date, one party gives notice of non-renewal to the other. If,
prior to the renewal date, Access Web Solutions tenders to Customer a copy of
Access Web Solutions' then-current Customer Agreement with notice that renewal
is conditioned on Customer's agreement thereto, any renewal by customer will be
deemed to be an acceptance of the terms contained in such subsequent Customer
Agreement, rather than a renewal pursuant to the terms contained herein. Upon
automatic renewal of this Agreement, the Plan(s) accepted by Customer shall be
deemed to be the then-current Plan(s) most closely resembling Customer's prior
accepted Plan(s), provided that such subsequent Plan(s) shall be at least as
favorable to Customer as any prior Plan(s).
10.3 Termination:
This agreement may be terminated and all
accounts/domains of Customer may be shut down in any of the following
ways:
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10.3.1 By Access Web
Solutions,
(i) Upon thirty (30) days' written notice to
Customer, if in the sole judgment of Access Web Solutions, Customer breaches
any material and substantial provision of this agreement and has not cured by
the end of the 30 days.
(ii) Immediately upon written notice to
Customer, in the event that -
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(a) Customer, in the sole judgment of Access
Web Solutions, violates the AUPs, in which case Access Web Solutions may either
terminate this agreement, or suspend it pending discussions with
Customer.
(b) Any payment, draft/check delivered by Customer to
Access Web Solutions in payment for products or services is returned by bank
unpaid and Customer fails to remedy such nonpayment within five business
days; Similarly in the case of credit card payment not received at Access
Web Solutions' end.
(c) Customer becomes more than sixty (60) days in
arrears in payment of its account with Access Web Solutions;
(d)
There are instituted bankruptcy or insolvency proceedings against Customer,
which are not vacated within sixty (60) days from the date of
filing;
(e) Customer institutes voluntary bankruptcy or insolvency
proceedings, or otherwise admits insolvency;
(f) Customer makes an
assignment of all or part of its assets for the benefit of
creditors;
(g) Customer assigns or attempts to assign all or any part
of this Agreement without Access Web Solutions' prior written approval;
or
(h) Customer fails to inform Access Web Solutions in writing
immediately on the happening of any event specified in this section;
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(iii) Site(s) that will be immediately shut
down without written notice to Customer.
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(a) Customer site is found to be a Warez
(illegal software), Adult site, links or advertising for an Adult Site,
hacker/cracker site, hate site, gambling or Casino sites etc. Access Web
Solutions reserves the right to determine and judge in its sole and absolute
discretion which site is inappropriate.
(b) Customer's who have
incorrect or bad scripts running on shared servers that result in increased CPU
usage, slow down of the server(s) and/or stoppage of the server will have their
sites shut down immediately until the problem is corrected. Access Web
Solutions will not be held responsible in any way for the downtime associated
with Customer's bad scripts that require closure of the responsible site, nor
will any financial remuneration or refund be issued for such a
closure.
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10.3.2 By Customer,
(i) Immediately upon giving written notice to
Access Web Solutions, if
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(a) There are instituted bankruptcy or
insolvency proceedings against Access Web Solutions, which are not vacated
within sixty (60)days from the date of filing;
(b) Access Web
Solutions institutes voluntary bankruptcy or insolvency proceedings, or
otherwise admits insolvency;
(c) Access Web Solutions makes an
assignment of all or part of its assets for the benefit of creditors;
or
(d) Access Web Solutions fails to inform Customer in writing
immediately on the happening of any event specified in this section.
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Customer will be responsible for paying the costs of
enforcing any unpaid obligations to Access Web Solutions, including reasonable
attorney fees.
11. PAYMENT METHODS
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11.1 Credit Card Payment:
By paying for their account by credit card, whether
by online order form, fax or phone, Customer hereby agrees to authorize all
recurring charges to the account and any other balances incurred due to
overages of limits, additions of extras to the account, service charges and/or
any other fees.
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11.1.1
A customer who is paying through credit card will
allow Access Web Solutions® to charge to the customer's credit card every
quarter or annually, as the case may be, renewal charges without reference to
the customer. If the customer does not wish to continue with AWS services, it
may intimate 5 business days in advance before the renewal date of its
intention. In that case AWS will not avail of the facility of automatic
renewal.
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11.2 Check Payment:
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11.2.1
Customer paying by check will not receive access to
their account or web site until Access Web Solutions receives payment to the
credit in its account. For accounts paid by check, Access Web Solutions
requires payment for a minimum quarterly period.
11.2.2
Payment for any charges is due upon the date of the
invoice. Accounts, which have balances outstanding, shall be deemed to be in
default and subject to termination of service. Any charge that is not paid
within thirty (30) days from the date of the invoice shall be subject to an
interest rate of 1.5% per month, or the maximum allowed by law. Customer shall
be responsible for all costs of collection, including reasonable attorney's
fees and court costs, in event of a default for nonpayment of any amounts due
to Access Web Solutions.
12. REFUNDS
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12.1 Valid Complaint:
All refunds requested with a "valid complaint" will
receive a refund of the charged periods. Charged periods are solely determined
by Access Web Solutions. Access Web Solutions shall determine what constitutes
a "valid complaint" in its sole and absolute discretion.
12.2
Customer will not receive a refund for any other
reason, including but not limited to: late cancellation, slow connection caused
by Customer's ISP/network, Customer's ignorance, Registration delays, account
termination for violation of policies.
12.3
Customer will not receive a refund for any setup
fees or any fees other than the monthly recurring hosting fees.
13. DOMAIN DELETIONS
Domain deletion of any/all Customer domains that are
hosted on Access Web Solutions servers MUST be specifically requested in
writing by filling out the DELETION REQUEST FORM. Access Web Solutions will not
be held responsible for any charges incurred by a Customer who fails to fill
out the DELETION REQUEST FORM for the removal of a domain(s) from their
account. Until the DELETION REQUEST FORM is filled out, charges will apply for
the domain(s) in question.
14. NONASSIGNABILITY
Customer's rights and obligations under this agreement
may not be transferred or assigned directly or indirectly without the prior
written consent of Access Web Solutions, which consent shall not be
unreasonably refused. Access Web Solutions' rights and obligations under this
agreement may be transferred and assigned only if such transfer or assignment
does not adversely affect the services provided to Customer
hereunder.
15. PARTIAL INVALIDITY
If any provision of this agreement is held to be invalid
by a court of competent jurisdiction, then the remaining provisions shall
nevertheless remain in full force and effect. Access Web Solutions and Customer
agree to renegotiate in good faith any term held invalid and to be bound by
mutually agreed substitute provision.
16. APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement takes effect when accepted by Access Web
Solutions in New Delhi. It is to be governed by and construed under the laws of
New Delhi, India. The courts of New Delhi, India shall have exclusive
jurisdiction to adjudicate any non-arbitral dispute arising out of this
agreement. Customer hereby expressly consents to:
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(i) The jurisdiction of the courts of New
Delhi, India and
(ii) Service of process being effective upon it
by registered mail sent to the address set forth at the beginning of this
document, as may be changed from time to time by written notice actually
received by Access Web Solutions. Unless prohibited by the law of Customer's
jurisdiction, Customer waives any requirement that service of process or of any
documents be made upon it pursuant to the provisions of the Hague
Convention.
17. NOTICES
Except with respect to service of process as set forth
in paragraph 13, all notices may be sent by email, fax, or express mail to the
email address, fax number, or address most recently provided and will be
effective upon transmission. Evidence of successful transmission shall be
retained.
18. ENTIRE AGREEMENT;
MODIFICATIONS
This agreement sets forth the entire agreement and
understanding between the parties and merges all prior discussion between them.
Access Web Solutions may make changes to this agreement upon written notice to
Customer, advising of the change and the effective date thereof. Utilization of
Access Web Solutions services by Customer and/or its Customers following the
effective date of such change shall constitute acceptance by Customer of such
change(s). Otherwise, this agreement may not be modified except by the written
consent of both parties.
Access Web Solutions
#24, Kamayani
Kunj, 69, IPEX,
New Delhi - 110092 INDIA
PHONE: +91 9811 124576
FAX:
+91 11 2250-8416
