This E-Mail Hosting Agreement ("Agreement") is made and entered into by and between you ("Customer") and DOTMED.COM, INC. ("Company"), a New York corporation.
WHEREAS, Customer desires to engage Company to provide electronic mail services ("E-Mail") in accordance with the description set forth in Schedule A attached hereto.
NOW, THEREFORE, for the mutual consideration set forth herein, the adequacy of which is hereby acknowledged, Customer and Company, intending to be legally bound, hereby agree as follows:
1.1 License. Company grants to Customer a revocable, non-exclusive, non-transferable and limited license to use the E-Mail.
1.2 E-Mail Hosting. Company shall host the E-Mail, on the Company E-Mail server ("Server"), on a month/quarter/year to month/quarter/year basis.
1.3 User Availability. Company shall use commercially practical and reasonable efforts to make the E-Mail available to internet users approximately 24 hours per day and 7 days per week. No assurance is given regarding any minimum availability.
1.4 Response Time. Company shall use commercially practical and reasonable efforts to ensure acceptable response times for users accessing the E-Mail. However, no assurances are given regarding any minimum response time.
1.5 No E-Mail Back-Up. Once E-Mail is downloaded no back-up is maintained.
1.6 No Transaction Information. No transaction activity summary is maintained in connection with sending/receiving E-Mail.
1.7 Other Services. Unless separately agreed upon by the parties, the services provided by Company hereunder are expressly limited to E-Mail hosting only.
1.8 System Degradation. In the event there is system degradation, to protect Server and E-Mail, Company reserves the right in its sole discretion to temporarily or permanently filter or block the E-Mail.
2. PROPRIETARY RIGHTS
Company owns all right, title and interest (including copyright and other proprietary or intellectual property rights) to and in the Server, other Company facilities and Company internet sites. Customer shall unconditionally protect all items which Company has an ownership interest in from disclosure or use other than as expressly permitted by this Agreement. The parties hereto agree that the violation of this provision by Customer shall result in substantial and irreparable damage to Company for which damage a remedy at law shall not be adequate and Company shall be entitled to injunctive relief, both mandatory and restraining, in addition to any other rights and remedies of Company under this Agreement and at law or in equity.
3. NO DATA SECURITY
Internet data transmission is not secure. Company may use, copy, display, store, transmit, translate, rearrange or reformat, view and distribute the transmitted data of E-Mail for technical operation purposes. No assurance is given as to privacy/security of any data, in whole or in part.
4. SERVICE FEES
The price for E-Mail hosting is set forth in Schedule A. Fees are not refundable once paid. All invoices are due when issued. An interest rate of one and one-half percent (1 1/2%) per month, or the maximum late payment charge permitted by applicable law, whichever is less, is charged upon any unpaid amounts that are in default. Access to the E-Mail and/or the hosting of the E-Mail may be suspended or terminated, without notice, at the option of Company, in the event payment is not timely made. Time is of the essence.
5. CUSTOMER RESPONSIBILITY
5.1 Liability/Loss. Customer shall be solely responsible for any liability, loss or damage in connection with use of the E-Mail by Customer.
5.2 Data Management. Customer shall be solely responsible for management of data stored on or transmitted by E-Mail. Such management includes, but is not limited to, backup and restoration of data.
5.3 Security. Customer shall be solely responsible to maintain any security procedures Customer deems appropriate, such as encryption of data, to protect Customer.s information.
6. CUSTOMER WARRANTY
Customer warrants to Company that it shall not conduct the following in connection with the E-Mail:
Customer agrees to indemnify, hold harmless and defend Company and its directors, officers, employees and agents from and against any action, claim, demand or liability, including reasonable attorneys. fees and costs, arising from or relating to the E-Mail or any acts or omissions of Customer.
SERVICES PROVIDED BY COMPANY HEREUNDER ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. IN NO EVENT SHALL COMPANY NOR ITS THIRD PARTY VENDORS BE LIABLE TO CUSTOMER FOR ANY DIRECT (EXCEEDING THE GREATER OF (A) THE AMOUNT ACTUALLY PAID TO COMPANY UNDER THE AGREEMENT, OR (B) $1,000.00), INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, TANGIBLE OR INTANGIBLE DAMAGES CUSTOMER MAY INCUR IN CONNECTION WITH ITS USE OF THE E-MAIL, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOST REVENUE, LOST PROFITS, LOST USE, LOST GOODWILL (OR SIMILAR FINANCIAL LOSS), ANY PAYMENT MADE TO A THIRD PARTY, BUSINESS INTERRUPTION, LOST INFORMATION OR DATA, COMPUTER INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS AND DAMAGES RESULTED FROM INTERCEPTION OF THE E-MAIL BY THIRD PARTIES OR RESULTED FROM LEAVING THE E-MAIL VIA A LINKED E-MAIL, EVEN IF COMPANY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
9.2 Allocation of Risk. THIS LIMITATION OF DAMAGES PROVISION IS UNDERSTOOD TO BE AN ALLOCATION OF RISK BETWEEN THE PARTIES, WHICH IS COMPLETELY SEPARATE AND INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT.
10. TERM AND TERMINATION
10.1 Term. This Agreement shall be effective as of the Effective Date and shall remain in force, unless otherwise terminated as provided herein.
10.2 Termination. Either party may terminate this Agreement upon prior written notice.
10.3 Survival. In the event of any termination of this Agreement, Sections 3, 4, 7 & 9 and any other section hereof which by its nature should survive, shall survive and continue in effect and shall inure to the benefit of and be binding upon the parties and their legal representatives, heirs, successors, and assigns.
11. GENERAL TERMS
11.1 Independent Contractor. The relationship between the parties hereto is not that of employment, agency, joint venture, partnership or any other relationship other than independent contractor only.
11.2 No Waiver. No delay or omission by Company hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits thereof. A waiver by either of the parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained (whether or not the provision is similar). Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
11.3 Governing Law, Jurisdiction & Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to the choice of law provisions thereof. Without limiting the arbitration provision herein, the parties hereto hereby consent to the jurisdiction of the federal and state courts having jurisdiction in New York County, State of New York, for any action that may be brought in connection with this Agreement.
11.4 Arbitration. Any controversy or claim arising out of or relating to this Agreement or the breach thereof (including, any claim based upon a state or federal statute) will be settled by arbitration, before one arbitrator in accordance with the rules of the American Arbitration Association then in effect and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator will be selected by the parties, from a panel of attorney arbitrators experienced with the computer industry. Any arbitration shall be held in New York, New York, at the offices of the American Arbitration Association. The language of arbitration shall be English. The arbitrator will have no authority to award damages not measured by the prevailing party's actual damages, and may not, in any event, make any relief, finding or award that does not conform to the terms and conditions of this Agreement. The parties shall share equally the costs of the arbitration and each party shall bear its own attorneys' fees unless otherwise expressly authorized in this Agreement. Either party, before or during or after any arbitration, may apply to a court having jurisdiction for a temporary, provisional or permanent order of relief to protect its interests. Prior to initiation of arbitration, the aggrieved party will give the other party written notice, in accordance with this Agreement, describing the claim and amount as to which it intends to initiate arbitration.
11.5 Severability. If any provision of this Agreement or any word, phrase, clause, sentence, or other portion thereof should be held to be unenforceable or invalid for any reason, then the remaining provisions of this Agreement shall remain in full effect, and such unenforceable or invalid provision or portion thereof shall be modified or deleted in such manner as to best reflect the commercial intent of parties as expressed herein and to render this Agreement as modified legal and enforceable to the maximum extent permitted under applicable laws.
11.6 Notices. Under this Agreement if one party is required or permitted to give notice to the other, such notice shall be deemed given either (a) when transmitted by facsimile; (b) two business days after depositing the notice in the U.S. mail, first-class postage prepaid, if the notice was sent to the last known address of the other party; or (c) when transmitted by E-Mail.
11.7 No Assignment. Customer may not, without the prior written consent of Company, assign, transfer, subcontract, or sublicense this Agreement or any right/obligation hereunder. Company may assign, transfer, subcontract, or sublicense this Agreement or any right/obligation hereunder.
11.8 Entire Agreement. Each party to this Agreement acknowledges that this Agreement constitutes the entire Agreement of the parties with regard to the subject matters hereof, that this Agreement supersedes all prior or contemporaneous agreements, discussions, or representations, whether oral or written, with respect to the subject matter hereof, and that this Agreement cannot be varied, amended, changed, waived, or discharged except by a writing signed by all parties hereto. Each party to this Agreement further acknowledges that no promises, representations, inducements, agreements, or warranties, other than those set forth herein, have been made to induce the execution of this Agreement by said party, and each party acknowledges that it has not executed this Agreement in reliance on any promise, representation, inducement, or warranty not contained herein.
11.9 Multiple Counterparts. This Agreement may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the parties.