1. This agreement shall be for an “Initial term” of thirty (30) days for Hosting. Customer agrees to all terms and conditions of services provided by ni-on.com, beginning upon receipt by fax, e-mail, or express mail.
2. All charges for Services are non-refundable and must be paid in advance according to the then current price applicable to the Services. Upon registration for Hosting Services, customer must choose to pay for the Services either by credit card via paypal or upon your receipt of an invoice. If customer chooses to pay by credit card upon registering for Hosting Services, customer thereby authorizes ni-on.com to charge you to pay for any charges that may apply to your account. Customer agrees that ni-on.com may accumulate any supplemental charges, as described in the Order Form, incurred by you in your use of the Services (“Supplemental Charges”) until such charges exceed $20 and then invoice the charges to customer. Customer must notify ni-on.com of any changes to your billing information, your billing address, or any information that may prohibit ni-on.com from charging you. If customer chooses to be invoiced upon registration for Hosting Services, ni-on.com will send an invoice to you for the Services applicable to the period for which you have registered for the Services. ni-on.com may also send periodic invoices to customer for any applicable Supplemental Charges associated with your use of the Services.
Customer agrees to pay to ni-on.com the amount indicated in each invoice by the due date reflected on the invoice. If customer fails to pay any fees and taxes within three (3) days from applicable due date for credit card or invoice payments, late charges of the lesser of one and one-half per cent (1.5%) per month or the maximum allowable under applicable law shall also become payable by you to ni-on.com. In addition, customer’s failure to fully pay any fees and taxes within five (5) days after the applicable due date will be deemed a material breach of this Agreement, justifying ni-on.com suspension of its performance of the Services and/or termination of this Agreement. Customer is responsible for any fees associated with reinstated of Services. Any such termination would not relieve customer from paying past due fees plus interest. In the event of collection enforcement, customer will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys’ fees, court costs and collection agency fees.
3. This Agreement will be automatically renewed (the “Renewal Term”) at the end of the Initial Term for the same period as the Initial Term unless you provide ni-on.com with notice of termination either (a) at least thirty (30) days prior to the end of the Initial Term or the Renewal Term, whichever is then applicable.
4. Initial payment is due upon activation of account. Activation takes effect on the date of receipt of payment, and will be renewed automatically for identical successive periods. Any changes made to the customer’s package shall be billed accordingly.
5. All orders are subject to acceptance by ni-on.com. An order will be deemed accepted by our company when confirmation of the order is sent to the customer. We may refuse to accept any order, or delay acceptance awaiting completion of conditions the company may choose to exercise. Such refusal of such conditions may not be unreasonable, however, and ni-on.com agrees to provide the customer with reasonable notice by E-mail or fax of any intent to delay or decline the acceptance of any order.
6. ni-on.com reserves the right to suspend the customer’s account and services without notice should there be any problems with the customers method of payment. This includes expired credit cards, declined credit cards, inactive credit cards, failed subscription payments, and invalid checks or echecks. ni-on.com Also reserve’s the rights to refuse service to customers and/or prospects who are abusive toward ni-on.com employees and consultants.
7. Bandwidth utilization will be monitored via MRTG and calculated by the following method: Monthly Avg. In + Monthly Avg. Out / 8 Bits x 60 seconds x 60 minutes x 24 hours x 30.5 days = Total Data Transfer (GB). Furthermore, the max burst rate for each port / server is 100Mbps X 4 (BG4 Routing)
8. ni-on.com may filter and block certain ports without notice at any time to protect the network from Denial of Service (DDoS), SYNC, and Ping flood attacks. Customer will need to consult with the engineering department as to which ports are available.
ni-on.com shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from the customer or ni-on.com servers. Customer also agrees to take full responsibility for all taxes and fees of any nature associated with any such products sold.
III. Material and Products
1. ni-on.com will exercise no control whatsoever over the content of the information passing through the network or on the customer’s web sites. ni-on.com makes no warranties or guarantees of any kind, whether expressed or implied for the service it is providing. ni-on.com also disclaims any warranty of merchantability or fitness for particular purpose and will not be responsible for any damages that may be suffered by the customer, including loss of data resulting from delays, non-deliveries or service interruptions or gaps by any cause or errors or omissions of the customer. ni-on.com is not responsible for any loss, erasure, or corruption of customer’s data or files whatsoever. Use of any information obtained by way of ni-on.com is at the customer’s own risk, and the company specifically denies any responsibility for the accuracy or quality of information obtained through its services. Network connectivity represents the speed of connection to our network and does not represent guarantees of available end to end bandwidth. ni-on.com expressly limits its damages to the customer for any non-accessibility time or other down time to the pro-rate monthly charge during the system unavailability. ni-on.com specifically denies any responsibilities for any damages arising from a consequence of such unavailability. In the event that this material is not “server-ready”, ni-on.com may, at its option and at any time, reject this material, including but not limited to after it has been put on our servers. ni-on.com agrees to notify customer immediately of our refusal of the material and afford customer the opportunity to amend or modify the material to satisfy the needs and/or requirements of the company. If the customer fails to modify the material, as directed by ni-on.com within a reasonable period of time, which shall be determined between the parties themselves, the Agreement shall be terminated.
IV. Warranties & Representations
Customer warrants, represents, and covenants to ni-on.com that (a) you are at least eighteen (18) years of age; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorizations necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
V. Trademarks & Copyrights
Customer warrants that it has the right to use the applicable trademarks, if any.
ni-on.com may request the right to use such trademarks in connection with our service.
Customer will review such a request promptly, and not unreasonably withhold such permission.
This Agreement may be terminated by ni-on.com, without cause, by giving the other party three (3) days notice via e-mail or fax. In such event, the company will not be required to pay to the other party an amount equal to the unused and prorated portion of service excluding any setup charges. Not withstanding the above, ni-on.com may terminate the service under this Agreement at any time, without penalty, if the customer fails to comply with the terms of this Agreement. It is the customer’s responsibility to point your domain to another service provider upon termination, cancellation or discontinuation of service.
VII. Limited Liability
1. Customer expressly agrees that use of ni-on.com Servers is at customer’s sole risk. Neither the company, its employees, agents, resellers, third party information providers, merchants licensers or the like, warrant that ni-on.com service will not be interrupted or be error free; nor do they make any warranty as to the results that might be obtained from the use of the Server service or as to the accuracy, or reliability of any information service or merchandise contained in or provided through our network, unless otherwise expressly stated in this Agreement. Customer also acknowledge and accept that any damages will be limited to no more than 100% of the previous month’s invoice.
2. Under no circumstances, including negligence, shall ni-on.com, its officers, agents or any one else be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use our service; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to ni-on.com records, programs or services. Customer hereby acknowledges that this paragraph shall apply to all contents on all servers.
Customer agrees that it shall defend, indemnify, save and hold ni-on.com harmless from any demands, liabilities, losses, costs and claims, including reasonable attorneys fees, (“Liabilities”) asserted against the company, its agents, its customers, servants officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless ni-on.com against Liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed in connection with our servers; (ii) any material supplied by the customer infringing or allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective product which customer sold on ni-on.com Servers.
IX. 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. ni-on.com and Customer agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.
The parties shall try to resolve all disputes that might arise out of this agreement in a spirit of cooperation without formal procedures. 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 10 shall be subject to arbitration upon written demand of either party. Arbitration shall take place in Erie County, New York. The arbitration will 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 pay. 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 will 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 a dissenting opinion. Regarding each issue submitted to arbitration, the decision will 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.
Should any legal action permissible under this agreement be taken to enforce the conditions and terms of this agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable legal fees and expenses incurred at the trial and appellate levels.
Customer acknowledges that by reason of their relationship, both customer and ni-on.com may have access to certain products, information and materials relating to the other party’s business, which may include business plans, customers, software technology, and marketing plans that are confidential and of substantial value to either party, respectively, and which value would be impaired if such information were disclosed to third parties. Consequently, both ni-on.com and customer agree that it will not use in any way for its own account or for the account of any third party, nor disclose to any third party, any such information revealed to it by either party, as the case may be.
Customer and ni-on.com further agree that it will take every appropriate precaution to protect the confidentiality of such information. In the event of termination of this agreement, there shall be no use or disclosure by either party of any such confidential information in its possession, and all confidential documents shall be returned to the rightful owner, or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, either party shall be entitled to injunctive relief, which relief will not be contested by the customer or ni-on.com.
Except with respect to service of process as set forth in paragraph, all notices may be sent by e-mail, fax, or express mail to the e-mail address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.