|
|
 |
| Revision: 11.13.03 |
 |
|
THIS ONLINE HOSTING AGREEMENT (the "Agreement")
governs your purchase and use of all website hosting services,
including the shared server hosting services, virtual private
server hosting services, dedicated windows hosting services,
dedicated Linux hosting services, term hosting services and
any add-on services (collectively, the "Services"),
as described in this Electronic Order Form and ordering process,
as accepted by 2Advanced Studios LLC through its subsidiary
2advanced.net ("2ANet"). 2ANet will indicate its acceptance
by sending an electronic confirmation of your order via e-mail.
You must register and accept the terms of this Agreement in
order to use the Services. BY CLICKING ON THE "I
ACCEPT" BUTTON BELOW, AND/OR REGISTERING FOR AND
USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS
AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS
AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.
2ANet may modify any of the terms and conditions contained in
this Agreement and any policy or guideline incorporated by reference,
at any time in its sole discretion and may also determine whether
and when the modifications apply to existing or future clients.
Any modifications are effective upon posting of the revisions
on the 2ANet Web site located at http://www.2advanced.net/
(the "Site"). 2ANet will post a notice
of modifications to this Agreement on the Site for 30 days.
2ANet may post modifications to referenced policies and guidelines
without notice to you. Your continued use of the Services following
2ANet's posting of any modifications constitutes your acceptance
of the modifications. IF YOU DO NOT AGREE TO THIS AGREEMENT'S
TERMS DO NOT CLICK THE "I ACCEPT"
BUTTON. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION,
DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY 2ANET
OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED
IN SECTION 1.2 BELOW. WE MAY ALSO PERIODICALLY POST CHANGES
TO OUR POLICY AND ENSURE YOUR CONTINUED AGREEMENT BY AGAIN ASKING
YOU TO CLICK ON THE “I ACCEPT”
BUTTON WHEN NOTICE OF A CHANGE TO THE TERMS IS POSTED. |
|
| 1. |
Term and
Payment for Services. |
|
| |
| 1.1. |
Term.
This Agreement will be for an "Initial Term"
of either: (a)
thirty (30) days if you register for monthly services
payments, (b)
as otherwise chosen by you in the Electronic Order Form,
located on the Site, at the time you register for the
Services, or (c)
as otherwise chosen by you on the Order Form and Term
Services, executed in writing or by facsimile, at the
time you register for the Services directly with 2ANet
or a 2ANet representative. 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 2ANet with notice
of termination either: (a)
at least seven (7) days before the end of the Initial
Term or the Renewal Term , whichever is then applicable,
if you registered for and are receiving Services on a
monthly basis, or (b)
at least thirty (30) days before the end of the Initial
Term or Renewal Term, whichever is then applicable, if
you registered for and are receiving Services or have
pre-paid for Services on either a quarterly, semi-annually,
annually or greater basis. |
|
| 1.2. |
| Termination
Policy. |
|
| 1.2.1. |
Voluntary Termination
By You. If you terminate the Services
before the end of the Initial Term or the Renewal
Term, whichever is then applicable: (a)
2ANet will not refund to you for any fees paid in
advance of termination, and (b)
you will be required to pay the remainder of all
charges remaining in the term, unless otherwise
expressly provided in this Agreement. You must submit
your termination request for the Services in accordance
with the following manners: (a)
You may send your notice of termination in writing
by regular mail to 2Advanced.net, 65 Enterprise,
Aliso Viejo, CA 92656, Attention: Hosting Account
Cancellations, or (b)
Fax your written notice of termination to 2Advanced.net
at 949-330-7701, Attention: Hosting Account Cancellations.
All account cancellations MUST BE received on company
letterhead, accompanied by a photocopy of the signatory’s
Drivers License or Passport and be signed by an
officer, managing partner or owner of the company
in order to be deemed valid. For assurance of delivery,
2Advanced recommends sending requests for cancellation
via certified mail. Due to the secure nature of
our Services, cancellations by phone, e-mail, or
without adequate demonstration of right to cancel
will be deemed invalid. |
|
| 1.2.2. |
Voluntary Termination
By 2ANet. 2ANet may terminate this
Agreement at any time and for any reason by providing
to you thirty (30) days prior written notice of
termination. If 2ANet terminates this Agreement,
2ANet will refund to you the pro-rata portion of
pre-paid fees attributable to Services not yet rendered
one day following the date of termination, unless
otherwise expressly provided in this Agreement. |
|
| 1.2.3. |
Termination For
Violation or Breach. 2ANet may immediately
and without prior notice terminate this Agreement
upon a violation by you of 2ANet’s Acceptable
Use and Service Policy or upon a violation by
you of 2ANet’s Abuse Policy;
and 2ANet may terminate this Agreement immediately
if, after fifteen (15) days prior notice to you,
you have failed to correct any breach of this Agreement. |
|
| 1.2.4. |
Procedures Upon
Termination. Upon any termination
in accordance with Section 1.2.1 or 1.2.2, 2ANet
shall permit you forty-eight (48) hours to download
or otherwise copy any of your information and data
residing on 2ANet’s facilities prior to removing
such information and data from 2ANet’s facilities.
Upon termination by 2ANet under Section 1.2.3, 2ANet
may immediately remove all of your data and information
from 2ANet’s facilities and you shall have
no right to copy or download such data or information,
and, in such event, all such information and data,
including all copyrighted or copyrightable material
therein, shall then become the property of 2ANet.
In cases where your account has been cancelled,
and you are requesting reactivation, 2ANet, at it’s
option, may reactivate the same account, only if
the account had been cancelled less than sixty (60)
days prior. After sixty (60) days, you will be required
to set up a new account. |
|
|
| 1.3. |
Liability and Obligations
on Termination. If the Agreement expires
or is terminated for any reason, 2ANet is not liable to
you because of the expiration or termination for compensation,
reimbursement or damages on account of the loss of prospective
profits, anticipated sales, goodwill or on account of
expenditures, investments, leases or commitments in connection
with your business, or for any other reason whatsoever
flowing from the termination or expiration. If you terminate
this Agreement, 2ANet will not relieve you of any obligations
to pay fees and costs accrued before the termination date
or any other amounts you owe to 2ANet under this Agreement.
In cases where we have provided equipment to you, you
must, at your own expense, return all 2ANet equipment
within ten (10) days of the date of notification of termination.
Otherwise you will be financially responsible for the
cost of new replacement equipment. 2ANet shall invoice
you for such equipment, and payment will be due within
thirty (30) days of invoice date. |
|
| 1.4. |
Charges.
You will pay all charges for your use of the Services
at the then current 2ANet prices, which will be exclusive
of any applicable taxes. Such fees and charges shall include,
without limitation, the fees for connectivity, design
services, and charges by any and all third parties whose
materials are included as part of the Services. 2ANet
reserves the right to change the amount of, or basis for
determining, any fees or charges and institute new fees
and charges upon prior notice to you. You are responsible
for paying all federal, state, and local sales, use, value
added, excise, duty and any other taxes assessed with
respect to the Services, other than taxes based on 2ANet's
net income. |
|
| 1.5. |
Payment.
You will pay all charges for Services in advance according
to the then current price for the Services, or any fixed
price as agreed to in the applicable Electronic Order
Form or Term Hosting Service Agreement. When registering
for Services electronically, you must choose to pay for
the Services by credit card. Your election to pay by credit
card hereby duly authorizes 2ANet to charge your credit
or debit card to pay for any charges that may apply to
your account. 2ANet may elect, at its option, accumulate
any supplemental charges, as described in the Electronic
Order Form, that you incur in your use of the Services
("Supplemental Charges") until
the charges exceed $20 and then charge your card. You
must notify 2ANet of any changes to your credit card account
(including, applicable account number changes or cancellation
or expiration of the account), your billing address, or
any information that may prohibit 2ANet from charging
your account.
If you prefer to be invoiced for Services or pay by
company check, 2ANet will send an invoice to you for
the Services for the period for which you have registered
for the Services. 2ANet may also require an agreement
to be completed, signed and returned to 2ANet. 2ANet
may also send periodic invoices to you for any applicable
Supplemental Charges associated with your use of the
Services. You will pay to 2ANet the amount indicated
in each invoice by the due date reflected on the invoice.
Each Service shall be billed with an initial invoice
for the first and second month of service including
any applicable installation charges. Payment on the
initial invoice is due within ten (10) days from the
invoice date. After the initial invoice, all services
shall be billed thirty (30) days in advance and are
due within thirty (30) days from invoice date. If you
fail to pay any fees and taxes within thirty (30) days
from the applicable due date for credit card or invoice
payments, 2ANet will assess late charges equal to the
lesser of 1.5% per month or the maximum allowable under
applicable law.
Your failure to fully pay any fees and taxes within
ten (10) days after the applicable due date is a material
breach of this Agreement, justifying 2ANet in suspending
its performance and terminating this Agreement. If 2ANet
terminates for your material breach, you must still
pay past due fees plus interest. You are responsible
for any costs 2ANet incurs in enforcing collection,
including reasonable attorneys' fees, court costs and
collection agency fees. If you reinstate Services, you
must pay any fees associated with reinstating Services.
|
|
| 1.6. |
30-Day Money Back Guarantee.
During the Initial Term, if you are not fully satisfied
with the Services (not applicable to Term Hosting), you
may elect to terminate this Agreement at any time during
the first thirty (30) days from your initial order date
and receive a full refund of all payments you made to
2ANet for the Services, except for set-up fees and domain
registration fees, which are non-refundable. To receive
your refund, you must terminate this Agreement in the
manner described in Section 1.2.1 and immediately cease
using the Services, and 2ANet must receive your termination
notice within the 30-day period. In addition to the requirements
specified in Section 1.2.1 for cancellation, your notice
must further describe why you are not satisfied with the
Services. Add-on Backup Services, Firewall Services, Load
Balancing Services, and Term Hosting Services are not
covered under the provisions of this Section 1.6, and
are not subject to a 30-Day Money Back Guarantee. |
|
|
| 2. |
Use of
Services. |
|
| |
| 2.1. |
Applicable Policies
and Guidelines. From time to time
2ANet may impose reasonable rules and regulations regarding
the use of the 2ANet Services. Such rules, covenants and
restrictions are called acceptable use and service policies
and are posted on the Site at http://www.2advanced.net/company/acceptableuse.php
and abuse polices posted on the Site at http://www.2advanced.net/company/abuse.php.
All such acceptable use and service policies and abuse
policies are incorporated by reference into this Agreement
as if fully set forth herein. The 2ANet Acceptable Use
and Service Policy (the "AUP") governs the general
policies and procedures for use of the Services. The 2ANet
Abuse Policy governs how 2ANet responds to specific instances
of abuse and defines such instances of abuse. 2ANet's
Privacy Policy governs how 2ANet collects, stores, processes
and uses information associated with your use of the Services.
The Privacy Policy is posted on the Site at http://www.2advanced.net/company/privacy.php
and may be updated from time-to-time. YOU SHOULD CAREFULLY
READ THE AUP AND ABUSE POLICY. BY USING THE SERVICES,
YOU AGREE TO BE BOUND BY THE TERMS OF THE AUP AND ABUSE
POLICY AND ANY MODIFICATIONS TO THE TERMS. 2ANET MAY TERMINATE
YOUR ACCOUNT FOR ANY VIOLATION OF THE AUP, THE ABUSE POLICY
OR THIS AGREEMENT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 1.2.3 HEREIN. |
|
| 2.2. |
Material and Product
Requirements. You must ensure that all
material and data placed on 2ANet's equipment is in a
condition that is "server-ready," which is in
a form requiring no additional manipulation by 2ANet.
2ANet will make no effort to validate any of this information
for content, correctness or usability. If your material
is not "server-ready", 2ANet may reject this
material. 2ANet will notify you of its refusal of the
material and afford you the opportunity to modify the
material to satisfy 2ANet's requirements. Use of the Services
requires a certain level of knowledge in the use of Internet
languages, protocols and software. This level of knowledge
varies depending on the anticipated use and desired content
of your Web site. You must have the necessary knowledge
to create and maintain a Web site.
2Advanced Studios, LLC also provides website design
and development services via the Internet and other
platforms through 2Advanced Studios' Internet website
(http://www.2advanced.com/).
Clients interested in utilizing these custom services
should contact 2Advanced Studios directly at that website.
|
|
| 2.3. |
Bandwidth, Storage,
and E-Mail Usage. For Services, you will
not exceed the bandwidth, data storage, database and E-mail
usage limits specified on the Electronic Order Form at
the time you registered for the Services. If you use any
bandwidth, database or data storage space in excess of
the agreed upon number of megabytes per month or if you
exceed E-Mail storage and attachment size limitations,
2ANet may, at its sole discretion, assess you with additional
charges, suspend the Service, or terminate this Agreement.
If 2ANet elects to take any corrective action, 2ANet will
not refund any unused pre-paid fees. Your use of your
account and access to it is your responsibility. You are
responsible for any unauthorized access to your account
resulting in bandwidth, storage and/or E-mail usage exceeding
the limits in the Order Form and resultant charges. |
|
| 2.4. |
Domain Names.
As part of the Services, you will provide 2ANet with a
registered domain name or names, or 2ANet will register
domain name(s) you select if the domain name is available
for registration and does not violate any contracted registrar’s
policies, or any law or regulation. You will promptly
pay 2ANet for any fees associated with Domain Name registration
as specified on the Order Form(s). Your request for and/or
acceptance of a domain name obtained by 2ANet shall in
all cases constitute your waiver of any and all claims
which you may have, or which may later arise, against
2ANet or its third party providers, for any and all damages,
losses, claims or expenses arising our or related to the
acquisition, registration and/or use of the domain name.
Any cost incurred by 2ANet to obtain and/or maintain the
domain name on your behalf shall be charged to you. Request
for and acceptance of a domain name requires 2ANet to
supply the domain name to a contracted registrar, which
in turns supplies the domain name to third parties.
If any dispute or cause of action arises out of or
is related to your domain name used in connection with
the Services, then upon your request, 2ANet will attempt
to register with a contracted registrar an alternative
domain name you chose. Upon registering your domain
name, you are bound by the terms of contract registrar’s
then current domain name policy and the policies of
the national DNS registration authorities. 2ANet will
not refund any fees you paid with respect to the registration
of a domain name you are unable to use.
In the event that you elect to have 2ANet act as your
managing agent for DNS, you agree to designate our administrator’s
as the Technical Contact on the Domain Registration
Record for the duration of time that 2ANet is responsible
for ongoing DNS management. If you elect to perform
DNS management through another responsible party or
on your own, you are not required to specify 2ANet as
the Technical Contact on the Domain Registration Record.
2ANet’s DNS Registration Information is
currently as follows:
 |
|
 |
|
| 2advanced.net
Record Handle: |
|
SOZNTXMQQO
|
| 2advanced.net
DNS E-Mail: |
|
dnsadmin@2advanced.net |
|
|
ns1.2advanced.net |
| Primary
Nameserver IP Address: |
|
216.174.103.31 |
|
|
ns2.2advanced.net |
| Secondary
Nameserver IP Address: |
|
216.174.103.32 |
|
|
|
 |
|
 |
|
|
| 2.5. |
Security. Unless
otherwise specified, you are solely responsible for any
security breaches affecting servers or accounts under
your control. If your server or website is responsible
for or involved in an attack on or unauthorized access
into another server or system, 2ANet will shut it down
immediately. You will incur any charges resulting from
the cost to correct security breaches affecting 2ANet
or any of its other clients. |
|
| 2.6. |
Commercial Advertisements
via E-Mail. You will not use 2ANet Services,
your account or server to send or facilitate in any way
the transmission of unsolicited commercial email. 2ANet
will enforce substantial penalties, including charging
you for related network costs and terminating your account,
for any violations of this Section 2.6. |
|
|
| 3. |
Intellectual
Property Rights. |
|
| |
| 3.1. |
2ANet License Grant
to You. During the term of this Agreement,
2ANet grants to you a non-exclusive, personal, non-transferable
license to access and use the Services solely on and as
part of 2ANet’s World Wide Web site and servers.
2ANet may modify the Services at any time for any reason
and may provide modified versions of the Services to you. |
|
| 3.2. |
Your License Grant to
2ANet. You grant to 2ANet a non-exclusive,
worldwide, and royalty-free license for the Initial Term
and the Renewal Term, if applicable, to edit, modify,
adapt, translate, exhibit, publish, transmit, participate
in the transfer of, reproduce, create derivative works
from, distribute, perform, display, and otherwise use
your content as necessary for the purposes of rendering
and operating the Services to you under this Agreement.
You expressly: (a)
grant to 2ANet a license to cache materials distributed
or made available for distribution via the Services, including
content supplied by third parties, and (b)
agree that this caching is not an infringement of any
of your intellectual property rights or any third party's
intellectual property rights. |
|
| 3.3. |
Your Warranties and
Representations to 2ANet. You warrant,
represent, and covenant to 2ANet that: (a)
you are at least 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 authorization(s)
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 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. |
|
| 3.4. |
2ANet Materials and
Intellectual Property. All materials,
including any computer software (in object code and source
code form), data or information that 2ANet or its suppliers
or agents develop or provide under this Agreement, and
any know-how, methodologies, equipment, or processes 2ANet
uses to provide the Services to you, including all copyrights,
trademarks, patents, trade secrets, and any other proprietary
rights inherent therein and appurtenant thereto will remain
2ANet's or its suppliers' sole and exclusive property.
You further agree not to translate, decompile, reverse
engineer, disassemble, modify, reproduce, rent, lease,
lend, sublicense, distribute, remarket or otherwise dispose
of any portion of the 2ANet Services. You hereby acknowledge
that, if 2ANet at any time or from time to time performs
any customizations or modifications to the Services, all
rights and interests to such customizations or modifications
shall be the sole property of 2ANet. 2ANet will also maintain
and control ownership of all Internet protocol ("IP")
numbers and addresses that 2ANet may assign to you. 2ANet
may, in its sole discretion, change or remove any and
all IP numbers and addresses. |
|
|
| 4. |
Enforcement. |
|
| |
| 4.1. |
Investigation of Violations.
2ANet may investigate any reported violation of this Agreement,
or its policies or any complaints and take any action
that it deems appropriate and reasonable under the circumstance
to protect its systems, facilities, clients or third parties.
2ANet will not access or review the contents of any e-mail
or similar stored electronic communications except as
required or permitted by applicable law or legal process. |
|
| 4.2. |
Actions.
2ANet may restrict or remove from its servers any content
that violates this Agreement or related policies or guidelines,
or is otherwise objectionable or potentially infringing
on any third party's rights or that potentially violates
any laws. If 2ANet becomes aware that you have possibly
violated this Agreement, any related policies or guidelines,
third party rights or laws, 2ANet may immediately take
corrective action, including: (a)
issuing warnings, (b)
suspending or terminating the Service, (c)
restricting or prohibiting any and all uses of content
hosted on 2ANet's systems, and (d)
disabling or removing any hypertext links to third-party
Web sites, any of your content distributed or made available
for distribution via the Services, or other content not
supplied by 2ANet that, in 2ANet's sole discretion, may
violate or infringe any law or third-party rights or that
otherwise exposes or potentially exposes 2ANet to civil
or criminal liability or public ridicule. It is 2ANet's
policy to terminate repeat infringers. These rights of
action, however, do not obligate 2ANet to monitor or exert
editorial control over the information made available
for distribution via the Services. If 2ANet takes corrective
action because of a possible violation, 2ANet will not
refund to you any fees you paid in advance of the corrective
action. |
|
| 4.3. |
Disclosure Rights.
To comply with applicable laws and lawful governmental
requests, to protect 2ANet's systems and clients, or to
ensure the integrity and operation of 2ANet's business
and systems, 2ANet may access and disclose any information
it considers necessary or appropriate, including, user
profile information (i.e., name, e-mail address, etc.),
IP addresses and traffic information, usage history, and
content residing on 2ANet's servers and systems. 2ANet
may report any activity that it suspects violates any
law or regulation to appropriate law enforcement officials,
regulators, or other appropriate third parties. To the
extent any inconsistency exists between any terms of 2ANet's
Privacy Policy and 2ANet's right to disclose under this
section, 2ANet's right to disclose under this section
will control. |
|
|
| 5. |
Disclaimed
Warranties. 2ANet exercises no control over,
and accepts no responsibility for, the content of the information
passing through 2ANet's host computers, network switches, network
hubs and points of presence, or the Internet. ALL SERVICES PERFORMED
UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT
WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE
BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT
AS EXPRESSLY PROVIDED IN THIS AGREEMENT, 2ANET DOES NOT MAKE
AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS
OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES,
INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE
OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. |
|
| 6. |
Limitation
and Exclusion of Liability. |
|
| |
| 6.1. |
Limitations.
IN NO EVENT WILL 2ANET OR ITS SUPPLIERS HAVE ANY LIABILITY
FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION
OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION
VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR
DEVICES. NEITHER 2ANET NOR ITS SUPPLIERS WILL HAVE LIABILITY
WITH RESPECT TO 2ANET'S OBLIGATIONS UNDER THIS AGREEMENT,
OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL,
OR PUNITIVE DAMAGES EVEN IF 2ANET HAS BEEN ADVISED OF
THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF 2ANET
AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE
OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO
2ANET UNDER THIS AGREEMENT DURING THE 3 MONTHS IMMEDIATELY
PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION
APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING
BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT
LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES
FOR THE SERVICES SET BY 2ANET UNDER THIS AGREEMENT HAVE
BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION
OF RISK. ACCORDINGLY, YOU RELEASE 2ANET AND ITS SUPPLIERS
FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS
IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1.
Except for certain products and services specifically
identified as being offered by 2ANet, 2ANet does not
control any materials, information, products, or services
on the Internet. The Internet contains unedited materials,
some of which are sexually explicit or may be offensive
to you. 2ANet has no control over and accepts no responsibility
for such materials. You assume full responsibility and
risk for use of the services and the Internet and are
solely responsible for evaluating the accuracy, completeness,
and usefulness of all services, products, and other
information, and the quality and merchantability of
all merchandise provided through the service or the
Internet.
|
|
| 6.2. |
Interruption of Service
or Loss of Data. While 2ANet makes reasonable
efforts to maintain the 2ANet service, many factors are
not within 2ANet’s control. Therefore, 2ANet does
not warrant, and is not responsible for (even if caused
by the negligence of 2ANet) any loss of data, delays,
non-delivery or mis-delivery of information, lack of access,
slows response time, or service interruptions or errors.
Loss, delay or non-delivery of data can be due to but
not limited to 2ANet’s own negligence, viruses or
other third parties. Your data is defined as any data
held by 2ANet and includes account information, web hosting
data, email and domain name services. This disclaimer
and waiver shall apply equally to any and all third party
providers. 2ANet provides no warranty to client regarding
the accuracy of usage statistics, which 2ANet may provide
in its discretion. Further, no advice or information given
by a 2ANet representative shall create a warranty or serve
as an amendment to this agreement. |
|
| 6.3. |
Service Level Agreement.
2ANet, as a practice, strives to provide you with the
greatest possible uptime and performance for the Services.
Due to the nature of the Internet and networking technology
and equipment, it is not always possible for 2ANet to
guarantee the availability of your website or servers.
In an effort to ensure, however, that you receive the
value and promises that you have paid for, 2ANet has created
a service level agreement for all classes of service (Shared,
Virtual Private and Dedicated Hosting) which you hereby
agree to incorporate as if fully set forth herein. The
2advanced.net may be updated from time-to-time, is incorporated
by reference to this Agreement and can be viewed at: http://2anet.2advanced.com/company/sla.php.
YOU SHOULD CAREFULLY READ THE SERVICE LEVEL AGREEMENT.
BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS
OF THE SERVICE LEVEL AGREEMENT. |
|
|
| 7. |
Indemnification.
You release and hold harmless, and agree to indemnify, 2ANet
and its affiliates, parent and suppliers (and their respective
employees, directors and representatives) against any and all
claims, demands, actions, proceedings, suits, liabilities, damages,
settlements, judgments, penalties, fines, costs or expenses
(including, reasonable attorneys' fees and other litigation
expenses) incurred by 2ANet or its suppliers, arising out of
or relating to: (a)
your or your agent’s or customer’s violation or
breach of any term, condition, representation or warranty of
this Agreement, or any applicable policy or guideline; (b)
your improper act or omission or illegal use of the Services;
or (c) your
violation, alleged violation, or misappropriation of any intellectual
property right (including trademark, copyright, patent, trade
secrets) or non-proprietary right of a third party (including
defamation, libel, violation of privacy or publicity). |
|
| 8. |
Miscellaneous
Provisions. |
|
| |
| 8.1. |
Entire Agreement.
This Agreement, in conjunction with all policies and guidelines
incorporated by reference, constitutes the entire agreement
between you and 2Net with respect to the subject matter
of the Agreement, it supersedes any proposal or prior
agreement, oral or written, and any other communication
relating to the subject matter of the Agreement, and there
are no representations, understandings or agreements that
are not fully expressed in this Agreement and the related
policies and guidelines. |
|
| 8.2. |
No Fiduciary Relationship;
No Third-Party Beneficiaries. 2ANet is
not the agent, fiduciary, trustee or other representative
of you. Except for the rights of 2ANet's suppliers under
sections 2.4, 6 and 7, nothing expressed or mentioned
in or implied from this Agreement is intended or will
be construed to give to any person (other than the parties
to this Agreement) any legal or equitable right, remedy
or claim under or in respect to this Agreement. This Agreement
and all of its representations, warranties, covenants,
conditions and provisions are intended to be and are for
the sole and exclusive benefit of the parties to this
Agreement. |
|
| 8.3. |
Amendments.
Except as expressly provided in this Agreement, no amendment,
change, waiver, or discharge of this Agreement is valid
unless in writing and signed by the parties. |
|
| 8.4. |
Choice of Law and Forum,
Litigation Costs. THIS AGREEMENT IS GOVERNED
BY THE LAWS OF THE UNITED STATES AND THE STATE OF CALIFORNIA,
WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY
ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE
FEDERAL OR STATE COURTS LOCATED IN ORANGE COUNTY, CALIFORNIA,
AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF THESE
COURTS. In the event any litigation or other proceeding
is brought by either party in connection with this Agreement,
the prevailing party in such litigation or other proceeding
shall be entitled to recover from the other party all
costs, attorneys' fees and other expenses incurred by
such prevailing party in such litigation. |
|
| 8.5. |
Compliance with Laws.
You will comply with all applicable laws and regulations
and will indemnify and save 2ANet harmless from your failure
to so comply. 2ANet will not have to perform any obligations
set forth in this Agreement if the performance would violate
any present or future law, regulation or policy of any
applicable government. |
|
| 8.6. |
Non-Assignment and Subcontracting.
You may not assign this Agreement or any right or obligation
under this Agreement, by operation of law or otherwise,
without 2ANet's prior written consent, and any attempted
assignment or delegation without consent will be void.
2ANet may assign its rights and obligations under this
Agreement, and may utilize affiliates and agents in performing
its duties and exercising its rights, without your consent.
This Agreement is binding on, inure to the benefit of,
and be enforceable against the parties and their respective
successors and assigns. 2ANet may subcontract any work,
obligations or other performance required of 2ANet under
this Agreement without your consent. |
|
| 8.7. |
No Waiver.
2ANet's failure to enforce the strict performance of any
provision of this Agreement does not constitute a waiver
of 2ANet's right to subsequently enforce the provision
or any other provisions of this Agreement. |
|
| 8.8. |
Severability.
If any term or provision of this Agreement is deemed invalid,
void or unenforceable either in its entirety or in a particular
application, the remainder of this Agreement, if applicable,
will remain in full force and effect and, if the subject
term or provision is deemed to be invalid, void or unenforceable
only with respect to a particular application, the term
or provision will remain in full force and effect with
respect to all other applications. |
|
| 8.9. |
Headings.
The section headings used in this Agreement are for reference
and convenience only and will not enter into the interpretation
of the Agreement. |
|
| 8.10. |
Assignment.
This Agreement shall be binding to both parties and their
respective successors and assigns. 2ANet reserves the
right to assign any rights or obligations under this Agreement
without any prior written notice to you. You shall not
transfer or assign any rights or obligations under this
Agreement without the prior written consent of 2ANet,
which consent shall not be unreasonably withheld. |
|
| 8.11. |
Survival.
All provisions of this Agreement relating to your warranties,
intellectual property rights, limitation and exclusion
of liability, confidentiality, your indemnification obligations
and payment obligations and the miscellaneous provisions
will survive the termination or expiration of the Agreement. |
|
| 8.12. |
Copyright.
You acknowledge the validity and 2Advanced Studios, LLC’s
exclusive ownership of all right, title, and interest
in and to all 2Advanced Studios, 2advanced.com and 2advanced.net
logos and link logo marks (the "Marks") and,
during or after the term of this Agreement, will not contest,
or help others to contest, the ownership or the validity
of any registrations or rights of 2Advanced Studios, 2advanced.com
and 2advanced.net now owned or obtained relating to the
Marks. You will not use any names, marks, terms, graphics,
or other materials on its Web page or Site that are likely
to cause confusion with or dilute the distinctiveness
of the Marks or to damage the reputation or commercial
image of 2Advanced Studios, 2Advanced.com and 2Advanced.net
or any of their products, without the express written
permission of 2Advanced Studios, LLC. |
|
| 8.13. |
Confidentiality.
You acknowledge that by reason of your relationship with
2ANet, you may have access to certain information and
materials relating to 2ANet’s business, clients,
methodology, software technology and marketing which 2ANet
treats as confidential (collectively “Confidential
Information”). You shall: (a)
hold in confidence, and not disclose or reveal to any
person or entity, any Confidential Information without
the clear and express prior written consent of a duly
authorized representative of 2ANet; and (b)
not use or disclose any of the Confidential Information
for any purpose at any time, other than for the limited
purpose of performance under this Agreement. These obligations
shall continue indefinitely for so long as the Confidential
Information is a trade secret under applicable law and
shall continue for two (2) years following termination
of this Agreement with respect to Confidential Information,
which does not rise to the level of a trade secret. |
|
| 8.14. |
Export Control.
You agree not to export or re-export any portion of the
2ANet Service outside of the United States. You further
agree to comply with all United States and other applicable
laws, rules and regulations relating to the export, re-export
or transshipment of the 2ANet Services. |
|
| 8.15. |
Force Majeure.
Either party shall be excused from any delay or failure
in performance hereunder caused by reason of any occurrence
or contingency beyond its reasonable control, including
but not limited to, acts of God, earthquake, labor disputes
and strikes, riots, terrorist acts, war, and governmental
requirements. The obligations and rights of the party
so excused shall be extended on a day-to-day basis for
the period of time equal to that of the underlying cause
of the delay. |
|
| 8.16. |
California Consumer
Protection. Under California Civil Code
Section 1789.3, California subscribers are entitled to
the following specific consumer rights information: the
complaint Assistance Unit of the Division of Consumer
Services of the Department of Consumer Affairs may be
contacted in writing at 1020 N. Street, #501, Sacramento,
CA 95814 or by telephone at 1-916-445-1254. |
|
| 8.17. |
California Privacy Protection.
Pursuant to California Civil Code 1798.82, effective July
1, 2003, anyone hosting web sites, or storing user information
for their web site is required to disclose any breach
of the security of the system following discovery or notification
of the breach in the security to any resident of California
whose unencrypted personal information was, or is reasonably
believed to have been, acquired by an unauthorized person.
You agree to cooperate with 2ANet in making the disclosure
to users of your site that may have been affected in the
most expedient time possible and without unreasonable
delay, consistent with the legitimate needs of law enforcement,
or any measures necessary to determine the scope of the
breach and restore the reasonable integrity of the data
system. You agree to notify the owner or licensee of the
information of any breach of the security of the data
stored for your web site immediately following discovery,
if the personal information was, or is reasonably believed
to have been, acquired by an unauthorized person. The
notification required by this section may be delayed if
a law enforcement agency determines that the notification
will impede a criminal investigation. The notification
required by this section shall be made after the law enforcement
agency determines that it will not compromise the investigation. |
|
| 8.18. |
Dispute Resolution.
The parties shall first attempt in good faith to resolve
any dispute through open negotiation. Any dispute which
remains unresolved for thirty (30) days shall be settled
by binding arbitration in Orange County, California, in
accordance with the then current rules of the American
Arbitration Association, before one (1) independent and
impartial arbitrator, mutually designated by both parties
and selected by the American Arbitration Association if
the parties cannot agree on an arbitrator. The prevailing
party shall be entitled to recover reasonable attorney
fees and costs. |
|
|
|
