By and between Eoncity
All customers ("Client") being hosted and/or receiving services by Eoncity
In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement.
A: means proposals for offering various services to be provided by Eoncity, as listed online at: http://www.Eoncity.net
B: "Client" means an end user who is utilizing services provided by Eoncity.
A: All prices for hosting Plans and all other services provided by Eoncity to Client are US dollars.
B: Client shall be responsible for paying all taxes of any nature which become due with regard to the Eoncity services, except for taxes on Eoncity's income, irrespective of which party may be responsible for reporting or collecting such taxes.
- Order acceptance, Payment
A: All orders are subject to acceptance by Eoncity. An order will be deemed accepted by Eoncity when written confirmation of the orders is sent to customer. Eoncity may refuse to accept any order, or delay acceptance pending fulfillment of conditions Eoncity may choose to impose. Such refusal or such conditions may not be unreasonable, however, and Eoncity agrees to provide Client with reasonable notice via Email or fax of any intent to delay or decline the acceptance of any order.
B: Payment and Terms: Payment shall be made in US dollars to Eoncity into the account designed by Eoncity, or as may otherwise be agreed in writing by the parties. Payments are due upon account activation and future renewal. Should payment in full of any invoice not be received by Eoncity within ten (10) days from the sent date on invoices sent to client, Eoncity may impose a dept service charge amounting to five percent (5%) of the overdue balance for each month, or fraction thereof, the overdue amount remains unpaid, from the original invoice date. In the event that any amount remains unpaid thirty (30) days after presentation of invoice, Eoncity may discontinue, withhold, or suspend services to clients and/or its customer(s) to whom such unpaid amounts relate. Failure to pay will result in termination of services and confiscation of all related content on our servers, distribution and reproduction rights, and domain name properties. Confiscated material and domain names may be immediately sold to seek reimbursement for unpaid services.
- PARTIAL PAYMENT OPTIONS
With preapproval from Eoncity, in some circumstances the client may be allowed to make extended payments toward invoices, but a payment schedule must be arranged with Eoncity before the first payment is due. Parts of invoices cannot be selectively paid without preapproval. Any disputed charge or inaccurate charge must be brought to Eoncity's attention in writing before the invoice is due. If a corrected invoice is approved, a new invoice will be given so an entire invoice is always being paid. Any unapproved partial payment is considered an incomplete payment and a violation of the services agreement. Services will then be discontinued and materials will be withheld and late fees will be applied.
- OVERPAYMENTS AND CREDIT
Any overpayments or unused portions of services paid for by the client will be prorated and returned to the client in the form of credit toward any other services Eoncity offers. No cash or check refunds are provided. All requests for service credits must provided in writing. All service credits are subject to early cancelation fees if applicable, and all service credits expire in 60 days from the time they are issued.
- DUTIES OF Eoncity:
Eoncity will acquire, on request, an Internet Domain Name (only from the US InterNIC) on behalf of the customer. In such case the customer hereby must waive in writing prior to acquisition of said domain name, any and all claims which it may have against Eoncity for any loss, damage, claim or expense arising out of, or in relation to, the registration of such Domain Name in any on-line or off-line network directories, membership lists or registration lists, or the release of the Domain Name from such directories or lists following the termination of services by Eoncity for any reason. Any cost of Eoncity in obtaining or maintaining a domain name for customer or its customers shall be immediately reimbursed to Eoncity upon invoice from Eoncity to customer.
- Rules And Regulations
Eoncity may impose reasonable rules and regulations regarding the use of its services from time to time.
- LIMITATION OF Eoncity's OBLIGATIONS AND LIABILITY
A: Eoncity will utilize its best efforts to maintain acceptable performance of services contracted for services, but Eoncity makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. Eoncity cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via the Internet. Eoncity will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or sorted on its system. Eoncity shall not be liable to customer or any of its customers for any claims or damages which may be suffered by customer or its customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access the Internet, or inability to transmit or receive information, caused by ,or resulting from, delays, nondeliveries, or service interruptions whether or not caused by the fault or negligence of Eoncity.
B: Eoncity may discontinue servicing any plan, or may require fulfillment of conditions Eoncity may choose to impose as a perquisite for continuing to service any plan. Unsolicited e-mail using Eoncity or unsolicited e-mail to advertise web pages hosted at Eoncity (even if messages are sent via other e-mail providers)are unacceptable. Advertising, Marketing, or selling software products for the purpose of spamming (even if not engaged in spamming yourself) are reasons for discontinuation service. Such discontinuation or requirement may not be unreasonable, however, and Eoncity agrees to provide customer with reasonable notice via email or fax of any such intent to discontinue or impose conditions.
C: Service provided by Eoncity to a customer shall be deemed accepted for all purposes thirty days from activation or renewal for such services, if no written claim or objection regarding such services has been received by Eoncity within the (30)day period. No claim related to such accepted services shall be raised.
D: Eoncity's liability to customer, and any end user of any plan or other Eoncity services is limited to the amount paid to and received by Eoncity for services not accepted. In no event shall Eoncity be liable to customer, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if Eoncity has been advised of the possibility of such damage.
E: Client will take all necessary measures to preclude Eoncity from being made a party to any lawsuit or claim regarding Eoncity services provided to any customer or end user. Client hereby agrees to indemnify and hold harmless Eoncity from any and all claims of whatever nature brought by any of Client's customers against Eoncity.
F: Clients assume all legal responsibility for material created for them by Eoncity or any Eoncity employee or contractor and for understanding and making sure such material complies with all regulations and security issues that may apply.
- PROPERTY RIGHTS
Eoncity owns all right, title and interest in Eoncity's trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of plans and 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 Eoncity's trade names of service marks. The use by customer of the other property rights mentioned here is authorized only for the purpose of marketing and selling Plans in the territory.
Client acknowledges that by reason of its relationship with Eoncity hereunder, it may have access to certain information and materials to Eoncity's business, plans, customers, software technology, and marketing strategies that is confidential and of substantial value to Eoncity, which value would be impaired if such information were disclosed to third parties. Client agrees that it will not use in any way for its own account nor for the account of any third party, nor disclose to any third party, any such information revealed to it by Eoncity. Client further agrees that it will take every reasonable precaution to protect the confidentiality of such information. In the event of termination of this agreement there shall be no use or disclosure by the customer of any such confidential information in its possession, and all confidential materials shall be returned to Eoncity 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, Eoncity shall be entitled to injunctive relief, which relief shall not be contested by customer.
- RELATIONSHIP OF THE PARTIES
The relationship between Eoncity and customer is that of vendor and vendee. They shall not be construed as being joint ventures, franchiser/franchisee, or employer/employee. This agreement is a commercial agreement between businesses, not a consumer agreement. Client has no authority, apparent or otherwise, to contract for or on behalf of Eoncity, or in any way legally bind Eoncity in any fashion, nor shall Client be authorized to make any representations about Eoncity or its services other than to set forth Eoncity's responsibilities as outlined in this agreement.
The parties shall attempt to resolve all disputes arising out of this agreement in a spirit of cooperation without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices) shall be subject to 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 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 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. Judgement 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.
Client's rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of Eoncity which consent shall not be unreasonably refused.
- PARTIAL INVALIDTY
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. Eoncity and customer agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provisions.
- APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement is to be governed by and constructed under the laws of the State of Colorado and the United States Of America.
All notices may be sent by e-mail, fax, or express mail to the email address, fax number, or address most recently provided and will be effective upon transmission shall be retained.
- ERRORS AND OMMISSIONS
Eoncity will always attempt to get written or verbal preapproval on all material to be published in advertising for the client, but on occasion may make minor decisions on the client’s behalf that Eoncity sees is in the best interest of the client. These situations will only involve material that can be edited online after it has been published. But the client will not hold Eoncity at fault for decisions made on the client’s behalf if the decision was made with a sincere attempt to create the best advertising value for the client. It is the client’s responsibility to proof all material and confirm the accuracy of all published information. The client will not hold Eoncity liable for any errors or omissions in regards to any material published on behalf of the client.
- ENTIRE AGREEMENT; MODIFICATIONS
This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. Eoncity may make changes to this agreement at anytime and it is the client's obligation to be aware of this agreement when that agree to any services provided by Eoncity. Utilization of Eoncity services by customer and/or its Clients constitute acceptance by customer of current edition of this agreement.