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Order, Acceptance, and Service
The Order submitted by customer creates a legally binding
contract between Customer and Omnetix Corp. when Omnetix
Corp.
provides the services requested in the Order. Such contract
consists of the Order, the applicable service description,
these Terms of Service, and the Acceptable Use Policy. Omnetix
Corp. reserves the right to refuse any order at its discretion
for any reason or no reason. All orders for hosting services
for web sites, content, software, and any digitally transmittable
material that is deemed of an adult nature will be refused
service.
Fee, Taxes, and Payments
Omnetix Corp. will provide, and Customer will purchase and
pay for, the service
fees specified in the Order and the applicable Service Description
(the “Service Fees”). The Service Fees do not
include any applicable sales, use, revenue, excise or other
taxes imposed by any taxing authority with respect to the
Services or any software provided hereunder (excluding
any
tax on Omnetix Corp. net income). All such taxes will be
added to Omentix Corp. invoices for the Service Fees as
separate
charges to be paid by Customer. All fees are fully earned
when due and non-refundable when paid. Unless otherwise
specified,
invoices for the Service Fees and related charges shall be
due and payable on the birthday of Customer's Order and
incrementally thereafter for subscription term. All services
provided by Omnetix Corp. are prorated every 30 days
unless otherwise agreed by Omnetix Corp. and Customer
to any previously existing contract that takes precedence
over this policy. If any invoice is not paid within 5 days
after the date of the invoice, Company may charge Customer
a late fee of $15 for such invoice; in addition any amounts
payable to Omnetix Corp. not paid when due will bear interest
at the rate of one and one half percent (1.5%) per month
or
the maximum rate permitted by applicable law, whichever is
less. If Omnetix Corp. collects any payment due at law
or
through an attorney at law or under advice there from or
through a collection agency, or if Omnetix Corp. prevails
in any action
to which the Customer and Omnetix Corp. are parties, Customer
will pay all costs of collection, arbitration and litigation,
including, without limitation, all court costs and Omnetix
Corp. reasonable attorneys’ fees. If any check is
returned for insufficient funds Omnetix Corp. may impose
a processing
charge of $25. Omnetix Corp. may increase the Service Fees
(i) in the manner permitted in the Service Description
and
(ii) at any time by providing fourteen (14) days prior written
notice thereof to Customer. Omnetix Corp. at its discretion
at any time may suspend or cancel service to Customer without
notice because of non-payment by Customer for services
rendered
by Omnetix Corp.
Terms and Termination
Hosting Services Services will commence on
the date on which Omnetix Corp. provides the Services requested
in the Order (the “Effective Date” or "Birthday
Date" ) and continue until terminated in accordance
with this Agreement. Omnetix Corp may terminate service
to customer for any reason or no reason with 15 days notice
to customer. Customer may terminate subscription to service
at any time, however customer's account is bound to the
current subscription term and under no circumstances will
customer be refunded for early termination due to the nature
of this business. No refund is available for customer's
terminating their account for any reason or no reason.
Either party may terminate this Agreement immediately upon
the occurrence of any one or more of the following events:
(i) the other party fails to pay when due any amounts required
to be paid under this Agreement; (ii) the other party breaches
any material term or provision of this Agreement (other than
a breach described in subsection above), and if capable
of cure, such breach remains uncured 30 days after the non-breaching
party gives written notice thereof to the breaching party;
or (iii) the other party becomes insolvent, makes an assignment
for the benefit of its creditors, institutes or becomes subject
to any proceeding under any bankruptcy or similar laws for
the relief of debtors, or seeks the appointment of, or becomes
subject to the appoint of, any trustee or receiver for all
or any portion of such party’s assets.
Omnetix Corp. may terminate this Agreement (i) if the Services
are prohibited by applicable law, or become impractical or
unfeasible for any technical, legal or regulatory reason,
by giving Customer as much prior notice as reasonably practicable
or (ii) immediately by giving written notice to Customer,
if Omnetix Corp. determines in good faith that Customer’s
use of the Customer Web site or the Customer Content violates
the Acceptable Use Policy.
Upon termination of this Agreement for any cause or reason
whatsoever, neither party shall have any further rights or
obligations under this Agreement, except as expressly set
forth herein. Parties shall each remain liable to the other
for any indebtedness or other liability theretofore arising
under this Agreement even if agreement is terminated. Termination
of this Agreement and retention of pre-paid fees and charges
shall be in addition to, and not be in lieu of, any other
legal or equitable rights or remedies to which Omnetix Corp.
may be entitled.
Availability
Omnetix Corp. may be temporarily unavailable from time to
time for maintenance, repair, or for other reasons beyond
or within the control of Omnetix Corp.. Omnetix Corp. shall
not be liable, and no credit or damages shall be due to You
for any interruptions, delays, or errors in service, irrespective
of the cause of the same. You acknowledge that Omnetix Corp.
is not responsible for, and cannot control, the state of connectivity
of any internet node(s) other than its own. Omnetix Corp.
expressly disclaims any and all warranties, including, without
limitation, all warranties of merchantability and fitness
for a particular use or purpose, in connection with Omnetix
Corp.. No warranty or promise is made with regard to connection
speeds, and You hereby acknowledge the same. You and any user
of Omnetix Corp. expressly waives any and all damages, whether
direct, indirect, incidental or consequential, including damages
for lost profits, related the use or misuse of Omnetix Corp.
or any software provided to You by Omnetix Corp.. Use of Omnetix
Corp. for any prohibited purpose shall give Omnetix Corp.
the immediate right, without notice, to terminate Your ability
to access Omnetix Corp. services.
Customer's Representations and Warranties
Customer hereby represents and warrants to Omnetix Corp.,
and agrees that during the Term Customer will ensure that:
(a) Customer is the owner or valid licensee of the Customer
Content and each element thereof, and Customer has secured
all necessary licenses, consents, permissions, waivers and
releases for the use of the Customer Content and each element
thereof, including without limitation, all trademarks, logos,
names and likenesses contained therein, without any obligation
by Omnetix Corp. to pay any fees, residuals, guild payments
or other compensation of any kind to any Person; (b) Customer’s
use, publication and display of the Customer Content will
not infringe any copyright, patent, trademark, trade secret
or other proprietary or intellectual property right of any
Person, or constitute a defamation, invasion of privacy or
violation of any right of publicity or any other right of
any Person, including, without limitation, any contractual,
statutory or common law right or any “moral right”
or similar right however denominated; (c) Customer will comply
with all applicable laws, rules and regulations regarding
the Customer Content and the Customer Web site and will use
the Customer Web site only for lawful purposes; (d) Customer
has used its best efforts to ensure that the Customer Content
is and will at all times remain free of all computer viruses,
worms, trojan horses and other malicious code; and (e) Customer
will use the Services only for business purposes and not
for
any family, household or personal use, unless otherwise specifically
implied by the type of service.
License to Omnetix Corp.
Customer hereby grants to Omnetix Corp. a non-exclusive,
royalty-free, worldwide right and license during the Term
to do the following to the extent necessary in the performance
of Services under the Order: (a) digitize, convert, install,
upload, select, order, arrange, compile, combine, synchronize,
use, reproduce, store, process, retrieve, transmit, distribute,
publish, publicly display, publicly perform and hyperlink
the Customer Content; and (b) make archival or back-up copies
of the Customer Content and the Customer Web site. Except
for the rights expressly granted above, Omnetix Corp. is not
acquiring any right, title or interest in or to the Customer
Content, all of which shall remain solely with Customer.
Acceptable Use Policy
Customer will abide by, and utilize the Services and the
Customer Web site only in accordance with the Acceptable Use
Policy (the “Acceptable Use Policy”) that Omnetix
Corp. posts on its Web site, as such Acceptable Use Policy
may be changed by Omnetix Corp. from time to time without
notice. The Acceptable Use Policy is hereby incorporated herein
and made a part hereof by this reference. Customer shall impose
the Acceptable Use Policy on its customers and End Users to
the extent necessary to ensure their compliance. Customer
shall familiarize itself with the Acceptable Use Policy and
periodically access Omnetix Corp. Web site to determine if
Omnetix Corp. has made any changes thereto.
Customer's Responsibilities
Customer is solely responsible for the quality, performance
and all other aspects of the Customer Content and the goods
or services provided through the Customer Web site.
Customer will cooperate fully with Omnetix Corp. in connection
with Omnetix Corp. performance of the Services. Customer must
provide any equipment or software that may be necessary for
Customer to use the Services. Delays in Customer’s performance
of its obligations under this Agreement will extend the time
for Omnetix Corp. performance of its obligations that depend
on Customer’s performance on a day for day basis. Customer
will notify Omnetix Corp. of any change in Customer’s
mailing address, telephone, e-mail or other contact information.
Customer assumes full responsibility for providing End Users
with any required disclosure or explanation of the various
features of the Customer Web site and any goods or services
described therein, as well as any rules, terms or conditions
of use.
Customer will provide Omnetix Corp. with a registered domain
name for the Customer Web site.
Because the Hosting Services permit Customer to electronically
transmit or upload content directly to the Customer Web site,
Customer shall be fully responsible for uploading all content
to the Customer Web site and supplementing, modifying and
updating the Customer Web site. Customer is also responsible
for ensuring that the Customer Content and all aspects of
the Customer Web site are compatible with the hardware and
software used by Omnetix Corp. to provide the Hosting Services,
as the same may be changed by Omnetix Corp. from time to time.
Specifications for the hardware and software used by Omnetix
Corp. to provide the Hosting Services will be available on
Omnetix Corp.’s Web site. Customer shall periodically
access Omnetix Corp.’s Web site to determine if Omnetix
Corp. has made any changes thereto. Omnetix Corp. shall not
be responsible for any damages to the Customer Content, the
Customer Web site or other damages or any malfunctions or
service interruptions caused by any failure of the Customer
Content or any aspect of the Customer Web site to be compatible
with the hardware and software used by Omnetix Corp. to provide
the Hosting Services.
Customer is solely responsible for making back-up copies of
the Customer Web site and Customer Content.
Company Intellectual Property
Omnetix Corp. hereby grants to Customer a non-exclusive,
non-transferable, royalty-free license, exercisable solely
during the term of this Agreement, to use applicable Omnetix
Corp. Technology solely for the purpose of accessing and using
the Services. Customer may not use Omnetix Corp. Technology
for any purpose other than accessing and using the Services.
Except for the rights expressly granted above, this Agreement
does not transfer from Omnetix Corp. to Customer any Omnetix
Corp. Technology, and all rights, titles and interests in
and to Omnetix Corp. Technology shall remain solely with Omnetix
Corp.. Customer shall not, directly or indirectly, reverse
engineer, decompile, disassemble or otherwise attempt to derive
source code or other trade secrets from any of Omnetix Corp.
Technology.
Omnetix Corp.’s trademarks, trade names, service marks,
logos, other names and marks, and related product and service
names, design marks and slogans are the sole and exclusive
property of Omnetix Corp.. Customer may not use any of the
foregoing in any advertising, publicity or in any other commercial
manner without the prior written consent of Omnetix Corp..
Omnetix Corp. shall maintain and control ownership of all
Internet protocol numbers and addresses that may be assigned
by Omnetix Corp. to Customer. Omnetix Corp. may, in its sole
discretion, change or remove any and all such Internet protocol
numbers and addresses.
Any feedback, data, answers, questions, comments, suggestions,
ideas or the like which Customer sends to Omnetix Corp. relating
to the Services will be treated as being non-confidential
and non-proprietary. Omnetix Corp. may use, disclose or publish
any ideas, concepts, know-how or techniques contained in such
information for any purpose whatsoever.
Limited Warranty
Omnetix Corp. represents and warrants to Customer that the
Services will be performed (i) in a manner consistent with
industry standards reasonably applicable to the performance
thereof; (ii) at least at the same level of service as provided
by Omnetix Corp. generally to its other customers for the
same services; and (iii) in compliance in all material respects
with the applicable Service Descriptions. Customer will be
deemed to have accepted such Services unless Customer notifies
Omnetix Corp. within 30 days after performance of any Services
of any breach of the foregoing warranties. Customer’s
sole and exclusive remedy, and Omnetix Corp.’s sole
obligation, for breach of the foregoing warranties shall be
for Omnetix Corp., at its option, to re-perform the defective
Services at no cost to Customer, or, in the event of interruptions
to the Services caused by a breach of the foregoing warranties,
issue Customer a credit in an amount equal to the current
monthly Service Fees pro rated by the number of hours in which
the Services have been interrupted. Omnetix Corp. may provision
the Services from any of its data centers and may from time
to time re-provision the Services from different data centers.
The foregoing warranties shall not apply to performance issues
or defects in the Services (i) caused by factors outside of
Omnetix Corp.’s reasonable control; (ii) that resulted
from any actions or inactions of Customer or any third parties;
or (iii) that resulted from Customer’s equipment or
any third-party equipment not within the sole control of Omnetix
Corp..
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, Omnetix Corp.
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS
OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE
PROVIDED
UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE
OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND Omnetix Corp.
HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE
FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER
HEREUNDER
IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR
WARRANTY WHATSOEVER. Omnetix Corp. DOES NOT WARRANT THAT
THE SERVICES
WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
Limitation of Liability
In no event will Omnetix Corp.’s liability in connection
with the Services, ANY SOFTWARE PROVIDED HEREUNDER or ANY
ORDER, whether caused by failure to deliver, non-performance,
defects, breach of warranty or otherwise, exceed THE aggregate
Service Fees paid to Omnetix Corp. by Customer during the
12-month period immediately preceding the event giving rise
to such liability.
Omnetix Corp. cannot guarantee continuous service, service
at any particular time, integrity of data, information or
content stored or transmitted via the Internet. Omnetix Corp.
will not be liable for any unauthorized access to, or ANY
corruption, erasure, theft, destruction, alteration or inadvertent
disclosure of, data, information or content transmitted, received
or stored on its system.
EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL be
liable in any way to THE OTHER PARTY OR ANY OTHER PERSON for
any lost profits or revenues, LOSS OF USE, LOSS OF DATA OR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES
or similar economic loss, or for any PUNITIVE, INDIRECT, SPECIAL,
INCIDENTAL, consequential OR SIMILAR damages OF ANY NATURE,
WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT
HEREUNDER, arising out of or in connection with the performance
or non-performance of ANY ORDER, OR (EXCEPT AS PROVIDED IN
SECTIONs 11 AND 12) FOR ANY CLAIM AGAINST THE OTHER PARTY
BY A THIRD PARTY, REGARDLESS OF WHETHER it HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
Indemnification of Company.
Customer shall defend, indemnify and hold harmless Omnetix
Corp., its affiliates and their respective present, former
and future officers, directors, employees and agents, and
their respective heirs, legal representatives, successors
and assigns (collectively the “Company Indemnitees”),
from and against any and all losses, damages, costs, liabilities
and expenses (including, without limitation, amounts paid
in settlement and reasonable attorneys’ fees) which
any of Omnetix Corp. Indemnitees may suffer, incur or sustain
resulting from or arising out of (i) Customer’s breach
of any representation, warranty, or covenant contained in
the Agreement, (ii) the Customer Content, the Customer Web
site or any End User’s use of the Customer Content or
the Customer Web site, (iii) violation by Customer or any
of its officers, directors, employees or agents of the Acceptable
Use Policy or any applicable law, (iv) claims or actions of
third parties alleging misappropriation of trade secrets or
infringement of patents, copyrights, trademarks or other intellectual
property rights arising from the use, display or publication
of Customer’s domain names, the Customer Web site, the
Customer Content, or the use of the Services in combination
with hardware, software or content not provided by Omnetix
Corp., (v) claims or actions by third parties relating to
or arising out of Customer’s use of the Services, and
(vi) any failure of the Customer Content or any aspect of
the Customer Web site to be compatible with the hardware or
software used by Omnetix Corp. to provide the Services, including
any damage to Omnetix Corp.’s servers or other hardware
caused thereby.
Confidentiality; Non-Solicitation
Each party will not, without the prior written consent of
the other party, use or disclose to any Person any Proprietary
Information of the other party disclosed or made available
to it, except for use of such Proprietary Information as
required
in connection with the performance of its obligations or
use of the Services hereunder. Each
party will (i) treat the Proprietary Information of the other
party as secret and confidential, (ii) limit access to the
Proprietary Information of the party to those of its employees
who require it in order to effectuate the purposes of this
Agreement, and (iii) not disclose the Proprietary Information
of the other party to any other Person without the prior
written
consent of the other party.
The following shall not be
considered Proprietary Information: (i) any information that
the receiving party can demonstrate by written documentation
was within its legitimate possession prior to the time of
disclosure by the disclosing party; (ii) any information
that
was in the public domain prior to disclosure by the disclosing
party as evidenced by documents that were published prior
to such disclosure; (iii) any information that, after disclosure
by the disclosing party, comes into the public domain through
no fault of the receiving party, (iv) any information that
is disclosed to the receiving party without restriction
by
a third party who has legitimate possession thereof and the
legal right to make such disclosure; or (v) any information
that, two years after expiration or termination of this Agreement,
does not constitute a trade secret under applicable law.
Each party acknowledges that disclosure of any aspect of the
Proprietary Information of the other party shall immediately
give rise to continuing irreparable injury to the other party
inadequately compensable in damages at law, and, without prejudice
to any other remedy available to the other party, shall entitle
the other party to injunctive or other equitable relief. Upon
expiration or termination of this Agreement for any reason,
each party shall promptly return to the other party all Proprietary
Information of the other party (including all copies thereof)
in its possession or control.
During the term of this Agreement and for two years following
expiration or termination of this Agreement, Customer will
not, directly or indirectly, solicit or recruit the services
of any employee of Omnetix Corp. performing services under this
Agreement, while such employee is employed by Omnetix Corp. and
for a period of six months after such employee has left the
employment of Omnetix Corp..
Optional Services
Customer must provide Omnetix Corp. with any information,
login identifications, passwords or other information or
access
to facilities that Omnetix Corp. may reasonably require to
provide the Optional Services Omnetix Corp. will have no
responsibility
for any delays or increased costs or expenses associated
with Customer’s failure to provide any of such information.
If Customer does not provide any such information or access
requested by Omnetix Corp. within fifteen (15) days of Omnetix
Corp.’s
request therefore, Omnetix Corp. may terminate the Order
and retain any Service Fees paid.
If Customer requested that Omnetix Corp. perform the Optional
Services by a particular deadline or that Omnetix Corp. achieve
some particular result or outcome, Omnetix Corp. will use commercially
reasonable best efforts to perform the Services by any such
deadline and achieve the result requested by Customer; provided,
however, that (i) Omnetix Corp.’s ability to perform the
Services is subject to Customer’s provision of information
and access as provided above and (ii) Omnetix Corp. has no liability
or obligation to complete the Services by any deadline or
achieve any particular outcome or result.
If Customer wishes to convey documents or files to Omnetix Corp.,
Customer should deliver to Omnetix Corp. a copy or duplicate of
such documents or files and not the original copy. Omnetix Corp.
will not return to Customer any documents or files conveyed
to Omnetix Corp..
Omnetix Corp. will have no liability or responsibility for any
damage, loss of data, loss of use or other loss occurring
in connection with Omnetix Corp.’s provision of Optional
Services requested by Customer.
Miscellaneous
Independent Contractor. Omnetix Corp. and Customer are independent
contractors and nothing contained in this Agreement places
Omnetix Corp. and Customer in the relationship of principal and
agent, master and servant, partners or joint venturers. Neither
party has, expressly or by implication, or may represent itself
as having, any authority to make contracts or enter into any
agreements in the name of the other party, or to obligate
or bind the other party in any manner whatsoever.
Governing Law; Jurisdiction. Any controversy or claim arising
out of or relating to this Agreement, the formation of this
Agreement or the breach of this Agreement, including any
claim based upon arising from an alleged tort, shall be
governed
by the substantive laws of the State of Texas, except that
all arbitration and related proceedings including without
limitation confirmation
proceedings, shall be governed by the Federal Arbitration
Act, 9 U.S.C. §§ 1, et. seq. The United Nations
Convention on Contracts for the International Sale of Goods
does not apply to this Agreement. Any suit, action or proceeding
concerning this Agreement THAT IS NOT SUBJECT TO MANDATORY
ARBITRATION PURSUANT TO SECTION BELOW must be brought
in a Texas state or federal court located in Wichita county,
Texas, and each of the parties hereby irrevocably consents
to the exclusive jurisdiction of such courts (and of the
appropriate
appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted
by
applicable law, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action
or
proceeding in any such court or that any such suit, action
or proceeding which is brought in any such court has been
brought in an inconvenient forum.
Mandatory Arbitration. Notwithstanding Section above,
each party agrees that any dispute between the parties arising
out of this Agreement or in any manner relating to the Services
must be submitted by the parties to arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association, as administered by Resolutions Resources Corp.
of Atlanta, Georgia (or such other recognized provider of
arbitration services agreed upon by both parties) before
a
single arbitrator, appointed in accordance with such rules.
Any such arbitrator must render a reasoned opinion in writing
only where the amount in dispute exceeds $100,000. Judgment
upon the award may be entered in any court having jurisdiction
thereof. Any such arbitration will be held in Atlanta, Georgia.
Any action filed by either party in any court in violation
of this Section should be dismissed pursuant to this Section.
Headings. The headings herein are for convenience only and
are not part of this Agreement.
Entire Agreement; Amendments. This Agreement, including documents
incorporated herein by reference, supersedes all prior discussions,
negotiations and agreements between the parties with respect
to the subject matter hereof, and this Agreement constitutes
the sole and entire agreement between the parties with respect
to the matters covered hereby. In case of a conflict between
this Agreement and any purchase order, service order, work
order, confirmation, correspondence or other communication
of Customer or Omnetix Corp., the terms and conditions of this
Agreement shall control. No additional terms or conditions
relating to the subject matter of this Agreement shall be
effective unless approved in writing by any authorized representative
of Customer and Omnetix Corp.. This Agreement may not be modified
or amended except by another agreement in writing executed
by the parties hereto; provided, however, that these Terms
of Service may be modified from time to time by Omnetix Corp.
in its sole discretion, which modifications will be effective
upon posting to Omnetix Corp.'s web site.
Severability. All rights and restrictions contained in this
Agreement may be exercised and shall be applicable and binding
only to the extent that they do not violate any applicable
laws and are intended to be limited to the extent necessary
so that they will not render this Agreement illegal, invalid
or unenforceable. If any provision or portion of any provision
of this Agreement shall be held to be illegal, invalid or
unenforceable by a court of competent jurisdiction, it is
the intention of the parties that the remaining provisions
or portions thereof shall constitute their agreement with
respect to the subject matter hereof, and all such remaining
provisions or portions thereof shall remain in full force
and effect.
Notices. All notices and demands required or contemplated
hereunder by one party to the other shall be in writing and
shall be deemed to have been duly made and given upon date
of delivery if delivered in person or by an overnight delivery
or postal service, upon receipt if delivered by facsimile
the receipt of which is confirmed by the recipient, or upon
the expiration of five days after the date of posting if mailed
by certified mail, postage prepaid, to the addresses or facsimile
numbers set forth below the parties’ signatures. Either
party may change its address or facsimile number for purposes
of this Agreement by notice in writing to the other party
as provided herein. Omnetix Corp. may give written notice to Customer
via e-mail to the Customer’s e-mail address as maintained
in Omnetix Corp.’s billing records.
Waiver. No failure or delay by any party hereto to exercise
any right or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right or remedy
by any party preclude any other or further exercise thereof
or the exercise of any other right or remedy. No express waiver
or assent by any party hereto to any breach of or default
in any term or condition of this Agreement shall constitute
a waiver of or an assent to any succeeding breach of or default
in the same or any other term or condition hereof.
Assignment; Successors. Customer may not assign or transfer
this Agreement, or any of its rights or obligations hereunder,
without the prior written consent of Omnetix Corp.. Any attempted
assignment in violation of the foregoing provision shall be
null and void and of no force or effect whatsoever. Omnetix Corp.
may assign its rights and obligations under this Agreement,
and may engage subcontractors or agents in performing its
duties and exercising its rights hereunder, without the consent
of Customer. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Limitation of Actions. No action, regardless of form, arising
by reason of or in connection with this Agreement may be brought
by either party more than two years after the cause of action
has arisen.
Counterparts. If this Agreement is signed manually, it may
be executed in any number of counterparts, each of which shall
be deemed an original and all of which together shall constitute
one and the same instrument. If this Agreement is signed electronically,
Omnetix Corp.’s records of such execution shall be presumed
accurate unless proven otherwise.
Force Majeure. Neither party is liable for any default or
delay in the performance of any of its obligations under this
Agreement (other than failure to make payments when due) if
such default or delay is caused, directly or indirectly, by
forces beyond such party’s reasonable control, including,
without limitation, fire, flood, acts of God, labor disputes,
accidents, acts of war or terrorism, interruptions of transportation
or communications, supply shortages or the failure of any
third party to perform any commitment relative to the production
or delivery of any equipment or material required for such
party to perform its obligations hereunder.
No Third-Party Beneficiaries. Except as otherwise expressly
provided in this Agreement, nothing in this Agreement is intended,
nor shall anything herein be construed to confer any rights,
legal or equitable, in any Person other than the parties hereto
and their respective successors and permitted assigns. Notwithstanding
the foregoing, Customer acknowledges and agrees that Microsoft,
and any supplier of third-party supplier that is identified
as a third-party beneficiary in the Service Description, is
an intended third-party beneficiary of the provisions set
forth in this Agreement as they relate specifically to its
products or services and shall have the right to enforce directly
the terms and conditions of this Agreement with respect to
its products or services against Customer as if it were a
party to this Agreement.
Government Regulations. Customer may not export, re-export,
transfer or make available, whether directly or indirectly,
any regulated item or information to anyone outside the United
States in connection with this Agreement without first complying
with all export control laws and regulations which may be
imposed by the United States government and any country or
organization of nations within whose jurisdiction Customer
operates or does business.
Marketing. Customer agrees that during the term of this Agreement
Omnetix Corp. may publicly refer to Customer, orally and in writing,
as a customer of Omnetix Corp.. Any other public reference to
Customer by Omnetix Corp. requires the written consent of Customer.
Definitions
For purposes of this Agreement, the following terms have
the meanings specified below:“Agreement” means
each contract created between Omnetix Corp. and Customer for
the provision of Services consisting of an Order, the applicable
Service Description and these Terms of Service.
“Customer Content” means all data, graphics, text,
names, marks, logos, hypertext links to other Web sites and
other information incorporated in, transmitted through or
published or displayed on the Customer Web site.
“Customer Web site” means Customer’s site
on the World Wide Web portion of the Internet that Omnetix
Corp. hosts under this Agreement.
“End User” means any Person who accesses or uses
the Customer Web site via the Internet.
“Company Technology” means Omnetix Corp.’s
proprietary technology, including, without limitation, Omnetix
Corp. services, software tools, hardware designs, algorithms,
software (in source code and object code forms), user interface
designs, architecture, class libraries, objects and documentation
(both printed and electronic), network designs, know-how,
trade secrets and any related intellectual property rights
throughout the world (whether owned by Omnetix Corp. or licensed
to Omnetix Corp. from a third party), and also including any
derivatives, improvements, enhancements, updates, modifications
or extensions of Omnetix Corp. Technology conceived, reduced
to practice or developed during the term of this Agreement
by either party.
“Person” means any individual, partnership, joint
venture, corporation, limited liability company, trust, unincorporated
association or organization, or government or any agency or
political subdivision thereof.
“Proprietary Information” means all technical,
business and other information of a party (i) that is not
generally known to the public, (ii) that derives value, economic
or otherwise, from not being generally known to the public
or to other Persons who can obtain value from its disclosure
or use, and (iii) which information is subject to efforts
that are reasonable under the circumstances to maintain the
secrecy thereof.
“Order” means the Order submitted by the Customer
to Omnetix Corp. for Services, whether such Order is submitted
online through Omnetix Corp.’s Web site or on a written
Order form.
“Terms of Service” means these Terms of Service,
as the same may be modified, altered or amended from time
to time by Omnetix Corp..
“Service” means either Hosting Service or Optional
Service. “Hosting Service” means the Service
provided by Omnetix Corp. in response to an Order whereby
Omnetix Corp.
provides the Customer with specified connectivity, storage
space and bandwidth for the hosting of a Customer Web site
as more particularly described in the applicable Service
Description.
“Optional Service” means any additional Service
(other than Hosting Service) Omnetix Corp. may provide in
response to an Order, as more particularly described in the
applicable Service Description.
“Service Description” means the applicable documents
made available by Omnetix Corp. to Customer to describe the
applicable Services at the time the Order is accepted by Omnetix
Corp..
“Term” means the duration of any Agreement between
Omnetix Corp. and Customer. With respect to Hosting Services,
the “Initial Term” is the initial term specified
in the Order and the Term continues beyond the Initial Term
for any renewal period as specified in Section 3. . With respect
to Optional Services, the “Term” begins when Omnetix
Corp. accepts the Order and ends on the first to occur of
(i) Omnetix Corp.’s completion of performance, or (ii)
the earlier termination of the Order in any manner permitted
by these Terms of Service.
"Order Birth date" means the first day in which
service for Order is provided by Omnetix Corp.
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Terms of Service