This WEB HOSTING SERVICES AGREEMENT ("Agreement") is made this day between MUNTADANET, Inc. ("MUNTADANET") and CUSTOMER. Use of the services provided hereunder constitutes acceptance of these terms and conditions of use and is a binding agreement between CUSTOMER and MUNTADANET.
WHEREAS, MUNTADANET provides services through itself, its subsidiaries and affiliates, and third party suppliers; AND
WHEREAS, CUSTOMER desires to purchase web hosting Internet services as set forth herein;
Now therefore it is agreed as follows:
- SERVICES - During the term of this Agreement, MUNTADANET shall provide CUSTOMER with web hosting services and CUSTOMER shall pay for said services as invoiced, regardless of actual usage by CUSTOMER.
- TERM - The term of this Agreement shall begin as of the date CUSTOMER first uses web hosting services and shall terminate at any time upon notice by either party for any reason, with or without cause. MUNTADANET may immediately terminate this Agreement, or in its sole discretion give notice to terminate and/or suspend services hereunder at any time upon: (a) any failure of CUSTOMER to pay any amounts as provided in this Agreement on time, (b) any breach by CUSTOMER of any provision of this Agreement or any law, rule, or regulation governing the services provided hereunder, (c) any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of trustee or receiver or similar event with respect to CUSTOMER; or (d) any governmental prohibition or required alteration of the services to be provided hereunder. Any termination shall not relieve CUSTOMER of its obligation to pay any charges incurred hereunder prior to such termination. Upon termination, MUNTADANET may terminate communication access to CUSTOMER's web site(s), databases or home page, if any, and remove such access and related links without penalty. Any failure of MUNTADANET to enforce its rights under this Agreement will not act as a waiver of any future rights.
- PAYMENTS - During the term in which CUSTOMER is using web hosting services provided pursuant to this Agreement, CUSTOMER shall pay all amounts due without deduction or offset. MUNTADANET reserves the right to change pricing at any time with thirty (30) days notice to CUSTOMER. MUNTADANET reserves the right to terminate service immediately for nonpayment. Deactivated accounts due to delinquency are subject to a $30 delinquency fee.
- CUSTOMER EQUIPMENT - No failure of CUSTOMER to maintain any equipment that the services provided hereunder depend upon (regardless of who CUSTOMER has contracted with to provide said equipment) shall relieve CUSTOMER from paying all amounts due until this Agreement is terminated. Notwithstanding any other requirement of this Section, any responsibility for loss of or damage to any equipment shall lie solely with CUSTOMER. MUNTADANET shall have the sole and exclusive right to select its own equipment, software and communications carriers to provide the services.
- LIMITATION OF LIABILITY - CUSTOMER AGREES THAT MUNTADANET PROVIDES ITS SERVICES "AS IS" AND "AS AVAILABLE" AND MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, FOR ITS SERVICES UNLESS SPECIFICALLY SET FORTH HEREIN. MUNTADANET SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF TITLE OR NONINFRINGEMENT. NO ADVICE OR INFORMATION GIVEN BY MUNTADANET 'S EMPLOYEES, AGENTS OR CONTRACTORS SHALL CREATE A WARRANTY. CUSTOMER AGREES THAT MUNTADANET WILL UNDER NO CIRCUMSTANCE BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTION, USE OF SOFTWARE, SYSTEM CORRUPTION, ACTION OR INACTION, PERFORMANCE, VIRUSES, NONPERFORMANCE, TERMINATION, OR CUSTOMER'S NEGLIGENCE, MISCONDUCT, ERRORS OR OMISSIONS, FOR LOSS OF PROFIT OR REVENUE, OR FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR SIMILAR OR ADDITIONAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF: BUSINESS PROFITS OR INFORMATION, BUSINESS INTERRUPTION, ELECTRONICALLY TRANSMITTED DATA, DOCUMENTS AND FUNDS, OR USE IN CONJUNCTION WITH HIGH RISK ACTIVITIES, AND THE LIKE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES PROVIDED HEREUNDER, OR OUT OF CUSTOMER OR CUSTOMER'S USERS' RELIANCE ON OR USE OF INFORMATION, SERVICES OR PRODUCTS PROVIDED ON OR THROUGH THE USE OF THE SERVICES, OR THAT RESULT FROM INTERRUPTIONS, OMISSIONS, MISTAKES, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, EVEN IF MUNTADANET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY OF MUNTADANET SHALL BE LIMITED IN ALL EVENTS TO THE AMOUNTS RECEIVED BY MUNTADANET FROM CUSTOMER WITH RESPECT TO THE SPECIFIC SERVICES UPON WHICH THE CLAIM OF LIABILITY IS MADE, AND CUSTOMER AGREES THAT ITS SOLE REMEDY IN EVENT OF ANY BREACH BY MUNTADANET OF THIS AGREEMENT SHALL BE A REFUND OF SUCH AMOUNTS PAID TO MUNTADANET , HOWEVER, CUSTOMER AGREES THAT IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF MUNTADANET UNDER THIS AGREEMENT EXCEED THIRTY (30) DAYS' CREDIT FOR THE AMOUNT PAID BY CUSTOMER TO MUNTADANET WITH RESPECT TO THE THIRTY (30) DAYS OF SERVICE IMMEDIATELY PRECEDING THE DATE OF THE DEFAULT, ACT OR OMISSION BY MUNTADANET.
- While MUNTADANET shall make every reasonable effort to protect and backup data for CUSTOMER on a regular basis, MUNTADANET is not responsible for CUSTOMER's files residing on MUNTADANET. CUSTOMER is solely responsible for independent backup of data stored on MUNTADANETs server and network. If CUSTOMER requests that MUNTADANET restore any files/data for any reason other than an error on the part of the provider, client will be charged a $25 restore fee. MUNTADANET makes no guarantee that the files/data in question will be available or in the state desired by client. Regardless of the result of a data restore request, the $25 restore fee still applies.
- ASSIGNMENT - CUSTOMER may not assign this Agreement. CUSTOMER expressly understands and agrees that some services provided under this Agreement may be provisioned through an affiliated company, and/or a separate third party supplier, therefore MUNTADANET may freely assign its obligations or rights under this Agreement at any time.
- SOFTWARE AND LICENSES - No licenses or property interests, including, but not limited to, intellectual property interests, express or implied, are granted by MUNTADANET pursuant to this Agreement. CUSTOMER is aware that it may be required to execute separate software agreements with MUNTADANET or third parties for the provision of certain services requested hereunder. MUNTADANET is not responsible for the installation, maintenance, compatibility or performance of any software used in conjunction with MUNTADANET services, whether or not provided by MUNTADANET hereunder and CUSTOMER shall indemnify, defend and hold MUNTADANET harmless for any infringement claims arising out of CUSTOMER's use of such software with the services. If such use by CUSTOMER of the software impairs the services provided hereunder, CUSTOMER remains liable for payment, and if such software is likely to cause hazard or service obstruction, CUSTOMER shall eliminate such likelihood, if possible, at MUNTADANET's request. MUNTADANET may from time to time make software and/or documentation available to CUSTOMER in connection with a service. In such event, MUNTADANET grants to CUSTOMER, subject to the terms of this Agreement and any agreement with the software provider, a nonassignable and nonexclusive license to use the software and documentation (whether in written or electronic form), together with all updates, enhancements, modifications, and fixes thereto, which are made available to CUSTOMER by MUNTADANET for use with the service (collectively, the "Software"). CUSTOMER agrees (1) to use the Software solely in connection with its use of the services provided hereunder and only in accordance with any documentation, user guides or instructions (written or electronic) that may be provided to CUSTOMER; (2) not to copy the Software or decompile, reverse compile, reverse engineer, reverse assemble or otherwise derive source code equivalent for the Software; (3) to use the Software only on personal computer(s) for which CUSTOMER controls access to the Software; (4) not to download any of the Software unless expressly instructed or authorized by by MUNTADANET; (5) not to permit any third parties to access the Software or services; (6) that MUNTADANET or its suppliers and licensors retain ownership of all aspects of the Software and the services and any MUNTADANET or third party trademarks, service marks, trade names, or logos incorporated therein; and (7) that CUSTOMER will comply with any additional terms and conditions applicable to the Software sublicensed to CUSTOMER under this Agreement following notice of such terms and conditions. This license shall continue in effect until this Agreement is terminated. CUSTOMER agrees that MUNTADANET shall have no liability for any Software, whether or not provided under this Agreement, and CUSTOMER expressly agrees to pursue the Software manufacturer for any claims or loss and to indemnify, defend and hold MUNTADANET harmless from any loss MUNTADANET sustains through the failure of CUSTOMER to comply with this Section. No software or other materials provided pursuant to this Agreement may be downloaded or exported into, or to a national or resident of, Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods, or to anyone on the U. S. Treasury Department's list of Specially Designated Nationals or the U. S. Commerce Department's Table of Deny Orders. CUSTOMER shall be solely responsible for compliance with any applicable United States and foreign governmental regulations relating to the exportation and/or importation of data.
- GOVERNING LAW/VENUE - (a) This Agreement shall in all respects be construed in accordance with and governed by the laws of the State of Washington, without regard to the principles of conflicts of law thereof, as if all duties, rights and obligations hereunder were performed entirely within that State. (b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of any Washington state court or federal court sitting in the State of Washington, and any appellate court thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each party irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such Washington state or, to the extent permitted by law, in such federal court. Each party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. (c) Each party hereto irrevocably and unconditionally waives, to the fullest extent any of them may legally and effectively do so, any objection that any of them may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any Washington state or federal court. Each party hereby irrevocably waives to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. (d) CUSTOMER agrees to pay all collections costs and the prevailing party in any legal proceeding shall be entitled to recover reasonable attorneys' fees and other costs incurred in such proceeding, in addition to any other relief to which such party may be entitled.
- CREDIT VERIFICATION - MUNTADANET or its agents may conduct a credit verification of CUSTOMER. If MUNTADANET is unable to obtain the necessary information through standard channels, MUNTADANET or its agents may request information, and/or a financial statement and/or a service deposit and/or a letter of credit from CUSTOMER prior to continuing service. CUSTOMER must provide, in a timely manner as requested by MUNTADANET, acceptable credit information to MUNTADANET or its agents or the aforementioned security may be required as determined by MUNTADANET.
- BILLING - CUSTOMER agrees to pay all amounts in advance as invoiced. CUSTOMER agrees to be responsible for any required taxes, fees and governmental charges, which will be passed through by MUNTADANET. MUNTADANET's standard billing process may be modified from time to time on MUNTADANET's website at the address specified in Section 13. MUNTADANET's billing cycle for access services begins on the first of each month and ends on the last day of the month. Billing statements are sent at the beginning of the month and must be paid within 10 days. Payment is considered past due if not received by the 10th of the month. Any amount under this Agreement not paid within fifteen (10) calendar days from the first day of the month is subject to a $20 service charge. In addition, MUNTADANET may terminate service to CUSTOMER without notice. Payments received after the last day of the month may appear on the following statement. Billing statements will be sent to CUSTOMER via email from billing@muntada.com or sales@muntada.com. Billing statements are typically sent by the fifth calendar day of the month for customers that are paying via check or money order. CUSTOMER may request that billing statements be sent via US mail by emailing MUNTADANET at billing@muntada.com. Billing statements are sent to CUSTOMER via email unless CUSTOMER requests otherwise. Notwithstanding the foregoing, MUNTADANET reserves the right to require that all statements be distributed by email upon notice to CUSTOMER. CUSTOMERs paying via credit card/debit card will be billed automatically and will see a charge appear on their card statement.
- FORCE MAJEURE - Notwithstanding any other provision of this Agreement, no default, delay or failure to perform on the part of either party, except for CUSTOMER's failure to pay any monies when due, shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to events beyond a party's reasonable control including, without limitation, strikes, lockouts, work stoppages, or other labor disputes or shortages, riots, civil disturbances, war, acts of the public enemy, terrorism, espionage, nuclear disaster, acts of God, severe weather, earthquakes, floods, actions or inactions of governmental authorities or suppliers, epidemics, embargoes, failure of underlying suppliers to provide required services, Internet traffic congestion, outages, cut or downed lines, system overloads, or default of a common carrier, provided, that the party failing to perform takes commercially reasonable efforts to complete performance as soon as practicable. In the event of interruption of MUNTADANET services because of a force majeure event, MUNTADANET's sole obligation shall be to use commercially reasonable efforts to restore services as soon as practicable. CUSTOMER agrees that services provided by MUNTADANET and its suppliers are not fault-tolerant and are not designed, manufactured or intended for use or resale in hazardous environments requiring fail-safe controls, such as in the operation of nuclear facilities, aircraft navigation or aircraft communication systems, air traffic control, life support, or weapons systems ("High Risk Activities"). CUSTOMER represents and warrants that it will not use, or allow the use of services provided by or through MUNTADANET for such High Risk Activities.
- ACCEPTABLE USE POLICY
- CUSTOMER warrants that it shall not use any services provided by MUNTADANET in violation of any law or regulation, including, but not limited to, rights of privacy or publicity, prohibitions of libel or slander, and violations of defamation, infringement, misappropriation, intellectual property rights laws, invasion of privacy, unfair competition, anti-discrimination, consumer protection, credit, false advertising, obscenity, pornography, indecency or tax laws, or the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act. CUSTOMER shall not use MUNTADANET services to conduct any business or activity or solicit the performance of any activity that is prohibited by law. CUSTOMER understands that any criminal use or threatened criminal use of MUNTADANET services by CUSTOMER may be referred to an appropriate governmental agency and may result in termination to protect other Internet users. Some materials may be offensive to some customers. CUSTOMER expressly agrees that any use of CUSTOMER's account by an individual younger than eighteen (18) years shall be the sole responsibility of CUSTOMER. CUSTOMER agrees that MUNTADANET does not operate or control the Internet, and therefore CUSTOMER is using the Internet at its own risk. CUSTOMER agrees that it may not transmit any message under a false name or by means of any other person's email address. CUSTOMER, if an individual, shall not permit any other person to access the services provided hereunder for any purpose. However, if CUSTOMER is a merchant, an Internet Service MUNTADANET, or any business providing access to end-users, CUSTOMER shall be responsible for any end-users who use the services to any extent, and shall be required to immediately terminate service to any end-user who violates any provision of this Acceptable Use Policy and/or any provision of any online or written agreement between MUNTADANET and CUSTOMER. It is CUSTOMER's sole responsibility to inform its end-users of their obligations in using MUNTADANET services. MUNTADANET may terminate services to CUSTOMER if CUSTOMER fails to terminate service with its end-user(s) who have violated this Acceptable Use Policy and/or any provision of any online or written agreement between MUNTADANET and CUSTOMER, after notification by MUNTADANET.
- CUSTOMER shall not use any MUNTADANET service to obtain passwords of CUSTOMERs of MUNTADANET or its affiliates or of any other system. CUSTOMER shall not use any MUNTADANET service to make unauthorized attempts to access systems, accounts and networks of others, or to alter, destroy, delete, or modify another's data without authorization. CUSTOMER shall not use MUNTADANET services to violate copyright or other intellectual property rights of any author or publisher. CUSTOMER shall not upload or download software in violation of software license agreements. CUSTOMER shall not release or perpetuate the existence of any virus, worm, Trojan horse, chain mail, or related contaminating or destructive device in any form. CUSTOMER shall respect the conventions of the newsgroups, news services, lists and networks to which CUSTOMER is posting or participating. CUSTOMER shall not spam. Spamming is defined herein as any instance where a customer or other user of customer's account sends one or more postings, messages, emails, or any other digital or electronic communication to one or more unsolicited recipients. CUSTOMER agrees that spamming causes MUNTADANET and the recipient to incur unintended extra costs for storage space and may violate various laws. CUSTOMER shall not install IRC or IRC bots, Adult or obscene Materials or links to them, Chat room scripts, content that may be considered prejudicial or abrasive to an individual's Race, Creed or Color, promote alochol or tobacco, conduct business of any illegal nature.
- MUNTADANET reserves the right to monitor CUSTOMER actions when necessary to help CUSTOMER or to protect itself or other users or systems. Any use of MUNTADANET services that disturbs the normal use of the system by MUNTADANET or by other customers or consumes excessive amounts of memory for long periods of time may result in termination of services to CUSTOMER in the sole discretion of MUNTADANET without notice to CUSTOMER and without penalty to MUNTADANET. CUSTOMER expressly agrees to be responsible for any loss MUNTADANET sustains through CUSTOMER's breach of this Acceptable Use Policy. MUNTADANET and CUSTOMER agree that the terms and conditions in this Acceptable Use Policy are reasonable and necessary for MUNTADANET to be able to provide services hereunder and to protect the proper, efficient functioning of the Internet.
- ADDITIONAL TERMS - CUSTOMER agrees to abide by any additional or modified terms and conditions of use posted on the MUNTADANET Data Services World Wide Web site ("MUNTADANET web site" or "MUNTADANET's web site"), currently located at www.muntada.com, as updated from time to time. CUSTOMER agrees that MUNTADANET is not responsible for any links or any information provided through links to or from any CUSTOMER or MUNTADANET web site, and CUSTOMER understands and agrees that MUNTADANET has no obligation to review any such content.
