By and between Opus Interactive the Shared Hosting provider and the Shared Hosting customer, who will be referred to in this document as “Customer”. The parties agree to the following, which shall apply during the term of this Agreement:
A. “Plans” means proposals for offering various services to be provided by Opus Interactive, as listed online at: http://www.opusinteractive.com/website_hosting.html
B. “Customer” means an end user who is utilizing Shared Hosting services provided by Opus Interactive.
All prices for Plans provided by Opus Interactive to Customer are US dollars. Customer shall pay Opus Interactive for its services in US dollars.
3. ORDER ACCEPTANCE, PAYMENT
A. All orders are subject to acceptance by Opus Interactive. An order will be deemed accepted by Opus Interactive when written (e-mail) confirmation of the order is sent to Customer. Opus Interactive may refuse to accept or delay acceptance of any order for any reason.
B. Payment and Terms: Payment shall be made in US dollars to Opus Interactive. Payments are due upon account activation and future renewal. If due to bank charges, transfer fees, or the like, Opus Interactive should receive less than its invoice amount, Opus Interactive will re-invoice Customer for the shortfall. Should payment in full of any invoice (aside from such shortfalls) not be received by Opus Interactive within thirty (30) days after activation or renewal, Opus Interactive may discontinue, withhold, or suspend services to Customer.
C. All plans are automatically renewed at the beginning of each new billing cycle (statement date). Cancellations must be submitted via the form located here prior to a renewal date to cancel any future charges. Any cancellation request received after the renewal date has past will be at the discretion of Opus Interactive to reimburse a partial refund. Cancellation fees, late fees, reseller and yearly discounts will be applied/removed before determining refund amounts. A copy of the email requesting cancellation may be required in order to determine the official cancellation date and will be reflected accordingly.
4. DUTIES OF OPUS INTERACTIVE
Opus Interactive may acquire an Internet Domain Name (from any valid Domain Registration Company) on behalf of the Customer, as specified. Any costs of Opus Interactive in obtaining or maintaining a domain name for Customer shall be immediately reimbursed to Opus Interactive upon invoice from Opus Interactive to Customer. Opus Interactive does not warranty that it’s registration services are successful, whether a domain is actually acquired or reserved on behalf of Customer. Under no circumstances will Opus Interactive be held liable for losses or damages suffered by Customer resulting from delays in the registration process or failure to acquire such said intellectual property.
5. LIMITATION OF OPUS INTERACTIVE’S OBLIGATIONS AND LIABILITY
A. Opus Interactive will utilize its best efforts to maintain acceptable performance of services contracted for, but Opus Interactive makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. Opus Interactive cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. Opus Interactive will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system. Opus Interactive shall not be liable to Customer for any claims or damages which may be suffered by Customer, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-deliveries, or service interruptions whether or not caused by the fault or negligence of Opus Interactive.
B. Opus Interactive may discontinue servicing any Plan, or may require fulfillment of conditions Opus Interactive may choose to impose as a prerequisite for continuing to service any Plan. Opus Interactive agrees to provide Customer with reasonable notice via e-mail or fax of any such intent to discontinue or impose conditions unless it is determined that such notice would cause harm to Opus Interactive. The following activities are specifically not allowed by Opus Interactive and will result in IMMEDIATE account termination: Running ADULT web sites, Running HATE web sites, participation in undirected bulk e-mail delivery (SPAMMING) either through the use of our mail servers or not, GAMBLING web sites, or any sites promoting or participating in ILLEGAL activities.
C. Opus Interactive’s liability to Customer, and any end user of any Plan or other Opus Interactive services is limited to the amount paid to and received by Opus Interactive for services not accepted. In no event shall Opus Interactive 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 Opus Interactive has been advised of the possibility of such damage.
D. Customer will take all necessary measures to preclude Opus Interactive from being made a party to any lawsuit or claim regarding Opus Interactive services provided to any Customer or end user. Customer hereby agrees to indemnify and hold harmless Opus Interactive from any and all claims of whatever nature brought by any of Customer’s customers against Opus Interactive in excess of the remedy set forth in paragraph 5(C).
E. In no event shall Opus Interactive be liable to Customer, or any other entity for any special, consequential, or other damages if customer experiences web site issues due to upgrades in software, hardware, or other systems that live on Opus Interactive servers for the purpose of hosting websites. Customer is responsible for any website code updates necessary to maintain proper functionality.
6. PROPERTY RIGHTS
Opus Interactive owns all rights, titles and interests in Opus Interactive’s trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of Plans and of 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 Opus Interactive’s trade names or service marks. The use by Customer of the other property rights mentioned here is authorized only for the purposes of marketing and selling Plans.
Customer acknowledges that by reason of its relationship with Opus Interactive hereunder, it may have access to certain information and materials relating to Opus Interactive’s business, plans, customers, software, and marketing strategies that is confidential and of substantial value to Opus Interactive, which value would be impaired if such information were disclosed to third parties. Customer 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 Opus Interactive. Customer 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 Opus Interactive 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, Opus Interactive shall be entitled to injunctive relief, which relief shall not be contested by Customer.
8. RELATIONSHIP OF THE PARTIES
The relationship between Opus Interactive 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. Customer has no authority, apparent or otherwise, to contract for or on behalf of Opus Interactive, or in any other way legally bind Opus Interactive in any fashion, nor shall Customer be authorized to make any representations about Opus Interactive or its services other than to set forth Opus Interactive’s responsibilities as outlined in this agreement.
9. APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement takes effect when accepted by Opus Interactive in Oregon. It is to be governed by and construed under the laws of the State of Oregon and the United States of America. The federal and state courts of the State of Oregon shall have exclusive jurisdiction to adjudicate any non-arbitral dispute arising out of this agreement. Customer hereby expressly consents to (1) the jurisdiction of the courts of Oregon and (2) service of process being effective upon it by registered mail sent to the address set forth at the beginning of this document, as may be changed from time to time by written notice actually received by Opus Interactive. To the extent permissible by the law of Customer’s jurisdiction, Customer waives any requirement that service of process or of any documents be made upon it pursuant to the provisions of the Hague Convention.
10. ATTORNEY FEES
Whether or not litigation is commenced, Borrowers promise to pay all costs of collecting overdue amounts. Without limiting the foregoing, in the event that the holder consults an attorney regarding the enforcement of any of its rights under this note or any documents securing the same or if this note is placed in the hands of an attorney for collection or if suit is brought to enforce this note or any documents securing same, Borrowers promise to pay all costs thereof including such additional sums as the court may adjudge reasonable as attorneys fees including, without limitation, costs and attorney fees incurred in any appeal or proceeding under the bankruptcy code or receivership.
11. ENTIRE AGREEMENT; MODIFICATIONS
This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. Opus Interactive may make changes to this agreement upon thirty (30) days’ written notice to Customer, advising of the change and the effective date thereof. Utilization of Opus Interactive services by Customer and/or its Customers following the effective date of such change shall constitute acceptance by Customer of such change(s). Otherwise, this agreement may not be modified except by the of written consent of both parties.
To this end the parties agree as follows:
Principles Governing Acceptable use of the Internet by the Customer
Responsibility and Respect – The Internet is a network intended for use by adult and adolescent users. The Customer recognizes this principle and undertakes at all times to act with respect, courtesy and responsibility, giving due regard to the interests and rights of other Internet users. This general guideline carries with it the following specific responsibilities:
- a) Knowledge of the Internet – The Customer agrees to obtain a basic knowledge of the Internet and it’s operating principles and procedures.
- c) Improper Uses – The Customer will avoid violation of certain generally accepted guidelines on Internet usage such as restrictions on mass mailings and mass advertisements, pirating or copying of software, mail bombing or other methods of attempting to deny service or access to other users, and attempts to violate security.
- d) Unsolicited Commercial Email – We strictly prohibits Unsolicited Commercial Email, also known as “spam”. This includes using our network to distribute unsolicited bulk email from your site on our servers or using any outside network to send bulk email advertising your site on the Opus Interactive servers. Opus Interactive reserves the right to immediately terminate any customer account associated with unsolicited email and no refund will be issued for any unused service fees.
- e) Compliance with Laws – The Customer will ensure that their use of the Internet complies with all applicable federal, state and local law and regulation, including but not limited to those principles of law which protect against compromise of copyrights, trade secrets, proprietary information and other intellectual property rights, libel or defamation of character, invasion of privacy, tortuous interference, and export of technical or military data to prohibited countries.
- f) Validation of Information – The Customer is responsible for validating the integrity of the information and data it receives or transmits over the Internet.
- g) Security – The Customer is required to protect the security of its Internet account and usage. The Customer(s) password will be treated as private and confidential and not disclosed to or shared with any third parties.
- h) Discretion and Judgment – The Customer is expected to use discretion in the treatment and handling of Internet information and data and to take particular care to insure that adult information is not transmitted to juvenile users of the Internet.
- i) Pornography – Due to legal and social issues, we will not accept any customers who publish, store or otherwise process pornographic material. If an existing customer violates this principle, Opus Interactive reserves the right to immediately terminate the Customer’s account and no refund will be issued for any unused service fees. Material deemed to be pornographic is the sole discretion of Opus Interactive, with due regard to the laws of the State of Oregon, USA.
- j) Excessive Service Usage – Customers are restricted from using excessive amounts of CPU processing, network bandwidth or other shared resources provided by Opus Interactive. Excessive usage charges over and above Plan pricing may be charged retail overage charges on a per-unit basis for data transfer and disk storage according to the prices listed on the Opus Interactive web site. Judgments of excessive usage are determined solely by Opus Interactive and will be considered in comparison to other Opus Interactive customers using similar services. Opus Interactive will contact customers with resource intensive requirements and attempt to accommodate such needs. In the case that an agreement cannot be made to the satisfaction of both Opus Interactive and the customer, and that the customer continues to use excessive resources, Opus Interactive reserves the right to immediately terminate any customer account associated with excessive resource usage.