| COLOCATION
HOSTING SERVICES AGREEMENT
THIS COLOCATION HOSTING SERVICES
AGREEMENT (this "Agreement") is made, effective as of the later
of the dates appearing below the signatures of the parties on the signature
page hereof (the ''Effective Date"), by and between ACNT INC., a Nevada
corporation ("ACNT"), and ("Customer").
BACKGROUND:
Customer desires to engage ACNT
to provide certain Web site hosting services, and ACNT desires to be so
engaged, on and subject to the terms and conditions set forth in this Agreement.
AGREEMENT:
The parties hereto agree as follows:
1. Services. Customer hereby engages ACNT to provide the Web site hosting
and other services specified herein, and ACNT agrees to provide such services
during the term of this Agreement. During the term of this Agreement, ACNT
shall host the Customer Web site (such term and certain other capitalized
terms being defined in Section 15) on a server or servers dedicated to
Customer and provide the services, features and functionality specified
on Schedule 1 attached hereto (collectively, the "Services").
Subject to the terms of this Agreement, ACNT shall procure all hardware,
software, and materials necessary for the performance of its obligations
under this Agreement, and ACNT shall own all rights, titles, and interests
in and to such hardware, software and materials. ACNT may subcontract with
third parties for implementation and performance of the Services.
2. Fees, Taxes and Payment. In consideration
of ACNT's performance of the Services, Customer shall pay to ACNT the service
fees set forth on Schedule 2 attached hereto (the "Service Fees").
Payment terms are also set forth on Schedule 2. ACNT shall have the right
to increase the Service Fees at any time on or after expiration of the
Initial Term (as defined in Section 3) by providing 60 days prior written
notice thereof to Customer. 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. All such taxes will be added to ACNT's invoices
for the Service Fees as separate charges to be paid by Customer. Notwithstanding
the foregoing, Customer shall not have any liability for, and shall not
be obligated to pay, any income taxes of ACNT. All of ACNT's invoices for
the Service Fees and related charges shall be due and payable within 30
days after the date of the invoice. Any amounts payable to ACNT hereunder
which are not paid when due shall thereafter 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 any payment due ACNT is collected
at law or through an attorney at law or under advice therefrom or through
a collection agency, Customer agrees to pay all costs of collection, including,
without limitation, all court costs and reasonable attorneys' fees.
3. Term and Termination.
(a) The rights and obligations of
the parties under this Agreement shall commence as of the Effective Date
and, unless sooner terminated as provided in this Agreement, shall continue
for an initial period of ____________ months from the Effective Date (the
"Initial Term"). Thereafter, this Agreement shall be automatically
renewed for successive periods of ____________ months, unless either party
gives written notice to the other party of non-renewal at least 30 days
prior to expiration of the then-current term.
(b) Notwithstanding the foregoing,
either party shall have the right to terminate this Agreement immediately
upon the occurrence of any one or more of the following events: (i) failure
of the other party to pay when due any amounts owed hereunder; (ii) breach
by the other party of any material term or provision of this Agreement
(other than failure to make payments due under this Agreement), and if
capable of cure, failure to cure within 30 days of written notice thereof
by the non-breaching party; (iii) the other party becomes insolvent or
makes an assignment for the benefit of its creditors; (iv) any proceeding
is instituted by or against the other party under any bankruptcy or similar
laws for the relief of debtors; or (v) the appointment of any trustee or
receiver for all or any portion of the other party's assets.
(c) Notwithstanding any provision
of this Agreement to the contrary, if the Services become prohibited, impractical
or unfeasible for any technical, legal or regulatory reason, ACNT may terminate
this Agreement by providing Customer with as much prior notice as is reasonably
practical.
(d) 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. The provisions of Sections 3(d), 4, 8, 10, 11, 13 and 14 of this
Agreement shall survive the expiration or termination of this Agreement
for any cause or reason whatsoever, and, notwithstanding the expiration
or termination of this Agreement, the parties shall each remain liable
to the other for any indebtedness or other liability theretofore arising
under this Agreement. If ACNT terminates this Agreement under Section 3(b),
or if Customer terminates this Agreement for any reason other than in accordance
with Sections 3(b)(i) or (ii), then ACNT shall be entitled to retain all
Service Fees or other fees or charges paid in advance by Customer hereunder
and under any other agreement between Customer and ACNT, regardless of
whether such fees have been earned by ACNT (the "Termination Charge").
Termination of this Agreement and such Termination Charge shall not be
in lieu of, but shall be in addition to, any other legal or equitable rights
or remedies to which ACNT may be entitled. If Customer terminates this
Agreement in accordance with Sections 3(b)(i) or (ii), ACNT shall return
to Customer, and Customer shall accept, as Customer's sole and exclusive
remedy for ACNT's breach of this Agreement, a pro rata portion of all Service
Fees and other fees and charges paid in advance by Customer hereunder based
upon the percentage of the pre-paid service term remaining after the date
of termination. Such pro rata portion of all Service Fees and other fees
and charges paid in advance by Customer hereunder shall also be returned
to Customer by ACNT if ACNT terminates this Agreement under Sections 3(c)
or 12(c). Except as expressly provided above, ACNT shall have no liability
to Customer by reason of expiration or termination of this Agreement whether
based on goodwill established or investments made by Customer or otherwise.
4. Customer's Representations and
Warranties. Customer hereby represents and warrants to ACNT that: (a) Customer
is and shall remain at all times during the term of this Agreement 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 ACNT to pay any
fees, residuals, guild payments or other compensation of any kind to any
Person; (b) there are no conflicting claims with respect to Customer's
rights to the Customer Content; (c) 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; (d) Customer is and will remain in
compliance with all applicable laws, rules and regulations regarding the
Customer Content and the Customer Web site, and the Customer Content is
not obscene; (e) the Customer Content is and will remain accurate and correct
in all respects and will conform to general standards of behavior on the
Internet; and (f) 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.
5. License to ACNT. Customer hereby
grants to ACNT a non-exclusive, royalty-free, worldwide right and license
during the term of this Agreement to do the following (but only in connection
with the hosting of the Customer Web site in accordance with this Agreement):
(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 as reasonably necessary to operate, update,
support and maintain the Customer Web site in accordance with this Agreement
and ACNT's archiving policies (provided, however, that such archival material
will be made available to Customer only under separate terms and conditions,
including pricing). Except for the rights expressly granted above, ACNT
is not acquiring any rights, titles or interests in or to the Customer
Content, all of which shall remain solely with Customer.
6. ACNT's Rules and Regulations.
ACNT imposes rules and regulations regarding the use of its services (the
"Rules and Regulations"). The Rules and Regulations are currently
posted on ACNT's Web site at http://support.acnt.net/ policies/usage_policies.html.
All such Rules and Regulations, as they may be altered, amended, supplemented
or changed by ACNT from time to time, are hereby incorporated herein and
made a part hereof by this reference. Customer shall (i) use the Services
only for lawful purposes and in accordance with this Agreement, (ii) comply
with the Rules and Regulations, and (iii) impose the Rules and Regulations
on its customers and End Users to the extent necessary to ensure their
compliance. Customer shall familiarize itself with the Rules and Regulations
and periodically access ACNT's Web site to determine if ACNT has made any
changes thereto. Although ACNT does not monitor or exercise editorial control
over its accounts and does not undertake to police any material or content
stored on or transmitted to, from or through its system (except to the
extent required by law), if ACNT becomes aware of any violation of the
Rules and Regulations, ACNT reserves the right to remove any material or
content violating the Rules and Regulations from its system. In addition,
if ACNT becomes aware of any material or content stored on its system which
ACNT In its sole discretion, considers to be (i) in violation of any applicable
law, rule or regulation, (ii) potentially infringing on rights of third
parties, or (iii) obscene, lewd, filthy, excessively violent, harassing
or otherwise objectionable, ACNT may remove such material or content from
its system and terminate or prevent access to its system by Persons who
transmitted such material or content to, from or through ACNT's system.
7. Customer's Responsibilities.
(a) 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.
(b) Customer shall cause to remain
in full force and effect during the term of this Agreement, at its expense,
all rights, licenses, permissions, waivers, releases and consents necessary
to permit use of any Customer Content on the Customer Web site. Customer
will make any and all applicable payments therefor when and as such payments
become due.
(c) Customer shall fully cooperate
with ACNT in connection with ACNT's performance of the Services. Customer
must provide any equipment or software which may be necessary for Customer
to use the Services.
(d) Customer shall clearly identify
all aspects of the Customer Web site, including, but not limited to, any
bulletin boards or chat rooms (if such functionality is permitted under
this Agreement) as being controlled by Customer.
(e) Customer must ensure that the
information it and the End Users transmit and receive complies with all
applicable laws, rules and regulations and the Rules and Regulations.
(f) 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.
(g) Customer will provide ACNT with
a registered domain name for the Customer Website, or, upon Customer's
request and subject to the terms and conditions set forth below, ACNT will
register an Internet domain name on behalf of Customer (but only with the
US InterNIC). ACNT's registration of any domain name is subject to (i)
ACNT receiving from Customer all information needed from Customer in order
to complete such registration, and (ii) such domain name not being in violation
of any applicable law, rule or regulation or the policies of Network Solutions
or other registration service. Registration of a domain name will also
be subject to availability of such domain name for registration, and ACNT
will not be responsible if a domain name is not available for any reason.
ACNT will also not be responsible for any infringement of third party rights
caused by its registration of a domain name for Customer. ACNT's obligations
under this Section are limited to ACNT's using commercially reasonable
efforts to promptly register the domain name after it receives the necessary
information from Customer. Customer hereby waives any and all claims which
it may have against ACNT for, and hereby releases ACNT of and from, any
loss, damage, liability or expense arising out of, or relating 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
ACNT for any reason. Customer shall reimburse ACNT for all costs and expenses
incurred by ACNT in registering or maintaining a domain name for Customer,
including, without limitation, all fees charged by the InterNIC, Network
Solutions or other registration service. Customer acknowledges that its
rights to any domain name registered by ACNT are not being granted by ACNT
but are subject to the rules and regulations of the InterNIC and applicable
law. Customer agrees to be bound by the terms of the InterNIC's then current
domain name policies and the policies of the national DNS registration
authorities to which Customer becomes subject upon registration of the
domain name. Customer's inability to use a domain name shall not entitle
Customer to a refund by ACNT of any fees paid with respect to the registration
of such unusable domain name. The domain name and address for the Customer
Web site shall be the property of Customer.
(h) Because the 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 shall periodically access ACNT's Web site to
determine if ACNT has made any changes thereto. ACNT 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 ACNT to provide the Services.
(i) Customer shall be solely responsible
for making back-up copies of the Customer Web site and Customer Content.
(j) Delay or failure by Customer
to fulfill its responsibilities under this Agreement may result in an adjustment
to the schedule for delivery of the Services and shall release ACNT from
its obligations under this Agreement to the extent ACNT is adversely affected
by such Customer delay or failure.
8. ACNT Intellectual Property.
(a) ACNT hereby grants to Customer
a non-exclusive, non-transferable, royalty-free license, exercisable solely
during the term of this Agreement, to use applicable ACNT Technology solely
for the purpose of accessing and using the Services. Customer shall have
no right to use the ACNT Technology for any purpose other than accessing
and using the Services. Except for the rights expressly granted above,
this Agreement does not transfer from ACNT to Customer any ACNT Technology,
and all rights, titles and interests in and to the ACNT Technology shall
remain solely with ACNT. Customer shall not, directly or indirectly, reverse
engineer, decompile, disassemble or otherwise attempt to derive source
code or other trade secrets from any of the ACNT Technology.
(b) ACNT's trademarks, tradenames,
service marks, logos, other names and marks, and related product and service
names, design marks and slogans are the sole and exclusive property of
ACNT. Customer is not authorized to and shall not use any of the foregoing
in any advertising, publicity or in any other commercial manner without
the prior written consent of ACNT.
(c) Any feedback, data, answers,
questions, comments, suggestions, ideas or the like which Customer sends
to ACNT relating to the Services will be treated as being non-confidential
and non-proprietary. ACNT assumes no obligation to protect such information
from disclosure and will be free to reproduce, use and distribute such
information to others without restriction. ACNT will also be free to use
any ideas, concepts, know-how or techniques contained in such information
for any purpose whatsoever, including, without limitation, developing,
providing and marketing products and services incorporating such information.
9. Limited Warranty.
(a) ACNT 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 ACNT generally
to its other customers for the same services; and (iii) in compliance in
all material respects with any specifications and requirements set forth
on Schedule 1. Customer shall notify ACNT within 30 days after performance
of any Services if such Services do not conform to the foregoing warranties.
Otherwise, such Services will be deemed to be in compliance with the foregoing
warranties. Customer's sole and exclusive remedy, and ACNT's sole obligation,
for breach of the warranties set forth above shall be for ACNT, 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.
(b) The foregoing warranties shall
not apply to performance issues or defects in the Services (i) caused by
factors outside of ACNT'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 ACNT.
c) EXCEPT AS EXPRESSLY PROVIDED
IN THIS SECTION 9, ACNT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS
OF THE SERVICES FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF
THIRD PARTY RIGHTS, AND ACNT HEREBY EXPRESSLY DISCLAIMS THE SAME. ACNT
DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR
COMPLETELY SECURE.
10. Limitation of Liability.
(a) IN NO EVENT WILL ACNT'S LIABILITY
IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, WHETHER CAUSED BY FAILURE
TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE,
EXCEED THE AGGREGATE SERVICE FEES PAID TO ACNT BY CUSTOMER HEREUNDER DURING
THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH
LIABILITY.
(b) 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 THIS AGREEMENT, 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.
(d) The limitations contained in
this Section 10 apply to all causes of action in the aggregate, whether
based in contract, tort (including negligence) or any other legal theory
(including strict liability), other than claims based on fraud or willful
misconduct. The limitations contained in Section 10(c) shall not apply
to liability arising on account of a party's breach of Section 13 or to
Customer's indemnification obligations under Section 11.
11. Indemnification of ACNT. Customer
shall defend, indemnify and hold harmless ACNT 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 "ACNT 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 the ACNT Indemnitees may suffer, incur or sustain resulting
from or arising out of (i) Customer's breach of any representation, warranty,
covenant or agreement contained this Agreement, (ii) the Customer Content,
the Customer Web site or an 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 any applicable law, rule, regulation
or order, (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 or the Customer Content or the use in connection
with the Services of equipment, software or information not provided by
ACNT, (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 ACNT to provide the Services, including any
damage to ACNT's servers or other hardware caused thereby.
12. Indemnification of Customer.
(a) Subject to Section 10, ACNT
shall, at its own expense, indemnify, defend and hold Customer harmless
from any claim or suit alleging that the Services infringe any United States
patent, copyright or trademark existing on the Effective Date, or that
ACNT has knowingly misappropriated any trade secret or other intellectual
property right of any other Person, including any losses, damages or expenses
arising from any such claim or suit. Customer agrees to cooperate with
and assist ACNT in the defense or settlement of any such claim or suit.
Customer shall be reimbursed for all reasonable out-of-pocket expenses
incurred in providing any cooperation or assistance requested by ACNT,
but ACNT will not be liable for any costs or expenses incurred without
its prior written authorization.
(b) Promptly after receipt by Customer
of a threat of any claim or suit, or a notice of the commencement or filing
of any claim or suit, against which Customer may be indemnified hereunder,
Customer shall give written notice thereof to ACNT, provided that failure
to give or delay in giving such notice to ACNT shall not relieve ACNT of
any liability it may have to Customer hereunder, except to the extent that
the defense of such claim or suit is prejudiced thereby. ACNT shall have
sole control of the defense, and of all negotiations for settlement, of
such claim or suit. Subject to the foregoing, Customer may participate
in the defense of any such claim or suit at its own expense.
(c) If an injunction, decree or
judgment is, or ACNT believes in its sole discretion is likely to be, entered
providing that Customer may not use the Services as contemplated in this
Agreement without violating the intellectual property rights of a third
party, ACNT may, at its sole option and expense, either (i) procure for
Customer the right to use the Services or affected part thereof as provided
in this Agreement; (ii) replace the Services or affected part thereof with
other non-infringing services or modify the Services or affected part thereof
so as to be non-infringing; or (iii) terminate this Agreement upon written
notice to Customer.
(d) Notwithstanding Section 12(a),
ACNT assumes no liability for infringement claims arising from (i) use
of the Services with third party products or services where the third party
products or services cause the infringement, (ii) any modification of the
Services not authorized by ACNT in writing, or (iii) the Customer Content,
the Customer Web site or any content, data or information provided or supplied
by an End User. THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE
THE ENTIRE LIABILITY AND OBLIGATION OF ACNT, AND THE EXCLUSIVE REMEDY OF
CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL
PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.
13. Confidentiality; Non-Solicitation.
(a) Each party agrees that it will
not, without the prior written consent of the other party, for any reason
or at any time, 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. Subject to the provisions
of Section 13(b), each party agrees that it shall (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.
(b) Notwithstanding the provisions
of Section 13(a), the following shall not be considered Proprietary Information
for purposes of this Agreement: (i) any information that the receiving
party can demonstrate by production of written documentation was within
its legitimate possession prior to the time of disclosure by the disclosing
party; (ii) any information which was in the public domain prior to disclosure
by the disclosing party as evidenced by documents which were generally
published prior to such disclosure; (iii) any information which, after
disclosure by the disclosing party, comes into the public domain through
no fault of the receiving party, (iv) any information which 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 which, two years after expiration or termination of this
Agreement, does not constitute a trade secret under applicable law.
(c) 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.
(d) Customer covenants and agrees
that, during the term of this Agreement and for a period of two years following
expiration or termination of this Agreement, Customer will not, directly
or indirectly, solicit or recruit the services of any employee of ACNT
performing services under this Agreement, while such employee is employed
by ACNT and for a period of six months after such employee has left the
employment of ACNT.
14. Miscellaneous.
(a) Independent Contractor. The
parties acknowledge that the relationship of each party to the other under
this Agreement is that of an independent contractor, and that nothing contained
in this Agreement shall be construed to place ACNT and Customer in the
relationship of principal and agent, master and servant, partners or joint
venturers. Neither party shall have, expressly or by implication, or 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.
(b) Governing Law; Jurisdiction.
The validity and effect of this Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Nevada, without
regard to its conflicts of laws principles. The parties expressly disclaim
application of the United Nations Convention on the International Sale
of Goods. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST
BE BROUGHT IN A NEVADA STATE OR FEDERAL COURT LOCATED IN CLARK COUNTY,
NEVADA, 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.
(c) Headings. The headings as to
contents of particular sections and paragraphs are inserted only for convenience
and are in no way to be construed as part of this Agreement.
(d) Entire Agreement; Amendments.
This Agreement, including all Schedules attached hereto, 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 ACNT, 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 ACNT. This Agreement shall
not be modified or amended except by another agreement in writing executed
by the parties hereto.
(e) 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.
(f) 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.
(g) Waiver. No failure or delay
on the part of 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.
(h) Assignment; Successors. Customer
may not assign or transfer this Agreement, or any of its rights or obligations
hereunder, without the prior written consent of ACNT. Any attempted assignment
in violation of the foregoing provision shall be null and void and of no
force or effect whatsoever. For purposes of this paragraph, the term "assignment"
shall include any of the following transactions: (i) a merger involving
Customer in which Customer is not the surviving entity; (ii) a merger involving
Customer in which Customer is the surviving entity but in which securities
possessing more than fifty percent (50%) of the total combined voting power
of Customer's outstanding securities are transferred to other Persons;
or (iii) a sale, assignment or other transfer of Customer's securities
possessing more than fifty percent (50%) of the total combined voting power
of the party's outstanding securities at the time of such transfer. Notwithstanding
anything contained in the foregoing, any underwritten registered public
offering of Customer's securities (as a result of which Customer's securities
will be listed on a national securities exchange or quoted by a national
securities association) shall not constitute an assignment, and shall not
otherwise be subject to this paragraph. ACNT 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.
(i) 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.
(j) Counterparts. This Agreement
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.
(k) Interpretation. The parties
are equally responsible for the preparation of this Agreement, and the
terms hereof shall not be more strictly construed against one party than
the other.
(l) Force Majeure. Neither party
shall be liable for any default or delay in the performance of any of its
obligations under this Agreement (other than failure to make payments due
hereunder) 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, 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 a party to perform its obligations under this
Agreement.
(m) 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.
(n) Government Regulations. Customer
shall 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.
(o) Marketing. Customer agrees that
during the term of this Agreement ACNT may publicly refer to Customer,
orally and in writing, as a customer of ACNT. Any other public reference
to Customer by ACNT requires the written consent of Customer.
15. Definitions. For purposes of
this Agreement, the following terms have the meanings specified below:
(a) "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.
(b) "Customer Web site"
means Customer's site on the World Wide Web portion of the Internet which
ACNT will host on its equipment under the terms and conditions of this
Agreement.
(c) "End User" means any
Person who accesses or uses the Customer Web site via the Internet.
(d) "ACNT Technology"
means ACNT's proprietary technology, including, without limitation, ACNT
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 ACNT or licensed to ACNT
from a third party), and also including any derivatives, improvements,
enhancements, updates, modifications or extensions of ACNT Technology conceived,
reduced to practice or developed during the term of this Agreement by either
party.
(e) "Person" means and
includes an individual, a partnership, a joint venture, a corporation,
a limited liability company, a trust, an unincorporated association or
organization, and a government or any agency or political subdivision thereof.
(f) "Proprietary Information"
means all technical, business and other information of a party which 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, including,
without limitation, any technical or non-technical data, designs, methods,
techniques, drawings, processes, products, inventions, improvements, methods
or plans of operation, research and development, business plans and financial
information of such party. Such Proprietary Information shall be contractually
subject to protection pursuant to the provisions of this Agreement without
regard to whether such Proprietary Information would otherwise be regarded
or legally considered "confidential" and without regard to whether
such Proprietary Information constitutes a trade secret and is also protectable
at law or in equity as a trade secret.
Authorized representatives of ACNT and Customer have read this Agreement,
including all Schedules attached hereto and documents referred to or incorporated
herein, and agree and accept such terms and conditions as of the Effective
Date.
ACNT:
ACNT INC.
By: __________________
Name: __________________
Title: __________________
Date: __________________
Address for Notices:
ACNT Inc.
5300 W. Sahara Ave Suite 101
Las Vegas, Nevada 89146
Attention: General Counsel
Facsimile No.:__________________
CUSTOMER:
By: __________________
Name: __________________
Title:__________________
Date: __________________
Address for Notices:__________________
Attention: __________________
Facsimile No.: __________________
SCHEDULE 1
Services Description
A. Standard Features
The following standard features are provided to all customers of ACNT's
dedicated Web site hosting services:
Professionally Maintained High Performance Secured Data Center
Servers are located in a state-of-the-art Data Center facility and are
protected by firewall systems - PICS on Unix Platform. The firewall infrastructure
is built as a fault tolerant load sharing infrastructure with appropriate
failover technologies and procedures. Access to the Data Center can be
made through a PICS secure Virtual Private Network (VPN) with user authentication
options. The Data Center includes the following features:
· Racked Mounted Servers
· Provision of single phase un-interruptible power supply nominal
220/240V, 50Hz or 48V DC (Range 42-54V)
· Two separate building power feeds and an on-site emergency diesel
generator
· 1 hour battery backup in case of failure of all of the above
· Building management system covering electrical, mechanical, fire
detection and water leakage
· Ionization and optical smoke detectors
· Two stage (dry) sprinkler system for fire protection of all areas
· Fully air conditioned, maintaining a constant ambient temperature
of 20 degrees Celsius (+/- 2 degrees) with relative humidity of 40-60%
in all areas of facility
· Limited access environment
7 X 24 System and Customer Support
The Operation Center at the Data Center provides first level technical
support for its Hosting Services (ACNT Inc.)
Support includes:
· Monitoring all of the Data Center equipment and resources
· Network Monitoring
· Systems and Applications Monitoring
· Security Management & Monitoring
Account Management
Hosting customers will have access to Customer Operations for customer
support related needs such as assistance with billing, general account
support questions and update requests. The customer service support is
available Monday through Friday form 8:00 AM to 5:00 PM, Eastern time.
Server Monitoring
The Operation Center will monitor server network status only. The server
network status is monitored by sending ping commands to the servers. If
the server does not respond to the ping command or a positive result is
not returned, the server will be considered down and standard trouble management
procedures will be invoked
Standard Reporting Capabilities
Standard usage and performance logs
for either weekly or monthly period will be provided for the customer.
The data will be sent to the client via email or stored in a directory
on the server. Log files will provide actual disk space usage and system
utilization. Reports containing any analysis of traffic falls under the
custom reporting category as discussed below.
B. Optional Features
The following optional features will be provided to Customer upon request
and at additional charges:
1. Additional Disk Space
Customers may add additional disk drives as required. Additional charges
will apply for extra disk drives, and a setup charge will also apply.
2. Additional Memory
Customers may add additional main memory (RAM) as required. Additional
charges will apply for extra memory. A setup charge will also apply.
3. Additional Dedicated Hosting
Machines
Customers may add additional machines to compensate for performance and
capacity issues. Setup charges and additional service fees will apply.
4. Custom Reporting
ACNT will provide custom reports as mutually agrees by the parties. Additional
charges will apply.
SCHEDULE
2
Service Fees and Payment Terms
Set up fees for hosting plan:__________________
Monthly service charges:__________________
Total due upon execution of this agreement: __________________
Monthly service fee due:__________________
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