NJ Internet Access

Hosting Service Agreement

1.   Customer wishes NJ Internet Access to provide a server machine and the services as set forth in this Agreement and NJ Internet Access is willing to provide such products and services under the terms and conditions specified in this Agreement.

2.   Provider reserves the right to change its services offering with notice to Customer 30 days in advance of any change with written approval of the customer; provided, however, Provider shall not increase the price for web hosting during the Service Period.      

3.  No Alterations

Provider shall not, without prior written authorization from Customer, alter, modify or change in any way the Content or other materials provided by Customer.  Provider shall use all such materials in strict compliance with any instructions provided by the Customer.

4.  Personally Identifiable Information

Provider shall adhere to all privacy and data protection laws applicable to its gathering, processing, storing and transmitting of user information. Provider shall maintain the strict confidentiality of all user information, including credit card numbers.

5.  Use of Content

Provider shall not use the Content or Customer’s Confidential Information (as defined herein) for any purpose other than that of fulfilling Provider’ obligations under this Agreement, nor will the Content, or any part thereof, including, without limitation, any trademark or font or type style or graphic or pictorial images or text be disclosed, transmitted, sold, assigned, leased or otherwise disposed of to, or made available for access by, third parties by Provider, or be commercially exploited by or on behalf of Provider, its employees, agents, or subcontractors, except as expressly provided in this Agreement. All of the Content and the Site, including, without limitation, any and all copyrights, trademarks, or trade names and other proprietary rights inherent therein or appurtenant thereto, are and shall remain the exclusive property of Customer.

6.  This agreement begins the day NJ Internet Access services are provided to Customer. The term of this agreement is 1 year from date of commencement. Service will automatically renew for an additional year every anniversary date unless Customer provides at least sixty (60) days prior written notice. NJ Internet Access reserves the right to terminate this agreement without cause as long as sixty (60) days notice is provided to Customer.

7.  Prior to installation of Service, Provider will issue an invoice to Customer for the Installation, setup fees and other applicable non-recurring fees covering the initial one-year period. On a monthly basis, Provider will determine customer actual usage.  After the initial one-month period, Provider will issue invoices on a monthly basis based on data transferred at the rates set forth in the Service Pricing and Specifications Attachment and the Included Features/Equipment List Attachment.  Invoices are to be paid by Customer via credit card.

8.   Upon termination of this Agreement, Customer must relinquish use of the IP addresses or address blocks assigned to it by Provider in connection with the Service.

9.   Customer will designate qualified personnel to act as liaison between Customer and Provider.

10.   Customer shall retain title to all rights in Content which includes, but is not limited to, text, multimedia images (graphics, audio and video), software and other data installed by Customer on the Server (collectively called Content); however, Provider shall retain title to and all rights in all other intellectual property including, but not limited to, any know-how related to Provider provided products or services such as hardware, software or any other server technology.

11.   Customer is solely responsible for Content, including any subsequent changes or updates made or authorized by the Customer. Customer warrants and represents that Content (i) does not infringe or violate the rights of any third party including, but not limited to, intellectual property rights, (ii) is not abusive, profane or offensive to a reasonable person, (iii) is not defamatory; and (iv) does not violate any applicable law. Provider reserves the right (but shall have no obligation) to delete any material installed on a server in a Provider facility or to disconnect Internet access which it believes in good faith breaches any of the foregoing warranties, after providing customer with no less than thirty (30) days advance written notice thereof.

12.   Confidentiality

Provider, in performing the Services for Customer hereunder, will have access to or be exposed to, directly and indirectly, Content, user information, data, knowledge and information of Customer in oral, graphic, written, electronic or machine readable form, including, without limitation, any trademark or font or type style or graphic or pictorial images or text or copyrightable subject matter or proprietary information (hereinafter collectively referred to as “Confidential Information’). Confidential Information shall not include information which can be demonstrated: (i) to have been rightfully in the possession of Provider from a source other than Customer prior to the time of disclosure of said information to Provider hereunder (“Time of Receipt”); (ii) to have been in the public domain prior to the Time of Receipt; (iii) to have become part of the public domain after the Time of Receipt by a publication or by any other means except an unauthorized act or omission or breach of this Agreement on the part of Provider, its employees, or agents; or (iv) to have been supplied to Provider after the Time of Receipt without restriction by a third party who is under no obligation to Customer to maintain such information in confidence.

13.   Obligations

Provider acknowledges that it will receive Confidential Information of the Customer relating to its technical, marketing, product and/or business affairs. All Confidential Information of the Customer shall be held in strict confidence and shall not be disclosed or used without express written consent of the Customer, except as may be required by law. The Provider shall use reasonable measures and reasonable efforts to provide protection for Confidential Information, including measures at least as strict as those Provider uses to protect its own Confidential Information.

14.   Customer is solely responsible for the contents of its transmissions over the Internet. Customer agrees to comply with the U.S. law in regard to the transmission of technical data which is exported from the United States through Provider. Customer further agrees not to use the Web service (i) for illegal purposes, or (ii) to interfere with or disrupt other network users, network services or network equipment. Interference or disruptions include, but are not limited to, distribution of unsolicited advertising or chain letters, propagation or computer worms and viruses, and the use of the network to make unauthorized entry to any other machine accessible via the network. Violations of the foregoing by Customer may result in early termination of Web Service.

15.   This Agreement is based on a thirty (30) day term.  Customer may terminate this Agreement for convenience at any time, by providing Provider with sixty (60) days advanced written notice. In the event of early termination the Customer is responsible for the difference between the full month(s) hosting fees minus the monies paid to Provider already for hosting.

16.  Uptime:  Except as otherwise agreed in writing by the Parties, the Site shall be accessible to Internet users twenty-four (24) hours per day, seven (7) days per week, with the sole exception of scheduled maintenance periods, which shall last approximately one (2) hour period per day and which shall take place each morning between the hours of 1a.m. and 3a.m. Eastern Standard Time).  Provider also reserves the right to perform any emergency service is deems necessary.

17.  Provider Warranties:  Provider represents and warrants that: (i) all of the Services to be performed by it hereunder will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable, trained and qualified personnel; (ii) it has full authority to enter into this Agreement; (iii) all obligations owed to third parties with respect to the activities contemplated to be undertaken by Provider pursuant to this Agreement are or will be fully satisfied by Provider, so that Customer will not have any obligations with respect thereto; (iv) Provider is the owner of or otherwise has the right to use and distribute all materials and methodologies used in connection with providing the Services hereunder; (v) Provider will comply with all applicable federal, state and local laws in the performance of its obligations hereunder; (vi) the Software, the Server, and other materials used by Provider in fulfilling its obligations under this Agreement shall not infringe upon any third party copyright, patent, trade secret or other proprietary right.

18.  Provider makes no other warranty of any kind with respect to services and products provided under this agreement. Provider DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In any instance involving performance or nonperformance of services or products provided hereunder, customers sole remedy shall be (a) in the case of services, refund of a prorated portion of the price paid for services which were not provided, or (b) in the case of products, repair or return of the defective product to Provider for refund, at the option of Provider. Except as may otherwise be set forth in this agreement, in the case of refund for lost services, credit will only be issued for periods of lost service greater then twenty-four (24) hours. 

19.   Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity.

20.   Provider will not be liable for any damage Customer may suffer arising out of use, or inability to use, its Internet Services or related products unless such damage is caused by an intentional and willful act of Provider. In no event shall Provider be liable for unauthorized access to Customers transmission facilities or Customer premise equipment or for unauthorized access to or alteration, theft or destruction of Customers data files, programs, procedure or information through accident, fraudulent means or devices, or any other method. Provider will not be liable for indirect, incidental, special or consequential damages or for any lost property or data of Customer. Provider liability for damages to Customer for any cause whatsoever, regardless of form of action, including negligence, shall not exceed an amount equal to the price of products and services purchased by customer during the twelve month period preceding the event which caused the damages or injury; provided, however, that this limitation shall not apply to damages Customer for personal injuries or destruction of tangible personal property proximately caused by negligence of Provider.

21.   Indemnification

21.1 Provider

Provider agrees to indemnify, defend, and hold harmless Customer, its directors, officers, employees and agents, with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that it is based upon a claim that: (i) if true, would constitute a breach of any of Provider's representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Provider; or (iii) any of the Provider Materials or Services to be provided by Provider hereunder infringes or violates any patents, copyrights, trade secrets, licenses, or other property rights of any third party.

21.2 Customer

Customer agrees to indemnify, defend and hold harmless Provider, its directors, officers, employees and agents, with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that it is based upon a claim that: (i) if true, would constitute a breach of any of Customer's representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Customer; or (iii) any of the Content provided by Customer hereunder and used by Provider as contemplated in this Agreement infringes or violates any patents, copyrights, trade secrets, licenses, or other property rights of any third party.

22.  Customer understands that Internet use and related products and services provided under this AGREEMENT, may require registrations and related administrative reports which are public in nature.

23.   Customer right to use the Internet services and products provided hereunder is limited to Customer and is nontransferable except to organizations controlling, controlled by, or under common control with Customer. Customer may also transfer its right to use these Internet services and products if transferred as part of a sale or transfer of substantially all its assets subject to approval of Provider which will not be unreasonably withheld.

24.   Customer agrees to abide by the Acceptable Use Policy. This Acceptable Use policy may be revised and updated at anytime, to be determined solely at the discretion of Provider, and will always be made available for review on the Provider web site, at http://www.njaccess.com.  Any violation of the Acceptable Use Policy may result in early termination of Service.  Customer is not responsible for complying with any provisions of the Acceptable Use Policy until Customer has been notified by Provider of new or modified provisions.  Whenever there is a difference in compatibility, or ambiguity between this Agreement and the Acceptable Use Policy, this agreement has precedence.   

25.   Customer Warranties

Customer represents and warrants that: (i) it has full authority to enter into this Agreement; (ii) all obligations owed to third parties with respect to the activities contemplated to be undertaken by Customer pursuant to this Agreement are or will be fully satisfied by Customer, so that Provider will not have any obligations with respect thereto; (iii) Customer will comply with all applicable federal, state and local laws in the performance of its obligations hereunder; and (iv) no materials provided by Customer for inclusion in the Site infringe any intellectual property, publicity or privacy rights of any third party and are not libelous.

26.  Disclaimers of Warranty

THE WARRANTIES SET FORTH IN SECTIONS 23, 24 AND 31 ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY THE RESPECTIVE PARTIES.  THE PARTIES EXPRESSLY DISCLAIM, AND HEREBY EXPRESSLY WAIVE, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER MAKES NO WARRANTIES OR GUARANTEES AS TO THE ACCURACY OR COMPLETENESS OF ANY CONTENT PUBLISHED OR MADE ACCESSIBLE ON THE SITE.

27.  Limitation of Liability

EXCEPT FOR THE INDEMNITY OBLIGATIONS OF EACH PARTY HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

28.  This Agreement and the electronic order form are the entire agreement between the parties on this subject and supersedes all prior negotiations, understandings and agreements between the parties concerning the subject matter. No amendment or modification of this Agreement shall be made except by writing signed by both Parties.