These Terms and Conditions apply to invoice number _____________, dated _______________, for an Internet mailing list. Exhibit A lists the financial terms ("Prices") of this agreement, and is included herein. Exhibit B outlines the terms of the anti-spam agreement ("Acceptable Use Policy") and is included herein.
Fat City Network Services (hereinafter referred to as "Provider") agrees to provide Internet mailing list services (hereinafter referred to as "Service") for ____________________________________________ (hereinafter referred to as "Customer") as described below. These Terms and Conditions state the full Agreement between Provider and Customer with respect to the Service to be provided to Customer by Provider. Any other or prior agreements between Provider and Customer with respect to the subject matter of this Agreement are hereby superseded.
1) Set Up. Provider to set up and create of an initial number of mailing lists as defined in Exhibit A. Each list to be administered and controlled via the ListGuru program in an automated fashion, hosted from the fatcity.com domain only. One initial list to be provided for a 10-day trial period during which Customer may terminate this agreement at any time and receive a full refund.
2) Maintenance. Provider to undertake on-going maintenance and administration of the mailing lists, which may include testing, initial loading of subscriber lists, creation of new lists, deletion or changes to the lists, modification of information reply packets, activation of ListGuru processing, E-mail address aliasing, bounce rectification, backup, administration, archiving and storage, and all activities deemed to be reasonable administration efforts needed to maintain the mailing lists. This may include scheduled and unscheduled downtime of the Service. All reasonable attempts will be made by Provider to announce scheduled downtimes to Customer at least seven days in advance of the date. Provider to ensure a minimum of weekly backups for Customer's Service.
3) Acceptable Use.
(a) Customer agrees to abide by the anti-spam ("Acceptable Use Policy") in Exhibit B, in effect by Provider. Provider will make every reasonable and good-faith effort to supply a spam-free Service to Customer. Customer guarantees that addresses are collected via opt-in methods, and are solicited by the addressee. Provider requires that a double opt-in mechanism is used to ensure compliance with this requirement, and shall make available such mechanism to Customer. Violation of the anti-spam policy is grounds for immediate termination of this agreement with Customer, and will not result in the refund of any funds that have already been paid, except that Customer will be entitled to the refund of any fees which have been paid in advance with respect to the remainder of the term of this Agreement provided Customer is not otherwise in breach of this Agreement.
(b) Customer may not use the Service for one-time mailings to a list of subscribers, after which the subscriber list is substantially altered or the subscriber list deleted and a new subscriber list created. Customer's subscriber list must be a static, permanent list to which Customer can add and delete new subscribers, and/or they add or delete themselves through normal subscribe/unsubscribe mechanisms.
4) Customer Service. Provider to provide technical support to Customer free of charge via E-mail, with a normal turn-around time of eight hours during normal business hours (Monday through Friday, 0800 to 1700 Pacific, excluding national holidays). Where possible, Provider shall make every attempt to provide technical support in less than eight hours. Should Customer need more immediate help or help outside of the designated hours ("Emergency Technical Support"), they may contact Provider's help desk (at 858-538-5051). Emergency Technical Support is available and billable at a rate of $125.00 USD per hour. Each incident is subject to a one-hour minimum and is billed in quarter hour increments thereafter. Provider will monitor the mailing list server and network 24 hours a day, seven (7) days a week, via automated mechanisms, and receives notifications via E-mail and pager to ensure maximum uptime.
5) Unusual Requests. Excessive and/or unusual activities or services (defined as those not otherwise delineated in this agreement or in Exhibit A) requested by Customer will be offered by Provider for a fee, as agreed upon beforehand by both Customer and Provider, where they fall outside of the assigned normal Service. Written estimate of costs to be supplied by Provider. Neither party is obligated to undertake these unusual activities or services.
6) Right to Modify. This Agreement may be supplemented, modified or amended (each by a "Revision") by Provider at any time at its sole discretion, and each such revision will be effective seven (7) business days after it has been sent to Customer by Provider pursuant to Paragraph 13 ("Notices"). If any Revision is not acceptable to Customer, Customer may terminate this Agreement in the manner provided in Paragraph 12 ("Termination") below. Customer's continued use of Provider's Services under this Agreement after the effective date of such Revision shall be deemed to constitute acceptance of the Agreement as so supplemented, modified or amended. Except as otherwise stated in this Paragraph 6, this Agreement may not be amended, except by a written agreement signed by both parties.
7) Charges.
(a) Customer will be charged for the use of Provider Services in accordance with the Prices listed in Exhibit A. The Prices may be modified by Provider at any time pursuant to section (b) of this Paragraph 7. Payment shall be due within 30 days following receipt of Provider's invoice. Upon Customers account becoming 30 days past due, Provider may impose a seven (7) day disconnect notice demanding payment. If payment is not made after the seven (7) day disconnect period, service will be disconnected and a reconnection charge of $200.00 USD will be charged. In addition one months service must be paid in advance in order to secure Customers future obligations. Monthly fees are not refundable except as specifically provided in this Agreement.
(b) The present rates for the Services are stated in the Prices (Exhibit A). These rates are subject to change by Provider at any time and such change shall become effective 30 days following the delivery of a notice pursuant to Paragraph 13 ("Notices"). If any change in rates is not acceptable, Customer may terminate service under this Agreement as provided in Paragraph 12 ("Termination"). However, Customer's continued use of the Service following the effective date of any change in rates shall be considered acceptance of such change.
(c) Customer is responsible for all charges arising out of its use of the Service whether or not such use is authorized by Customer.
8) Use of Service Content.
(a) Customer may charge their users under separate agreements for use of the Service and any information, communications, software, photos, video, graphics, music, sounds and other material and services provided by Customer or other users of Customer's account (collectively referred to as "Content").
(b) Customer acknowledges, and shall also notify its authorized users, that Provider is not responsible for and does not give any assurance to any person with respect to the validity, value, usefulness or accuracy of Content. Customer and any person using Customer's account shall bear any risk associated with the Content. Provider has the right to monitor the use of the Service, including the Content that may appear from time to time. However, Provider does not prescreen or attempt to censor or review any Content prior to its appearance on the Service. Provider has the right (but not the obligation) to require Customer to remove, prohibit or discontinue any Content on the Service which Provider, in its sole discretion, determines to be harmful, offensive or otherwise in violation of the terms of this Agreement.
9) Intellectual Property Rights.
(a) Content Subject to Rights - Customer acknowledges that Content on Service, whether provided by Customer or others may include material which is the subject of and protected by copyrights, trademarks, service marks and other proprietary rights ("Rights"). Customer acknowledges that such Rights are valid and valuable and are protected and apply to all media that now exists or may in the future exist. Unless specifically provided elsewhere in this Agreement, Customer's ability to use any Content that is protected by such Rights shall be governed by applicable law including relevant patent and trademark law.
(b) Customer Warranty - Customer agrees, and will require each and every one of its users to agree, (i) that it will transmit on Service only Content that is not subject to any Rights in favor of any other party or Content in which the holder of any Rights has given express consent to such transmission and (ii) that by transmitting or allowing the transmission of any Content on the Service, Customer or Customer's users automatically warrant that Provider has the royalty free, perpetual, irrevocable, nonexclusive worldwide right to transmit and display such Content in whole or in part on Service. Customer may obtain the consent of its users to the covenants provided in this paragraph by requiring such persons to perform sign-on procedures that will confirm their agreement to and acceptance of these conditions.
(c) Lawful Use - Customer agrees to use Service only for lawful purposes. Customer recognizes and agrees that Provider at its sole discretion may monitor any and all areas of Service to oversee compliance with this Agreement and Customer will so inform its users that their use of the Service will constitute consent to such monitoring. If Customer or any of its users restricts or inhibits any other customer or user of Provider, Provider may, at its discretion, terminate or limit the right of Customer or Customer's users to use Service.
10) International Usage. Customer acknowledges that its use of the Service allows access to content originating from other customers, ISP's and third parties located in countries other than the United States. Customer agrees that its access to and use of such Content may be governed (in addition to this Agreement) by separate terms and operating policies that conform to appropriate and applicable national laws and customs.
11) Indemnification. Upon request by Provider, Customer agrees to defend, indemnify and hold harmless Provider, its affiliated companies, licensees and ISP's from all liabilities, claims and expenses, including attorneys' fees, arising from breach of this Agreement by Customer or any of Customer's users by use of, or in connection with, the transmission of any Content on the Service whether or not such use was authorized by Customer. Provider reserves the right to approve Customer's counsel to defend any such claims, which approval will not be unreasonably withheld, and to approve any settlement agreement that is not fully covered by applicable insurance. Provider, at Customer's expense, shall cooperate with Customer in the defense of any claims, subject to this indemnification. Provider also reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer hereunder, and in such event, Customer shall have no further obligation to provide indemnification for such matter.
12) Termination. This agreement can be terminated at any time by either party upon written notification to the other party. In the event that this agreement is terminated, after the 10-day trial period, and after the start of an invoice period, no funds shall be refunded to Customer, however Customer will not be liable for future invoice amounts. Customer's notice of termination will be effective upon receipt by Provider. In the event that a Customer's account is so terminated or canceled by Customer or Provider, Customer will be entitled to the refund of any fees which have been paid in advance with respect to the remainder of the term of this Agreement provided Customer is not otherwise in breach of this Agreement.
- Notices.
Notices may be sent by personal delivery, certified mail, return receipt requested, recognized overnight courier or by E-mail, with a printed confirmation of receipt, to the Provider address at the end of this Agreement.
14) Delays. Provider shall not be liable for failure hereunder due to the inability of Customer, Provider or any person to connect to the Internet, or any other failure or unavailability of the Internet for any cause whatsoever, acts of God or nature, or of the public enemy, or of any government or agency thereof, fires, floods, epidemics, quarantine restrictions, strikes, work stoppages, freight embargoes, severe weather, differences with workmen, restrictions imposed by governmental agencies, war, hostilities, riot, rebellion, delay in or lack of transportation facilities, inability to secure materials, power failure or fluctuation or any other cause beyond the control of Provider, or Provider's exercise of its rights under this Agreement. In the event of delay by Provider due to any such cause, the date of performance of any act by Provider will be postponed by such length of time as may be reasonably necessary to compensate for such delay.
15) Applicable Law. To the extent of any conflict between this Agreement and Exhibits A or B, this Agreement shall take precedence. If any portion of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that portion shall be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties and the remaining portions shall remain in full force and effect. This Agreement shall be governed by the laws of the State of California, excluding its conflicts of law rules, and Customer and Provider each submit to the exclusive jurisdiction of the courts of the State of California for the enforcement of this Agreement or any action arising out of or relating to this Agreement. This Agreement shall bind and be for the benefit of the parties hereto and their respective successors and assigns.
16) Privacy.
(a) Provider shall exercise reasonable commercial efforts to make the Service secure. Provider shall not make Customer's passwords available to anyone who is not (i) an authorized agent or employee of Provider or (ii) a list administrator who has been so designated to Provider by Customer pursuant to Paragraph 13 ("Notices").
(b) Provider acknowledges that the subscriber lists provided to Provider by Customer in connection with this Agreement are the property of Customer. Unless Provider receives specific instructions from Customer to the contrary, Provider will not sell, license, share, transfer or otherwise disclose Customer's subscriber lists or Customer's list administrator's login information to any third party except as otherwise specifically provided in this Agreement or as required by law or a court order. The subscriber addresses contained in the mailing list shall be provided to Customer, free of charge, upon termination of this agreement. Any archives and/or backups can also be provided to Customer, at Customer's expense, in the medium requested, at the rate of $125.00 USD per hour, with a one-hour minimum, and to be billed in quarter hour increments thereafter.
(c) Provider may access Customer's membership lists in order to unsubscribe a member who has sent to Provider a request to that it do so or a complaint to the effect that such member is unable or unwilling to unsubscribe themselves, or if such member violates the rules or the terms of this Agreement.
17) Assignment. Customer shall not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Provider, which consent shall not be unreasonably withheld.
18) Arbitration. It is the intent of Provider to provide reasonable and fair Service to Customer in return for the consideration mentioned previously. In the event that a dispute arises between Customer and Provider, both parties agree to use a mutually acceptable arbitration service, based in San Diego, California, to resolve their dispute before other measures are undertaken.
19) Miscellaneous. Any cause of action Customer may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. In any proceeding to enforce the terms of this Agreement, the party prevailing shall be entitled to recover all of its expenses, including, without limitation, reasonable attorneys' fees. This Agreement may be executed in separate counterparts including facsimile copies, each of which shall be deemed an original, and all of which shall be deemed one and the same instrument and legally binding upon the parties. This Agreement, including Exhibits A and B, constitutes the entire agreement between Customer and Provider with respect to the Service. This Agreement may only be amended in a written agreement executed by authorized representatives of both parties hereto.
Agreed to and signed by both parties on ________________________.
