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CUSTOMER
AGREEMENT
With
the acceptance of Commerce Blvd's services, the customer agrees to the
following, which shall apply during the term of account activity:
1.
DEFINITIONS:
A.
"Plans" means proposals for offering various services to be
provided by Commerce Blvd, as listed online at: http://www.commerceblvd.com/hosting/hosting.html
"Plans" does not include the use of Commerce Blvd's trademarks.
B. "Customer" means an end user who is utilizing services
provided by CommerceBlvd.com.
C. "Commerce Blvd" refers to CommerceBlvd.com.
2.
PRICES
A. All prices for Plans provided by Commerce Blvd to Customer are in US
dollars.
B. Customer shall be responsible for paying all taxes of any nature
which become due with regard to Commerce Blvd services, except for taxes
on Commerce Blvd's income, irrespective of which party may be
responsible for reporting or collecting such taxes.
3.
ORDER ACCEPTANCE, PAYMENT
A. All orders are subject to acceptance by Commerce Blvd. An order
will be deemed accepted by Commerce Blvd when written confirmation of
the order is sent to Customer. Commerce Blvd may refuse to accept any
order, or delay acceptance pending fulfillment of conditions Commerce Blvd
may choose to impose. Such refusal or such conditions may not be
unreasonable, however, and Commerce Blvd agrees to provide Customer with
reasonable notice via Email or fax of any intent to delay or decline the
acceptance of any order.
B. PAYMENT AND TERMS:
Payment shall be made in US dollars to Commerce Blvd into the account
designated by Commerce Blvd, or as may otherwise be agreed in writing by
the parties. Payments are due upon presentation of invoice. If due to
bank charges, transfer fees, or the like, Commerce Blvd should receive
less than its invoice amount, Commerce Blvd will re-invoice Customer for
the shortfall. Should payment in full of any invoice (aside from
such shortfalls) not be received by Commerce Blvd within thirty (30)
days after presentation, Commerce Blvd will impose a debt service charge
amounting to one percent (1%) of the overdue balance for each month or
fraction thereof the overdue amount remains unpaid. In the event
that any amount remains unpaid thirty (30) days after presentation of
invoice, Commerce Blvd may discontinue, withhold, or suspend services to
Customer and/or its customer(s) to whom such unpaid amounts relate.
Customer recognizes the responsibility to detect additional use of
services and accept charges based on any services utilized in excess of
the Customer’s original account order or current account allocations.
It
is Customer's responsibility to recognize payment due dates and maintain
proper payment by said dates. Commerce Blvd retains the right to
discontinue, withhold, or suspend services for any account that is in
past due status. If an account is not properly paid on the recognized
account renewal date, Commerce Blvd may impose additional fees to
resolve, reactivate, or retrieve Customer's access to account
information.
ACCOUNT
RENEWAL AND DISCONTINUATION:
By normal procedure, Commerce Blvd will automatically renew an account
with the latest contract terms and plan allocations. If a credit card is
listed on file for the Customer, that card will be charged accordingly
for renewal, unless the Customer contacts Commerce Blvd with alternative
payment information before the payment deadline. Customer will
receive notification of the renewal date by email to the address listed
on file, or by regular mail if previously requested by the Customer.
It is the Customer's responsibility to inform Commerce Blvd of updates
to contact information, including email addresses.
Customer
is also responsible to notify Commerce Blvd in writing of account
discontinuation thirty days (30) prior to a renewal deadline to avoid
automatic renewal for all regular web hosting services, and sixty (60)
days prior to renewal date for all E-commerce web hosting services. If
no written cancellation notice is received before the deadline as
required by Commerce Blvd, Customer will remain responsible for the next
billing period.
If
Customer makes a request to discontinue the account within an already
active contract period, the charges for that period will not be
refunded. The only event in which funds will be reimbursed is that when Commerce Blvd
has been notified in writing by Customer before the 30th day
of a new account’s activity. (There will be no reimbursement for
E-commerce accounts, due to the licensing agreement.)
DOWNGRADES,
UPGRADES, AND SERVICE CHANGES
Requests to change service may require notice in advance of renewal
billing date. Commerce Blvd will typically handle such requests in
conjunction with cancellation policies. Fees may be assessed to
perform downgrades, usually at a rate of $15.00 per account. Fees
for upgrades are typically charged by calculating the difference between
the former and new plan setup costs. Upgrades to more extensive
solutions such as dedicated servers may require a more substantial setup
fee. Additions of add-on features to a plan may also require a setup
fee.
REFUNDS
If customer requests to cancel a Web hosting account (non-Ecommerce
only) within the first 30 days of the account's activity, they may
choose to take advantage of the "30 day money back guarantee
offer". This offer will refund only web hosting charges paid at the
time of purchase, minus any setup fees or domain name registration fees.
If a new domain name is acquired through Commerce Blvd at any time
during the account's activity, the customer will be held responsible for
domain name registration charges of at minimum $15.50 per year; these
domain registration costs are non-refundable. Customer may continue to
own the domain name(s) until the specified expiry date(s).
4. DUTIES OF Commerce Blvd:
Commerce Blvd will acquire, on request, a new Internet Domain Name on
behalf of the Customer. In such case, the Customer hereby must waive in
writing prior to acquisition of said domain name, any and all claims
which it may have against Commerce Blvd for any loss, damage, claim or
expense arising out of, or in relation 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 Commerce Blvd
for any reason. Any costs of Commerce Blvd in obtaining or maintaining a
domain name for Customer or its customers shall be immediately
reimbursed to Commerce Blvd upon invoice from Commerce Blvd to Customer.
5. RULES AND REGULATIONS
Commerce Blvd may impose reasonable rules and regulations regarding the
use of its services from time to time. Customer shall impose such rules
and regulations on its customers to the extent necessary to ensure
compliance.
6. LIMITATION OF Commerce Blvd’s OBLIGATIONS AND LIABILITY
A. Commerce Blvd will utilize its best efforts to maintain acceptable
performance of services contracted for services, but Commerce Blvd makes
absolutely no warranties whatsoever, express or implied, including
warranty of merchantability or fitness for a particular purpose. Commerce Blvd
cannot guarantee continuous service, service at any particular time, or
integrity of data stored or transmitted via its system or via the
Internet. Commerce Blvd will not be liable for the inadvertent
disclosure of, or corruption or erasure of, data transmitted or received
or stored on its system. Commerce Blvd shall not be liable to Customer
or any of its customers for any claims or damages which may be suffered
by Customer or its customers, 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 Commerce Blvd.
B.
Commerce Blvd may discontinue servicing any Plan, or may require
fulfillment of conditions Commerce Blvd may choose to impose as a
prerequisite for continuing to service any Plan. Such discontinuation or
requirement may not be unreasonable, however, and Commerce Blvd agrees
to provide Customer with reasonable notice via Email and fax of any such
intent to discontinue or impose conditions.
C.
Services provided by Commerce Blvd to Customer shall be deemed accepted
for all purposes thirty days after presentation of invoice for such
services, if no written claim or objection regarding such services has
been received by Commerce Blvd within the 30-day period. No claim
related to such accepted services shall be raised.
D.
Commerce Blvd’s liability to Customer, and any end user of any Plan or
other Commerce Blvd services is limited to the amount paid to and
received by Commerce Blvd for services not accepted. In no event shall Commerce Blvd
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 Commerce Blvd has
been advised of the possibility of such damage.
E.
Customer will take all necessary measures to preclude Commerce Blvd from
being made a party to any lawsuit or claim regarding Commerce Blvd
services provided to any Customer or end user. Customer hereby agrees to
indemnify and hold harmless Commerce Blvd from any and all claims of
whatever nature brought by any of Customer's customers against Commerce Blvd
in excess of the remedy set forth in paragraph 6(D) .
7. PROPERTY RIGHTS
Commerce Blvd owns all right, title and interest in Commerce Blvd’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 Commerce Blvd'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 in the Territory.
8. CONFIDENTIALITY
Customer acknowledges that by reason of its relationship with Commerce Blvd
hereunder, it may have access to certain information and materials
relating to Commerce Blvd’s business, plans, customers, software
technology, and marketing strategies that is confidential and of
substantial value to Commerce Blvd, 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 Commerce Blvd. 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 Commerce Blvd 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, Commerce Blvd shall be
entitled to injunctive relief, which relief shall not be contested by
Customer.
9. RELATIONSHIP OF THE PARTIES
The relationship between Commerce Blvd 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 Commerce Blvd, or in any other way legally bind Commerce Blvd
in any fashion, nor shall Customer be authorized to make any
representations about Commerce Blvd or its services other than to set
forth Commerce Blvd' responsibilities as outlined in this agreement.
10. DISPUTES
The parties shall attempt to resolve all disputes arising out of this
agreement in a spirit of cooperation without formal proceedings. Any
dispute which cannot be so resolved (other than the collection of money
due on unpaid invoices) and other than the injunctive relief referred to
in paragraph 10 shall be subject to arbitration upon written demand of
either party. Arbitration shall take place in Austin, Texas, or at
another location if the parties so agree. The arbitration shall take
place before an arbitration panel chosen as follows: The parties shall
each choose an arbitrator, and the two arbitrators shall choose a third
arbitrator and determine the third arbitrator's compensation. Each party
shall have one veto over the choice of the third arbitrator. The three
arbitrators shall schedule an informal proceeding, hear the arguments,
and decide the matter by secret majority vote. Unless the arbitrators
decide otherwise, each party shall pay the costs of its own arbitrator,
and shall pay half of the other costs of the arbitration proceeding.
Each party shall have the right to have the proceedings transcribed. The
arbitrators shall not have the authority to award punitive damages or
any other form of relief not contemplated in the contract. The majority
of arbitrators shall render a written opinion setting forth the basis on
which they arrived at the decision regarding each issue submitted to
arbitration; the dissenting arbitrator, if any, shall not issue a
dissenting opinion. Regarding each issue submitted to arbitration, the
decision shall be final and binding only to the extent it is accompanied
by a written explanation of the basis upon which it was arrived at.
Judgment upon the award, if any, rendered by the arbitrators may be
entered in any court having jurisdiction thereof. Should any legal
action permissible under this agreement be instituted to enforce
the terms and conditions of this agreement, in particular the right to
collect money due on unpaid invoices, the prevailing party shall be
entitled to recover reasonable attorney's fees and expenses incurred at
both the trial and appellate levels.
11. TERM, TERMINATION:
This agreement shall run until the end of the current calendar year. It
shall automatically be renewed on an annual basis unless terminated in
one of the following ways:
A.
By either party, by notifying the other in writing by November 30 of any
given year that this agreement will not be renewed.
B.
By Commerce Blvd, upon thirty (30) days' written notice, if Customer
breaches any material and substantial provision of this agreement and
has not cured by the end of the 30 days.
C.
By Commerce Blvd, upon sixty (60) days' written notice, if
1. Commerce Blvd provides Customer with written
notice of the specific reasons for its belief in this regard, and
2. Customer has not cured by the end of the 60 days.
D.
By Commerce Blvd, immediately upon giving written notice to Customer, in
the event that
1. Any bank draft or check delivered by Customer to Commerce Blvd
in payment for Products is returned unpaid and Customer fails to remedy
such nonpayment within five business days;
2. Customer becomes more than sixty (30) days in
arrears in payment of its account with Commerce Blvd;
3. There are instituted bankruptcy or insolvency
proceedings against Customer, which are not vacated within sixty (60)
days from the date of filing;
4. Customer institutes voluntary bankruptcy or
insolvency proceedings, or otherwise admits insolvency; or
5. Customer makes an assignment of all or part of its
assets for the benefit of creditors.
E.
By Commerce Blvd immediately, if Customer attempts to assign all or any
part of this Agreement without Commerce Blvd' prior written approval;
F.
By Commerce Blvd immediately, if Customer fails to cause Commerce Blvd
to be informed in writing immediately on the happening of any event
specified in this section;
G.
By Customer, immediately upon giving written notice to Commerce Blvd, if
1. There are instituted bankruptcy or insolvency
proceedings against Commerce Blvd, which are not vacated within sixty
(60) days from the date of filing;
2. Commerce Blvd institutes voluntary bankruptcy or
insolvency proceedings, or otherwise admits insolvency;
3. Commerce Blvd makes an assignment of all or part
of its assets for the benefit of creditors; or
4. Commerce Blvd fails to cause Customer to be
informed in writing immediately on the happening of any event specified
in this section. The provisions of this paragraph survive any
termination of this agreement.
12. NONASSIGNABILITY
Customer's rights and obligations under this agreement may not be
transferred or assigned directly or indirectly without the prior written
consent of Commerce Blvd, which consent shall not be unreasonably
refused.
13. PARTIAL INVALIDITY
If any provision of this agreement is held to be invalid by a court of
competent jurisdiction, then the remaining provisions shall nevertheless
remain in full force and effect. Commerce Blvd and Customer agree to
renegotiate in good faith any term held invalid and to be bound by
mutually agreed substitute provision.
14. APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement takes effect when accepted by Commerce Blvd in Texas. It
is to be governed by and construed under the laws of the State of Texas
and the United States of America. The federal and state courts of the
State of Texas shall have exclusive jurisdiction to adjudicate any
non-arbitrary dispute arising out of this agreement. Customer hereby
expressly consents to
(1) the jurisdiction of the courts of Texas 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 Commerce Blvd. 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.
15. NOTICES
Except with respect to service of process as set forth in paragraph, all
notices may be sent by email, fax, or express mail to the email address,
fax number, or mailing address most recently provided and will be
effective upon transmission. Evidence of successful transmission shall
be retained.
16. ENTIRE AGREEMENT; MODIFICATIONS
This agreement between Commerce Blvd and Customer sets forth the entire
agreement and understanding between the parties and merges all prior
discussion between them. Commerce Blvd 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 Commerce Blvd
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.
By
submitting an order request and/or by using our services, the Customer
accepts these terms.
AMMENDMENT
1: TERMS FOR APPSITE HOSTING ACCOUNT HOLDERS
For
customers holding a Shared Web Hosting or E-commerce Shared Web Hosting
account that has migrated to us from Appsite Hosting, the following
terms apply. The terms below do NOT supersede terms for other customers
who are not using an account that was migrated from Appsite Hosting.
By
utilizing CommerceBlvd.com web hosting services, all customers must
agree to these terms. Although the billing procedures described
here may differ from the typical procedures outlined in previous clauses
of this agreement, all other terms of this agreement will remain
imposed.
(AMMENDMENT
TO B. PAYMENT AND TERMS):
The following terms supersede terms described in “B. PAYMENT AND
TERMS” for AppSite Hosting account holders only.
B.1.
Term. This Agreement will be for an "Initial Term" of either:
(a) 30 days if you register for Shared Hosting Services, (b) 12 months
from the order date if otherwise chosen by you in the order process by
selecting 1-year service and billing terms. This Agreement will be
automatically renewed (the "Renewal Term") at the end of the
Initial Term for the same period as the Initial Term, unless you provide
Commerce Blvd with notice of termination either: (a) at least 7 days
before the end of the Initial Term or the Renewal Term, whichever is
then applicable, if you are receiving Shared Hosting Services on a
monthly billing option, or (b) at least 30 days before the end of the
Initial Term or Renewal Term, whichever is then applicable, if you are
receiving Shared Hosting Services under 1-year billing option or have
pre-paid for a 1-year period of Shared Hosting Services. You must
provide Commerce Blvd with your notice of termination by contacting the Commerce Blvd
Accounting Department in writing. Written notice will be accepted by
email to accounting@CommerceBlvd.com,
or by Mail to Commerce Blvd’s office. Any notice of termination
will be effective upon Commerce Blvd's receipt of notice, with reference
to the cancellation notice policies outlined in this agreement. Receipt
of a cancellation notice will be confirmed with a written reply by the Commerce Blvd
Accounting Department.
B.2
Termination Policy. If you terminate the Services before the end of the
Initial Term or the Renewal Term, whichever is then applicable: (a) Commerce Blvd
will not refund to you any fees paid in advance of termination, and (b)
you will be required to pay the lesser of 3 times the standard monthly
charge or 100% of Commerce Blvd's standard monthly charge for each month
remaining in the term, unless otherwise expressly provided in this
Agreement. But if you have pre-paid for a 1-year period of Shared
Hosting Services, you are entitled to a pro-rata refund of the remaining
months in the annual period, calculated at the standard monthly rate for
the Shared Hosting Services, not the discounted annual rate. You must
submit your termination request to Commerce Blvd in the manner described
in Section B.1. Commerce Blvd may terminate this Agreement at any time
and for any reason by providing to you 30 days' prior written notice of
termination. If Commerce Blvd terminates this Agreement, Commerce Blvd
will refund to you the pro-rata portion of pre-paid fees attributable to
Services not yet rendered as of the termination date, unless otherwise
expressly provided in this Agreement. (No refund is offered for
customers who abuse Accepted Uses Policies or who abuse other terms in
this agreement.)
By
submitting an order request and/or by using our services, the Customer
accepts these terms.
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