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Service Agreement

This Service Agreement for Data Storage and Transfer (Agreement) is between West Fifth Information Services, Inc. (West Fifth) of 432 Frederick Ave., South Plainfield, NJ 07080, and the party specified in the application/ordering form (Customer).

WHEREAS, West Fifth is an information provider connected to the Internet.  West Fifth offers data storage and transfer services over the Internet through access to its collection of computer and network systems, hereinafter collectively referred to as Web Servers,

WHEREAS, Customer seeks to utilize West Fifth's services for Customer's own purposes;

WHEREAS, the parties acknowledge that the Internet is neither owned nor controlled by any one entity; as a result, West Fifth expressly disclaims any and all representations, warranties or guaranties that any given reader shall be able to access West Fifth's server at any given time.  West Fifth represents that it shall make every good faith effort to ensure that its Web Servers are available to as many viewers as possible and with as minimal interruption of service as possible; nevertheless, West Fifth cannot and does not warrant that the West Fifth Web Servers are free of errors and inaccuracies, that use of West Fifth's Web Servers will be satisfactory or uninterrupted or that the results obtained from such use will be adequate for the purposes intended by Customer.

WHEREAS, the signatory for the Customer expressly warrants that he/she has authority to enter into this Agreement on behalf of the Customer;

NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

I.Terms and Fees:

  1. The term of this Agreement is for three (3) months. The initial term of this Agreement begins upon commencement of service.
  2. Customer hereby retains West Fifth to provide the data storage and transfer services over the Internet through access to West Fifth's Web Servers.  In exchange for these services, Customer shall pay in consideration therefor the fees equal to the service type applied for by the Customer. The fees for the first three (3) months of service plus any non-refundable setup charges, if any, shall be due upon receipt of Agreement.
  3. This Agreement shall continue in force for 3 months from and after the date hereof, and shall automatically renew for successive three (3) month terms, unless terminated as provided in paragraph VI of this agreement.

II.Responsibility and Control:

  1. Customer shall inspect and monitor Customer's own collection of text, files, graphics, and other assorted electronic information placed on West Fifth's Web Servers by the Customer, collectively referred to as their Webspace, weekly (or more frequently at Customer's option) to ensure that no material therein is in violation of paragraph IV-Prohibited Uses.
  2. Customer shall be solely responsible for the handling, processing or filling any customer orders generated by Customer's Webspace, if any, and for handling customer inquiries and/or complaints arising therefrom.  West Fifth shall not be liable for any taxes or other fees to be paid in accordance with or related to the handling, processing or filling of customer orders or the sales generated from Customer's Webspace. Customer agrees to take full responsibility for all taxes and fees of any nature associated with such products sold.
  3. West Fifth recognizes that Customer may use West Fifth's Web Servers to provide services to Third Parties, such as additional users or valued-added resold accounts.  Customer shall be solely responsible for the content, usage of, and actions by any person or entity accessing West Fifth's Web Servers through Agreement between West Fifth and Customer.

III.Material and Products:

  1. Customer will provide West Fifth with material and data in a condition that is "server-ready," which is in a form requiring no additional manipulation on the part of West Fifth.  West Fifth shall make no effort to validate this information for content, correctness or usability.
  2. Use of West Fifth's service requires a certain level of knowledge in the use of Internet languages, protocols, and software.  This level of knowledge varies depending on the anticipated use and desired content of Customer's Webspace by the Customer.  The following examples are offered:  a) Web Publishing, which requires knowledge of HTML, properly locating and linking documents, FTPing Webspace contents, graphics, text, sound files, image mapping, etc.  b) CGI Scripting, which requires a knowledge of the UNIX or Windows Server environment, TAR & GUNZIP commands, perl, shell scripts, permissions, etc.  The Customer agrees that he/she has the necessary knowledge to create Customer's Webspace.  Customer agrees that it is not the responsibility of West Fifth to provide this knowledge or customer support outside of the service defined in this Agreement.
  3. West Fifth will exercise no control whatsoever over the content of the information passing through the network.  West Fifth makes no warranties or representations of any kind, whether expressed or implied for the service it is providing, including but not limited to implied warranties of merchantability and fitness for a particular purpose.  West Fifth will not be responsible for any damages that may be suffered by the Customer, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the Customer.  Use of any information obtained by way of West Fifth is at the Customer's own risk, and West Fifth specifically denies any responsibility for the accuracy or quality of information obtained through its services.  Connection speed represents the speed of a connection to West Fifth's server and does not represent guarantees of available end-to-end bandwidth.  West Fifth specifically denies any responsibilities for any damages arising as a consequence of such unavailability.  In the event that Customer material is not "server-ready" West Fifth may, at its option and at any time, reject this material, including but not limited to after it has been put on West Fifth's Server.  West Fifth agrees to notify the Customer immediately of its refusal of the material and afford Customer the opportunity to amend or modify the material to satisfy the needs and/or requirements of West Fifth.  If the Customer fails to modify the material, as directed by West Fifth, within a reasonable period of time, which shall be determined between the parties themselves, the Agreement shall be deemed to be terminated.

IV.Prohibited Uses:

  1. Customer shall not use, nor permit the use of by any person, Customer's Webspace or any part thereof, including any links to other webspace, (a) to transmit any obscene communication (i) with intent to annoy another person or (ii) to any person under 18; or (b) to send to, or display any communication which depicts or describes nudity, sexual or excretory activities or organs.
  2. Customer shall not use, nor permit the use of or by any person, Customer's Webspace or any part thereof, including any links to other Webspace, in violation of any patent, trademark, service mark, or copyright laws.
  3. Customer shall not use, nor permit the use of or by any person, Customer's Webspace or any part thereof, including any links to other Webspace, to transmit unsolicited advertisements of services or products, a practice also known as "spamming".
  4. Customer shall not use, nor permit the use of or by any person, Customer's Webspace or any part thereof, including any links to other Webspace, in violation of West Fifth's Acceptable Use Policy.  Said acceptable use policy is incorporated into this Agreement as if fully set forth herein and can be accessed and viewed at http://www.westfifth.com/acceptable_use.php.

V.Hardware, Equipment & Software:

Customer is responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access West Fifth.  West Fifth makes no representations, warranties or assurances that the Customer's equipment will be compatible with the West Fifth service.

VI.Termination:

This Agreement may be terminated by either party, without cause, by giving the other party 30 days written notice.  Notice must be faxed or mailed.  West Fifth will not accept terminations by electronic mail or over the telephone.

VII.Limited Liability:

  1. Customer expressly agrees that use of West Fifth's Web Server is at Customer's sole risk.  Neither West Fifth, its employees, affiliates, agents, third party information providers, merchants licensors or the like, warrant that West Fifth's Web Server service will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the Server service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the West Fifth Server service, unless otherwise expressly stated in this Agreement.
  2. Under no circumstances, including negligence, shall West Fifth, its offices, agents or any one else involved in creating, producing or distributing West Fifth's Server service be liable for any claims, causes of action, direct, indirect, incidental, special, or consequential, trebled, or punitive damages that result or have alleged to have resulted from the use of or inability to use the West Fifth Server service; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to West Fifth's records, programs or services.  Customer hereby acknowledges that this paragraph shall apply to all content on West Fifth's Server service.
  3. Notwithstanding the above, Customer's exclusive remedies for all damages, losses from any and all claims, or costs causes of actions whether in contract, quasi-contract, statutory, tort including negligence, or otherwise, shall not exceed the aggregate dollar amount which Customer paid during the term of this Agreement.

VIII.Indemnification:

Customer agrees that Customer shall defend, indemnify, save and hold West Fifth harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees, compensatory damages, punitive damages, trebled damages, and statutory damages (hereinafter "Liabilities") asserted against West Fifth, its agents, its customers, servants officers and employees, that may arise or result from any service provided or performed or agreed to be performed by Customer, its agents, employees or assigns or any product distributed, offered or sold by Customer, its agents, employees or assigns.

IX.Default:

  1. As used herein, "Default" shall mean any of the following: (a) Customer's failure to pay the fees required to be paid to West Fifth pursuant to this Agreement; (b) Customer's breach of paragraph IV-Prohibited Uses above; (c) Any breach by Customer of any other provision of this Agreement or of any statute or regulation.
  2. Upon any Default, in addition to any and all other remedies available under law to West Fifth, West Fifth may at its option restrict access by Customer and/or the public to all or any part of Customer's Webspace immediately upon Default and without notice to customer.  Additionally, West Fifth may terminate this Agreement and any service under this Agreement at any time, without notice to Customer.   Furthermore, West Fifth may, but is not required to, ask Customer to cure such default upon terms that West Fifth deems to be acceptable, which may include but is not limited to, written assurance provided by Customer that such Default will not recur and the charging of a reinstatement fee to be determined by West Fifth.

X.System Resources & Bandwidth Restrictions:

Customer acknowledges that West Fifth provides shared access services.  West Fifth reserves the right to limit the system resources allocated to and bandwidth utilitized by the Customer's Webspace to ensure system integrity and network stability, which may include restricting customers access and use of their web space or programs within their web space.

XI.Choice of Law and Forum:

This Agreement shall be governed by and construed in accordance with New Jersey law.  Any and all claims concerning this Agreement or the Services provided for in this Agreement shall be brought in the State or Superior Courts of Middlesex County, New Jersey.  The parties to this Agreement expressly consent to submit to the jurisdiction of the State or Superior Courts of Middlesex County, New Jersey and waive any personal jurisdiction or venue defenses concerning said forum.

XII.Transfer:

Customer may not transfer this agreement without the written consent of West Fifth.

As of: July 23, 2003.  Supersedes all prior contracts and service agreements.

© 2003 - West Fifth Information Services Inc.