The Service Agreement, and any supplemental Service Order(s) define the scope of Services and fees charged to Client and are hereby attached and incorporated by reference to this Agreement. Client and 3 Square Associates Ltd agree to perform the following:
Term of Agreement
The term of an agreement is the period of time the client agrees to pay for services. Cancellation before the end of the term constitutes a forfeiture fees for the term of service. All service order are renewed upon payment of fees for each subsequent term. Agreement Terms are as follows:
Hosting - Monthly or Annual
Colocation - Monthly
Dedicated Server - Monthly
Payment of Fees:
Subject to credit approval, the Client will pay for services on a monthly or annual basis as indicated by the Client. Thereafter the Client will pay for services on a monthly or annual basis as indicated by the Client. The Client will be billed on an advanced monthly basis with payment due to 3 Square Associates Ltd in US funds thirty (30) day's from the date of invoice. In the event the Client fails to remit payment a late fee of $10 or 1.5% of the outstanding balance, whichever is greater, will be due. 3 Square Associates Ltd may terminate service at any time and for any reason including for non-payment of fees. Client agrees to pay all costs of collection including court costs and attorneys fees. Failure to remit payment when due for a concurrent period of six billing cycles results in the creation of an equitable lien of which 3 Square Associates Ltd is the primary creditor in and on all Client property, physical and intangible on 3 Square Associates Ltd premises.
All domain names remain the responsibility of the client. 3 Square Associates Ltd shall not be responsible for registering or renewal of domain names or any subsequent effect on web site or database availability due to an expired domain name, failure to register or re-register by the client or any other domain related issue. 3 Square Associates Ltd shall not be responsible for dealing with enquiries, support or technical problems arsing from and the responsibility of a third party.
All equipment on 3 Square Associates Ltd's premises is the sole property of 3 Square Associates Ltd unless provided to 3 Square Associates Ltd by the client. 3 Square Associates Ltd is solely responsible for the ongoing maintenience and management of its hardware and software. Upgrades, downgrades, enhancements or modifiactions of any kind to 3 Square Associates Ltd's equipment or software will be made at the sole discretion of 3 Square Associates Ltd and/or its authorized agents.
The Client is solely responsible for maintenance, insurance, and preservation of Client equipment, property and data on 3 Square Associates Ltd premises. Dedicated, lease or rental equipment is the sole property of 3 Square Associates Ltd. All equipment and software upgrades to dedicated, lease or rental equipment will be made at 3 Square Associates Ltd's discretion and may be subject to additional fees. Equipment and hardware upgrades will occur no more than once every two years unless additional provisions are made with Client. Software upgrades that require an additional purchase or licensing fee will occur no more than once per year.
Client represents and warrants that: (i) Client's web or Internet site or address including without limitation the products and services offered therein, will not infringe on the copyrights, trademarks, service marks, patents, or other intellectual property or personal rights held by any third party; (ii) Client has all power and authority to enter into this Agreement and has duly and validly authorized this Agreement; (iii) Client shall conduct itself responsibly and in accordance with the Federal and State laws, rules, and regulations that apply to the web and Internet in all jurisdictions that Client appears.
CLIENT ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT ALL WARRANTIES WHETHER EXRESS OR IMPLIED OR STATUTORY AND ALL OBLIGATIONS AND REPRESENTATIONS AS TO PERFORMANCE INCLUDING ALL WARRANTIES THAT MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OR TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY 3 Square Associates Ltd.
CLIENT ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL 3 Square Associates Ltd OR ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, TECHNOLOGY PARTNERS, AFFILIATES, OR AGENTS BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR INDIRECT DAMAGES, OR FOR THE LOSS OF ANTICIPATED PROFITS TO CLIENT, OR ITS CUSTOMERS, OR ANY OTHER PERSON UNDER ANY PROVISION OF THIS AGREEMENT.
(a) Definition. "Confidential Information" means all non-public confidential and proprietary information that the disclosing party identifies in writing as confidential.
(b) Nondisclosure. 3 Square Associates Ltd agrees (a) to hold the disclosing party's Confidential Information in strict confidence, (b) not to disclose such Confidential Information to any third party, and (c) not to use the disclosing party's Confidential Information for any purpose other than to further this Agreement. 3 Square Associates Ltd may disclose the other party's Confidential Information to its responsible employees with a bona fide need to know such information, but only to the extent necessary to carry out this Agreement. 3 Square Associates Ltd agrees to instruct all such employees not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the disclosing party.
(c) Exceptions. Notwithstanding the foregoing, Confidential Information will not include information that (i) is now, or hereafter becomes, through no act or failure to act on the part of 3 Square Associates Ltd, generally known or available to the public; (ii) was acquired by 3 Square Associates Ltd before receiving such information from the disclosing party and without restriction as to use or disclosure; (iii) is hereafter rightfully furnished to 3 Square Associates Ltd by a third party, without restriction as to use or disclosure; (iv) is information that 3 Square Associates Ltd can document was independently developed by itself without use of the disclosing party's Confidential Information; (v) is required to be disclosed by law, provided that 3 Square Associates Ltd uses reasonable efforts to give the disclosing party reasonable notice of such required disclosure and to limit the scope of material disclosed; or (vi) is disclosed with the prior written consent of the disclosing party.
(d) Return. Upon the disclosing party's request, 3 Square Associates Ltd will promptly return to the disclosing party all tangible items containing or consisting of the disclosing party's Confidential Information.
(e) Injunctive Relief. Each party acknowledges that all of the disclosing party's Confidential Information is owned solely by the disclosing party (or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury to the disclosing party, the degree of which may be difficult to ascertain. Accordingly, each party agrees that the disclosing party will have the right to obtain an immediate injunction enjoining any breach of this section.
Acceptable Use Policy:
During the period that 3 Square Associates Ltd provides Services Client shall not distribute on the Web site or over the system any content that (a) violates intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law statute, statute ordinance or regulation, including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination, unsolicited e-mail (known as "spam"), postings that violate Usenet newsgroup charters or false advertising; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere, surreptitiously intercept or expropriate any system, data or personal information; (e) any activities deemed to interfere or be disruptive to 3 Square Associates Ltd systems or the systems of its clients or deemed by 3 Square Associates Ltd not be of the general profile of web hosting and database hosting. Any alleged or actual violation of the above may result in immediate termination of services.
Limited Performance Warranty:
3 Square Associates Ltd warrants that it will perform its services in a competent and workmanlike manner and to ensure the technological aspects operate substantially according to the agreed to specifications. 3 Square Associates Ltd does not warrant that it will be able to correct all reported defects or that services will be error free. 3 Square Associates Ltd makes no warranty regarding features or services provided by third parties or web "browser" software that are provided "as is" and "as available."
Client will defend, indemnify, and hold harmless 3 Square Associates Ltd, and their respective directors, officers, technology partners, employees, affiliates, and agents from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses) arising from any provision or claim of this Agreement. Without limiting the generality of the foregoing, Client shall indemnify and hold harmless 3 Square Associates Ltd against liabilities arising from the following: (i) the products or services provided by Client in connection with 3 Square Associates Ltd; (ii) any actual or alleged defamatory or illegal material provided by Client for placement on, or in connection with 3 Square Associates Ltd; and (iii) any material provided by Client on, or in connection with 3 Square Associates Ltd, that actually or allegedly infringes on the intellectual property or personal rights of a third party. Each party agrees to (i) promptly notify the other party in writing of any indemnifiable claim and give the other party the opportunity to defend or negotiate a settlement of any such claim at the party's sole expense, and (ii) cooperate fully with the other party in defending or settling such claim; 3 Square Associates Ltd reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by FS hereunder.
Client agrees that 3 Square Associates Ltd shall not be liable for damages of any kind arising from Acts of God or any condition beyond its control.
Term and Termination:
This Agreement has a term as specified on your contract and is subject to automatic renewal periods equal to the contracted period. Client may terminate this agreement by thirty day written notice prior to contract expiration to 3 Square Associates Ltd. Notice is accepted the day of receipt by either US mail or e-mail to info@3 Square Associates Ltd. At no time shall fees be prorated for unused service. 3 Square Associates Ltd does not refund or credit client for unused, cancelled service.
This Agreement will bind and inure to the benefit of each party's permitted successor and assigns only if written notice of assignment is given to the non assigning party.
The entire Agreement consists of the Services Agreement and the Insertion Order and is governed by the laws of the state of California, United States. The Agreement supersedes all prior proposals and understandings, oral or written and is the entire understanding between the parties. Any dispute between the parties shall be settled by binding arbitration in a proceeding conducted in Orange County, California. The rules of the arbitration shall include the discovery provisions of the Revised Code of California and the rules of the American Arbitration Association. The arbiter shall have the power to hear and decide all issues regarding discovery. This Agreement may be modified only in writing executed by both parties, provided that upon execution of additional Insertion Orders, the terms of the Services Agreement remain in full effect.