WEB SPACE RENTAL AGREEMENT (“Agreement”) between Gotham Web Service and Customer are provided on the following terms and conditions:
1. The Gotham Web Space Rental Service (the “Service”) consists of services provided to allow the Customer to offer content on the Internet. These services include space on Gotham Web’s Internet server to store HTML and related code and multimedia documents and files, the ability to maintain these pages through one FTP (“File Transfer Protocol”) account, and email accounts. The terms and conditions of this agreement and any rules and prices published on Gotham Web’s site (http://www.gothamweb.com) constitute the entire and only agreement (collectively, the “Service Agreement”) between Gotham Web Services, Inc and the Customer (hereby defined as one who has an account with Gotham Web for the Service, including Customer’s designated users with respect to the Service) and supersede all other communications and agreements with regard to the subject matter hereof.
2. Upon notice provided in written, faxed or emailed form to the Customer, Gotham Web may modify this Service Agreement or prices, and may discontinue or revise any or all aspects of the Service in its sole discretion without prior notice.
3. Customer agrees to indemnify Gotham Web against any liability for any and all use of Customer’s account and related third party services. Furthermore, Customer agrees to indemnify and hold Gotham Web harmless from any claims and expenses, including reasonable attorney’s fees, related to Customer’s violation of the Service Agreement or Customer’s direct or indirect damage to another party.
4. Customer is responsible for and must provide all telephone and other equipment and services necessary to maintain customer’s account remotely through one FTP account.
5. CUSTOMER EXPRESSLY AGREES THAT USE OF GOTHAM WEB’S SERVICE IS AT CUSTOMER’S SOLE RISK. NEITHER GOTHAM WEB NOR ANY OF ITS INFORMATION PROVIDERS, LICENSERS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES GOTHAM WEB OR ANY OF ITS INFORMATION PROVIDERS, LICENSERS, EMPLOYEES, OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS DISTRIBUTED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS SERVICE AGREEMENT. NEITHER GOTHAM WEB NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE PROVISION OF THIS PARAGRAPH SHALL ALSO APPLY TO ALL THIRD PARTY CONTENT AND ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICE.
6. This Service Agreement is made in New York, and shall be governed by and construed in accordance with the laws of the United States of America and of the State of New York. Any cause of action of customer or its designated users with respect to the Service Agreement must be instituted within one year after the claim or cause of action has arisen or be barred.
7. Copyrighted material must not be placed on Customer’s account without the permission of the owner(s) or person(s) they specifically authorize. Only the owner(s) or such authorized person(s) may upload copyrighted material to the account.
8. Customer agrees not to publish on or over its account any information, software or other content which violates or infringes upon the rights of any others or which knowingly contravenes the laws of any jurisdiction in which such content is generally accessible.
9. Use of illegal or copyright material on any web page or other distribution mechanism used in conjunction with the Customer’s account, will result in termination of this Service Agreement. Illegal material is defined as any material not permitted under United States local, state or federal laws. If “illegal material” was submitted by a client of the Customer without Customer’s knowledge, this Service Agreement will remain in effect if the Customer removes the “illegal material.”
10. Any use of Gotham Web’s systems that disrupts the normal use of the system for other Gotham Web customers is considered to be abuse of Gotham Web services and is grounds for termination of this Service Agreement. Some examples of abuse include spawning dozens of processes, consuming large amounts of memory or CPU cycles for long periods of time, attempting to access other Customers’ account areas, or conducting provocative activities such as mass emailings which may result in retaliatory actions against Gotham Web’s systems.
11. Gotham Web Services has a zero tollerance for SPAM (unsolicited email advertising). Customers sending out unsolicited commercial email or advertising their site with use of unsolicted email will be subject to immediate account termination.
12. Depending upon the nature and severity of any abuses, the Customer may receive an E-mail warning detailing the nature of the abuse. If the abuse of services is not terminated within two (2) days, a certified letter will be sent to the customer formally requesting termination of the stated abuse. Customer then must terminate stated abuse within two (2) days, otherwise the Service Agreement will be terminated. Any reconnection of a terminated account will require a reconnection fee.
13. It is in Gotham Web’s sole discretion to terminate the Service Agreement immediately with written notification. Such written notification may be via email or via fax 15 days prior to the next billing period.
14. Customer shall pay the monthly Maintenance Fee, and any charge for additional services under the terms of this Service Agreement, upon receipt of invoice. Invoice may be sent by email or by letter. Customer may not withhold or “setoff” any amounts due hereunder. Gotham Web retains the right to withhold service without prejudice until all amounts determined delinquent are paid in full. Any late payment shall be subject to any costs of collection (including but not limited to legal fees).
15. Customers choosing to pay by credit card will have their card automatically charged between the 28th and the last day of the month.
Accounts past due will be disabled (including web, FTP and email services) and subject to a $15 late fee.
16. Any Customer whose services are terminated or suspended will be asked to pay a reconnection fee to restart the account.
17. There will be a $25.00 service charge for each returned check.
18. Legal notices sent to either party shall be effective when delivered by mail, transmitted by telecopier (“fax”) machine, one (1) day after being sent by overnight mail or “fax”, or two (2) days after being sent by first class mail postage prepaid to the address shown.
Gotham Web Services, Inc
P.O. Box 1188
Old Chelsea Station
New York, NY 10011
19. Customer retains the right to cancel use of Gotham Web’s Service through written faxed notification. Requests for cancellation must be received by Gotham Web Services, Inc 30 (thirty) days before the next billing date. All Gotham Web accounts must be paid in full before the cancellation transaction will be considered complete. Gotham Web Services will not issue a refund for unused time.
20. Gotham Web acknowledges and agrees that in the course of dealings with Customer, it may acquire information about Customer, its business activities and operations, its technical information and trade secrets, of a highly confidential and proprietary nature. Gotham Web agrees that title to all such information and related materials shall remain with the Customer. All applicable copyrights, trade secrets, patents and other intellectual and property rights in such information and related material are and remain in the property of the Customer. All other aspects of the information and related material, including without limitation, technologies, procedures, programs, methods of processing, all source code, conversions, enhancements, databases, templates, specific design and structure of individual programs and their interaction and unique programming techniques employed therein as well as screen formats shall remain the sole and exclusive property of the Customer and shall not in any way be sold, revealed, disclosed or otherwise communicated, directly of indirectly, by Gotham Web to any person, company or institution whatsoever other than for the purposes set forth herein. It is expressly understood that no title to or ownership of such information or any part thereof is hereby transferred to Gotham Web.
21. Any customer lists and/or other information concerning the Customer’s clients are the sole and exclusive property of the Customer. Gotham Web shall not for any reason whatsoever, directly or indirectly, solicit the trade business of any of the clients or prospective clients of the Customer with respect to any of the services, products, trade secrets or other matters of the Customer. In addition to maintaining confidentiality of all matters as imposed herein above, Gotham Web agrees to keep in the strictest of confidence any information acquired by Gotham Web during the course of its dealings with the Customer about any of the Customer’s clients, including but not limited to contents of related databases, credit and credit card information.
22. Nothing contained herein shall be construed to place the parties (Customer and Gotham Web) in a relationship of partners, agents or joint ventures. Neither party shall represent itself as the agent or legal representative of the other party for any purpose whatsoever and shall have no power to obligate or bind the other party in any manner whatsoever.
23. If any clause herein shall be found to contravene any law or ordinance in whole or in part, it shall be severed from the Agreement. The balance of the Agreement shall continue in full force and effect.
24. Each party (Customer and Gotham Web) to this agreement represents that it has all necessary rights and authority to enter into the terms of the Agreement and is in compliance with all federal, state and local laws governing this transaction.