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These terms and conditions
("Terms") govern the provision by Graphecom Design Concepts and the use
by the customer ("Customer") of the Graphecom Design Concepts family of
services ("Services"). References in these Terms to "Customer" include
individuals authorized by Customer to use the Services, except where the
context clearly requires otherwise. By ordering and using the Services
or any portion thereof, Customer agrees as follows:
1. The Services. The Services consist of various forms of web
hosting, terminal server services, design, monitoring, management,
maintenance, development, managed security services, and other
Internet-related services. Additional features and services may be made
available as announced by and under terms and conditions established by
Graphecom Design Concepts, including without limitation any changes to
these Terms made by Graphecom Design Concepts from time to time
hereafter and provided to Customer in writing. The Services and all
features or aspects thereof, whether described herein or in any such
additional materials, shall continue to be governed by and provided
subject to these Terms unless or except to the extent that a separate
agreement has been signed by Customer and Graphecom Design Concepts
specifically relating to such additional features or services which
expressly makes exception to these Terms.
2. Term. Customer's agreement for the use of the Services will be
in effect from the date Customer's Order is accepted by Graphecom Design
Concepts as provided below, and, unless terminated earlier as set forth
herein, shall continue thereafter for the minimum term (if any) set
forth in such Order. If no minimum term is specified in such Order, or
if the Services continue beyond such minimum term without execution by
both parties of an extension to such Order, the Services will be
provided on a month-to-month basis at the then prevailing month-to-month
rates for the Services until either party gives the other at least
thirty (30) days written notice of termination of the Services.
3. Rates and Charges. The rates and charges payable by Customer
for the services shall be as set forth in the Customer's Order(s) which
have been accepted by Graphecom Design Concepts as provided herein, and
shall be computed in accordance with Graphecom Design Concepts' rate
schedules. Rates and charges are subject to change by Graphecom Design
Concepts on thirty (30) days notice, except that if Customer has elected
a minimum term for the Services in its Order. Then the rates for the
Services in effect at the time of the Order shall remain in effect for
the duration of such minimum term (unless otherwise provided in such
Order). Customer will be invoiced monthly for usage of the Services.
Payment must be received by Graphecom Design Concepts within 30 days
after the date of the invoice. Customer will pay or reimburse Graphecom
Design Concepts for any and all sales and use taxes, duties, or levies
imposed by any authority, government, or government agency (other than
taxes levied on Graphecom Design Concepts' net income) in connection
with Customer's usage of the Services. If any payment due hereunder is
not made within thirty (30) days after the invoice date, late charges of
one and one-half percent (1 1/2%) per month will be computed in next
monthly invoice. Late charges shall be due and payable with respect to
such payment.
4. Customer's Responsibilities.
(a) As between Customer and Graphecom Design Concepts, Customer
is responsible for: (i) assuring that its authorized users comply with
the provisions of these Terms and that unauthorized persons do not
gain access to or use the Services through user names, passwords, or
other identifiers assigned to Customer pursuant to these Terms; (ii)
timely payment of all charges for usage of the Services applicable to
its account whether or not by authorized users or for authorized
purposes; and (iii) performing its other obligations under these
Terms. Customer shall not use the Services in any way which would be
or would assist any third party to be in violation of any law, these
Terms or any Acceptable Use Policy applicable to the Services.
Customer shall not transmit or publish on or over the Services any
information, software or other content which violates or infringes
upon the rights of any others or use the facilities and capabilities
of the Services to conduct any business or activity or solicit the
performance of any activity which is prohibited by law. Customer shall
comply with all applicable laws, rules and regulations in connection
with the Services.
(b) If Customer is obtaining Web Site or Application Hosting or
related Services hereunder, Customer shall provide all relevant
Customer-specific or other graphics, text and other information or
other content desired by Customer to be incorporated into Customer's
Web Site or hosted application in a timely manner, and such other
related information or documentation as is reasonably requested by
Graphecom Design Concepts for purposes of facilitating Graphecom
Design Concepts' provision of Services to Customer.
(c) Delay or failure by Customer to fulfill its
responsibilities may result in an adjustment to the costs or the
schedule for delivery of the Services, and shall release Graphecom
Design Concepts from its obligations hereunder to the extent that
Graphecom Design Concepts is adversely affected by such Customer delay
or failure.
5. Graphecom Design Concepts' Responsibilities. Graphecom Design
Concepts agrees to the following responsibilities (subject to the
limitations set forth in these Terms):
(a) Graphecom Design Concepts will operate the Services in
accordance with its standard policies and procedures and will use
commercially reasonable efforts to make the Services available to
Customer as described in these Terms. Graphecom Design Concepts will
give Customer reasonable notice of scheduled downtimes for
maintenance.
(b) Graphecom Design Concepts will notify Customer of any
changes in the rates or charges for the Services, as well as any
changes in the features of the Services or in Graphecom Design
Concepts' policies in the operation of the Services which are
reasonably expected to materially affect Customer's use thereof.
(c) Graphecom Design Concepts will use a reasonable degree of
care to maintain the secrecy of any of Customer's passwords which are
in its possession, but Graphecom Design Concepts shall not be liable
for any unauthorized access to or use of the Services or Customer's
Network by third parties.
(d) Upon notification from Customer of any interruption or
malfunction in the Services or a need for reconfiguration of
Customer's Services, Graphecom Design Concepts will use reasonable
efforts to cause the same to be repaired or reconfigured. Graphecom
Design Concepts shall have the right to access Customer's Services for
the purpose of performing such repairs or reconfiguration or
confirming Customer's compliance with its obligations with respect to
the Services.
6. Limitation of Warranties and Liability; Disclaimer of Warranties.
CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT CUSTOMER'S SOLE
RISK. NEITHER Graphecom Design Concepts NOR ANY OF ITS UNDERLYING
SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR
AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR
DOES Graphecom Design Concepts OR ANY OF ITS UNDERLYING SERVICE
PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS MAKE
ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE.
THE SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" 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 (IF ANY) WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION,
RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS SERVICE
AGREEMENT, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. NEITHER
Graphecom Design Concepts NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS,
INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS SHALL HAVE ANY
LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES
SUFFERED BY CUSTOMER OR ANY OTHER PARTY AS A RESULT OF THE OPERATION OR
MALFUNCTION OF THE SERVICE, REGARDLESS OF WHETHER OR NOT SUCH PARTIES
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER EXPRESSLY
ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY TO ALL
CONTENT OR OTHER SERVICES AVAILABLE THROUGH THE SERVICE. CUSTOMER AGREES
THAT CUSTOMER WILL NOT IN ANY WAY HOLD Graphecom Design Concepts OR ANY
OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS,
EMPLOYEES, OR AGENTS RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR
THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICE
(INCLUDING THOSE WITH WHOM Graphecom Design Concepts MAY CONTRACT TO
OPERATE VARIOUS AREAS ON THE SERVICE).
7. Remedies of Customer. Customer's sole remedy for any failure
or non performance of the Services (including any associated Equipment,
Software or other materials supplied in connection with the Services)
shall be (i) for Graphecom Design Concepts to use commercially
reasonable efforts to effectuate an adjustment or repair of the Services
and, in the event such failure or non-performance results in Service
downtime which exceeds the period of time specified in the applicable
service level agreement portion (if any) of any applicable Order or
Service Description, to receive a refund or credit of or against any
charges otherwise payable for the Services for the period of service
downtime as provided for in the applicable service level agreement
portion (if any) of any applicable Order or Service Description, or (ii)
if such failure or non-performance results in Service downtime or
degradation so substantial as to render the Service essentially
unavailable to or unusable by Customer for normal use, to terminate the
Services for default by Graphecom Design Concepts in the manner provided
in these Terms. Unless specified to the contrary in any applicable
service level agreement portion of any applicable Order or Service
Description, the maximum credit for service downtime or other failure
shall not exceed the total monthly bill to the Customer for the Services
for the month in which such downtime or failure occurs.
8. Disclaimer of Liability. Graphecom Design Concepts and its
underlying service providers, information providers, licensors,
employees, or agents shall not be responsible for the use made of the
Services by Customer, its authorized users, or any other customer or
third party. Without limiting the generality of the foregoing, Graphecom
Design Concepts and its underlying service providers, information
providers, licensors, employees, or agents shall not be liable to
Customer or any of Customer's users for any lost profits or other
consequential damages, even if such parties have been advised of the
possibility of such damages; any claim or other action against Customer
by any third party (except as set forth in the section below on
infringement); any act or omission of any other entity furnishing
products and services which are used by Customer in connection with the
Services or for failure of any products or services provided by
Customer; or any damages or losses caused by the fault or negligence of
Customer or Customer's failure to perform Customer's responsibilities.
9. Limitation of Liability. In the event that a court should hold
that the limitations of liabilities or remedies available as set forth
in these Terms, or any portions thereof, are unenforceable for any
reason, or that any of Customer's remedies under these Terms fail of
their essential purpose, Customer expressly agrees that under no
circumstances shall Graphecom Design Concepts' total liability (nor that
of any of its underlying service providers, information providers,
licensors, employees, or agents) to Customer or any party claiming by,
through or under Customer for any cause whatsoever, and regardless of
the form of action, whether in contract or in tort, including
negligence, in the aggregate, exceed the amount of charges paid by
Customer for use of the Services during the twelve-month period
preceding the date such claim first arose.
10. Indemnification.
(a) If promptly notified in writing of any action brought
against Customer based on a claim that the Services infringe a United
States patent, copyright, trademark, or other intellectual property
right, Graphecom Design Concepts will defend that action at its
expense and will pay any and all fees, costs or damages that may be
finally awarded in that action and/or a settlement resulting from it
(provided that Customer shall permit Graphecom Design Concepts to
control the defense of such action and shall not make any compromise,
admission of liability or settlement or take any other action
impairing the defense of such claim without Graphecom Design Concepts'
prior written approval). If a final injunction is obtained against
Customer prohibiting usage of the Services by reason of infringement
of a United States patent, copyright, trademark, or other intellectual
property right, Graphecom Design Concepts will, at its option, either:
(1) at its expense procure the right for Customer to continue using
the Services or (2) direct Customer to cease using the Services. In
the latter event, the Services shall terminate immediately.
(b) Customer will indemnify and save harmless Graphecom Design
Concepts from and against all loss, liability, damage, and expense,
including all reasonable counsel fees, due to claims for infringement
of patents, copyright, trademark, or other intellectual property
rights, or due to any other claims or causes of action by third
parties of any nature whatsoever, arising from the use in connection
with the Services of equipment, software or information not provided
by Graphecom Design Concepts, or otherwise relating to or arising out
of Customer's use of the Services.
11. Force Majeure. Graphecom Design Concepts shall not be
responsible for any delay or failure in delivery or performance of any
of its duties hereunder due to acts of God, acts or omissions of any
regulated telephone network or any other occurrence commonly known as
force majeure, including war, riots, embargoes, strikes, or other
concerted acts of workers (whether of Graphecom Design Concepts or
others), casualties or accidents, or any other causes or circumstances
whether of a similar or dissimilar nature to the foregoing, which
prevent or hinder the delivery of the Services. Graphecom Design
Concepts may cancel or delay performance hereunder for so long as such
performance is delayed by such occurrence or occurrences, and in such
event Graphecom Design Concepts shall have no liability to Customer.
12. Termination and Default.
(a) Graphecom Design Concepts may, at its sole discretion,
terminate any Customer Order and discontinue Customer's access to and
use of the Services, if: (i) Customer fails to pay any amount within
10 days after written notice that the same is delinquent; or (ii)
Customer breaches any of the terms, conditions, obligations, or
representations contained in these Terms; or (iii) Customer shall be
in default under any other agreement with Graphecom Design Concepts;
or (iv) Customer becomes the subject of a voluntary or involuntary
bankruptcy, insolvency, reorganization, or liquidation proceeding,
makes an assignment for the benefit of creditors, or admits in writing
its inability to pay debts when due, or (v) Customer's equipment or
use of the Services interferes with the Services or any other user. In
the event of a default by Customer as specified in this section,
Graphecom Design Concepts shall also be authorized to retain all
payments made hereunder and to recover the full unpaid balance of the
charges applicable to the remainder of the then current minimum term
of Customer's Order for the Services. In addition, if Graphecom Design
Concepts reasonably determines that the continuation of the Services
has become impractical or unfeasible for any technical, legal,
regulatory or other reason, Graphecom Design Concepts may terminate
the Services at any time. Graphecom Design Concepts will, in such
event, provide Customer with at least thirty (30) days prior notice of
such termination if reasonably practical.
(b) If Customer has elected a minimum term for the Services and
then cancels its Services or any portion thereof (or has its Services
or any portion thereof terminated for default as provided above) prior
to the expiration of such minimum term, Customer shall be obligated to
pay Graphecom Design Concepts a termination charge equal to the amount
(if any) specified in the applicable Order; otherwise the termination
charge shall be equal to 100% of the total monthly charges (other than
variable usage charges) which would have become due for the remainder
of the scheduled minimum term if such cancellation had not occurred.
13. General.
(a) Except as otherwise set forth herein, all notices from
either party to the other shall be delivered either personally or by
first-class, pre-paid U.S. mail. Notice to either party shall be sent
to the respective address as set forth in Customer's order for the
Services, unless written notice of a change of address shall have been
previously given by either party.
(b) Customer may permit its customers or other authorized users
to utilize the Services as part of business operations or services
provided by Customer, subject to these Terms. However, Customer's
Services may not be assigned or transferred by Customer without the
prior written consent of Graphecom Design Concepts. Any attempt by
Customer to assign or transfer any of the rights, duties, or
obligations of Customer with respect to the Services without Graphecom
Design Concepts' written consent shall be void, and no assignment or
transfer shall release Customer from any of its obligations with
respect to the Services. Graphecom Design Concepts may assign,
delegate or otherwise transfer its rights or obligations hereunder, in
whole or in part, at any time, but no such assignment shall release
Graphecom Design Concepts from ultimate responsibility for the
Services hereunder.
(c) No action, regardless of form, arising out of the Services
or these Terms may be brought by either party more than two years
after the cause of action has arisen.
(d) These Terms, including any orders for the Services from
Customer which have been accepted by Graphecom Design Concepts, set
forth the entire agreement between Customer and Graphecom Design
Concepts respecting the Services, and supersede any prior written or
verbal proposals, agreements, understandings or other discussions
respecting the same. Graphecom Design Concepts will not be bound by
any provision contained in any purchase order, confirmation,
correspondence or other communication from Customer which is at
variance with, in addition to or conflicts with any provision of these
Terms, unless such variance, addition or conflict is specifically
identified in a written agreement signed by Customer and an authorized
representative of Graphecom Design Concepts which expressly references
the appropriate provision of these Terms. No agent, employee, or
representative of Graphecom Design Concepts has any authority to bind
Graphecom Design Concepts to any affirmation, representation, or
warranty unless the same is specifically set forth in these Terms or
in a written agreement as provided above.
(e) These Terms and the Services shall be governed by the laws
of the State of North Carolina, without regard to its conflicts of
laws provisions. If any provision or provisions hereof shall be held
to be invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not be in any way
affected or impaired thereby.
(f) The remedies of the parties set forth herein are not
exclusive unless expressly so stated herein.
Graphecom Design Concepts
Terms & Conditions
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