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VIRTUAL SERVER AGREEMENT
December 1, 1997
| GSP Services, Inc. (we, us, our) and Client (you, your) agree
to the following: |
| 1.0 |
Definitions. |
| 1.1 |
"Client" means the person who orders the Virtual Server and has
ownership and control rights and obligations for the Virtual Server.
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| 1.2 |
"Client Data" means all supporting data files and data
structures provided by the Client for its Virtual Server.
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| 1.3 |
"Virtual Server" means the server space and software
services provided to the Client including but not limited to the
HTTP service, FTP service, SMTP service, POP service, server extensions,
third-party software, and CGI library scripts.
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| 1.4 |
"Physical Server" means the serving computers, hardware
and operating-system, and software necessary to operate and support the
Virtual Server in accordance with this Agreement.
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| 2.0 |
Scope of Services.
We will provide you with the following specific services: |
| 2.1 |
Physical Server Hardware and Software Services.
We will provide the
Physical Servers and other computer and operating-system software to
operate and support the Virtual Server in a manner acceptable in the
industry. Although we will make reasonable efforts to protect and backup
data for you on a regular basis, we are not responsible for the Client
Data residing on the Virtual Server. You are ultimately and solely
responsible for the backup of Client Data stored on your Virtual Server.
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| 2.2 |
Physical Server Set-Up and Updating.
We will configure the Virtual Server,
and Client will load the Client Data onto the server computers
so as to create a fully functional Internet presence. After the Virtual
Server is loaded, set up with the Client Data, and is fully operational,
Client will be responsible for all Web Server content management.
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| 2.3 |
Physical Server Connection and Access.
We will provide connection of
the Virtual Server to the Internet, including all telecommunications
equipment and connections for the Virtual Server to provide public access
on a 24-hour-a-day, 7-day-a-week basis, with the exception of scheduled
maintenance downtime. We will use our best efforts to provide
uninterrupted Physical Server Connection and Access, except for
scheduled maintenance downtime and any interruption to Physical Server
Connection and Access beyond our control caused by, for example, acts of
nature, third-party equipment or transmission failures, or security
breaches.
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| 2.4 |
Maintenance Services.
We will perform maintenance services as we
determine reasonably necessary to maintain the continuous operation of
the Virtual Server. You agree to periodically-scheduled maintenance
downtime periods. We will provide prior notice of the maintenance
downtime, except when circumstances beyond our control limit our ability
to do so.
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| 2.5 |
Hardware, Equipment and Software.
You are responsible for and must
provide all telephone, computer, hardware and software equipment and
services necessary to access us. We make no representations, warranties,
or assurances that your equipment will be compatible with our service.
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| 3.0 |
Payment Terms.
You agree to the following payment terms in consideration for
the services provided: |
| 3.1 |
Set-Up Fee.
You will pay us a one-time, non-refundable set-up fee
according to our current Virtual Server Price Schedule, which is available
on our home page (https://www.gsp.com) or upon request.
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| 3.2 |
Service Fee.
You will pay us a monthly Service Fee for the services we
provide under this Agreement according to our current Virtual Server
Price Schedule, which is available on our home page or upon request. The
Service Fee is billed to you at the beginning of each month and is due on
the 15th day of the month in which the Service Fee is billed. If you first
begin using our services after the first of the month, we will prorate your
first month's Service Fee. The Service Fee is subject to adjustment, with
notice, according to the current Virtual Server Price Schedule.
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| 3.3 |
Cancellation.
In the event you cancel your service, you will be charged in
full for the entire month in which you canceled your service. In the event
you have elected to prepay subsequent, additional months' Service Fees,
we retain the right to charge you an administrative fee and deduct the
administrative fee from the subsequent, future months' Service Fees
before refunding them to you.
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| 3.4 |
Breach.
In the event we terminate this Agreement because of a breach,
you will be charged in full for the entire month in which the breach
occurred. In the event you have elected to prepay subsequent, additional
months' Service Fees, we retain the right to charge an administrative fee
and deduct the administrative fee from the subsequent, future months'
Service Fees before refunding them to you
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| 3.5 |
Tax.
These fees are exclusive of any and all federal, state, and local sales,
use, value added, excise, duty and any other taxes assessed with respect to
the services provided under this Agreement, except that your income taxes
and any sales or similar taxes on the sale of the Client products and
services to end users shall be the sole responsibility of the Client.
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| 4.0 |
Representations and Warranties.
Our obligations under this Agreement are
conditioned upon the following representations and warranties: |
| 4.1 |
Compliance with Law.
You represent and warrant that you will comply
with all applicable state and federal laws in your performance of this
Agreement and in the use and operation of the Virtual Server, including
laws governing technology, software and trade secrets.
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| 4.2 |
Authority to Contract.
You represent and warrant that you have full
authority and right to enter into this Agreement and that there are no
conflicting claims relating to the rights granted by this Agreement.
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| 4.3 |
Non-Infringement.
You represent and warrant that your performance of
this Agreement and providing the Web Service, including the software or
data files, shall not infringe the intellectual property or other proprietary
rights of any third party.
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| 4.4 |
Our Performance.
We represent and warrant that our services shall be
performed in a professional and workmanlike manner, and the computer
servers will be operated in accordance with our obligations as defined by
this Agreement.
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| 4.5 |
Disclaimer of Warranties.
EXCEPT FOR THE EXPRESS
WARRANTIES CONTAINED ABOVE, WE MAKE NO WARRANTY
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT,
AND ALL SERVICES ARE PROVIDED ON AN "AS-IS" BASIS,
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
OR OF NON-INFRINGEMENT.
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| 5.0 |
You expressly agree that use of our Virtual
Server is at your own risk. Neither we, our employees, affiliates,
agents, third-party information providers, merchants, licensors or
the like, warranty that our service will not be interrupted or error
free; nor do we make any warranty as to the results that may be
obtained from the use of our service or as to the accuracy, reliability
or content of any information serviced or merchandise contained in or
provided through our service, unless otherwise expressly stated in this
Agreement. |
| 5.1 |
Under no circumstances,
including negligence, will we, our officers,
agents or anyone else involved in creating, producing or distributing our
service be liable for any direct, indirect, incidental, special or
consequential damages that result from the use of or inability to use our
service. We will further not be liable for results from mistakes, omissions,
interruptions, deletions of files, errors, defects, delays and operation, or
transmission or failure of performance whether or not limited to acts of
nature, communication failure, theft, destruction or unauthorized access to
our records, programs or services. You acknowledge that this paragraph
shall apply to all content on our Virtual Server.
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| 5.2 |
Your exclusive remedy
for all damages, losses and causes of actions
whether in contract or tort (including negligence or otherwise) will not (a)
exceed the actual dollar amount which you paid during the 12-month
period prior to the date the cause of action arose, or (b) include any
incidental, consequential, extemporary or punitive damages of any kind,
including without limitation, loss of data, file, profit, good will, time,
savings or revenue.
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| 6.0 |
Term and Termination.
The following describes the effective date, duration and
methods of termination: |
| 6.1 |
Effective Date.
The Effective Date of this Agreement is the last date
appearing on this document.
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| 6.2 |
Duration.
This Agreement will commence on the Effective Date and
continue on a month-to-month basis.
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| 6.3 |
Termination for Convenience.
Subject to Section 3.3, you may terminate
this Agreement at any time for your convenience by providing us with
advance written notice.
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| 6.4 |
Breach or Default.
The following constitute a breach or default of this
Agreement:
- your failure to pay the current month's Service Fee by
the fifteenth day of the following month,
- your violation of Section 8.0,
- your violation of 9.2, or
- your violation of Sections 4.1, 4.2 or 4.3.
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| 6.5 |
Special Lien on Personal Property.
We retain a special lien on all of your
personal property in our possession to secure any payment amount you
may owe us under this Agreement.
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| 7.0 |
Ownership Rights.
We acknowledge that all right, title and interest in the Client
Data shall be solely owned by the Client. We own or have licensed
all server software. In the event that we elect, at our option, to
provide custom software to you, this software will be licensed to
you for use only on a GSP Virtual Server on a non-exclusive,
royalty-free, fully-paid basis according to the terms of this Agreement.
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| 8.0 |
Activities Subject to Immediate Deactivation.
Any Virtual Server that is used for
Illegal, Abusive or Unethical Activity may be immediately deactivated
by us without warning to you. Illegal, Abusive or Unethical Activities
include, but are not limited to, pornography, obscenity, nudity,
violations of privacy, hacking, computer virus, gambling, or promotion
of gambling, and any harassing or
harmful materials or uses, as determined by us. You agree to indemnify
and hold us harmless from any claim resulting from your publications or
use of Illegal, Abusive or Unethical materials. Although we will make
reasonable efforts to alert you to such activities and allow you an
opportunity to cure them within a 12-hour period after discovery, we are
not required to give notice before deactivating your use of our services
if, in our discretion, your use is or results in Illegal, Abusive or
Unethical activities. If a Virtual Server is disabled, the regular
monthly fees still apply.
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| 9.0 |
Miscellaneous. |
| 9.1 |
Public Nature of Internet.
Please understand that all information
submitted on the Virtual Server shall be considered publicly accessible.
Important and private information should be protected by you. For
example, we are not liable for protection or privacy of electronic mail or
other information transferred through the Internet or any other network
provider that you may use.
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| 9.2 |
Unsolicited Electronic Mail.
You are expressly prohibited from sending
unsolicited bulk mail messages ("junk mail" or "spam"). This includes,
but is not limited to, bulk-mailing of commercial advertising, information
announcements, and political tracts. Such material may only be sent to
those who have specifically requested it. Malicious or threatening email is
also prohibited. Although we will make reasonable efforts to alert you to
such activities and allow you an opportunity to cure them within a 12-hour
period after discovery, we reserve the right to immediately deactivate your
use of our service if we discover such activity. Further, you agree to
indemnify and hold us harmless from any claim resulting from your use or
distribution of electronic mail services through the service provided
through this Agreement.
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| 9.3 |
Governing Law and Attorneys' Fees.
This Agreement will be interpreted
and applied in accordance with the laws of the state of Maryland, without
regard to the conflicts of law provisions. In any action or proceeding to
enforce rights under this Agreement, the prevailing party will be entitled to
recover costs and attorneys' fees, whether or not a suit is actually filed.
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| 9.4 |
Control and Ownership of IP.
We maintain and control ownership of all
IP numbers and addresses that may be assigned to you, and we reserve, in
our sole discretion, the right to change or remove any and all IP numbers
and addresses.
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| 9.5 |
Excessive CPU Usage.
Virtual Servers which use, in our discretion, CPU
processing capacity on the Physical Server in excess of the designed
processing capacity will be subject to immediate deactivation. Upgrades
to the processing capacity are available.
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| 9.6 |
Resale of Services and Flow-down of Obligations.
You may resell space
on your own Virtual Servers but you must first obligate any such resale to
the same terms of this Agreement and incorporate into that resale all of our
rights, including our rights regarding content and activity.
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| 9.7 |
Age.
You certify that you are at least 18 years of age.
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| 9.8 |
Transfer.
You may not transfer or assign this Agreement without the
written consent of GSP Services, Inc.
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WARNING: YOUR SIGNATURE ON A HARD COPY OF THIS AGREEMENT IS NOT REQUIRED IN ORDER FOR THE AGREEMENT TO BE LEGALLY
BINDING ON YOU. YOUR USE OF THE SERVICE OR THE SOFTWARE SHALL CONSTITUTE A VIRTUAL SIGNATURE, HAVING THE SAME FORCE
AND EFFECT AS IF YOU HAD ACTUALLY SIGNED A HARD COPY OF THIS AGREEMENT.
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