- “Plans” means proposals for offering various services to be provided by Digital Canvas, as listed online at: http://www.DigitalCanvas.com/hosting/ “Plans” does not include the use of Digital Canvas’ trademark.
- “Customer” means an end user who is utilizing services provided by Digital Canvas.
- All prices for Plans provided by Digital Canvas to Customer are US dollars.
- Customer shall be responsible for paying all taxes of any nature which become due with regard to Digital Canvas services, except for taxes on Digital Canvas’ income, irrespective of which party may be responsible for reporting or collecting such taxes.
3. ORDER ACCEPTANCE, PAYMENT
- All orders are subject to acceptance by Digital Canvas. An order will be deemed accepted by Digital Canvas when written confirmation of the order is sent to Customer. Digital Canvas may refuse to accept any order, or delay acceptance pending fulfillment of conditions Digital Canvas may choose to impose. Such refusal or such conditions may not be unreasonable, however, and Digital Canvas agrees to provide Customer with reasonable notice via Email or fax of any intent to delay or decline the acceptance of any order.
- Payment and Terms: Payment shall be made in US dollars to Digital Canvas into the account designated by Digital Canvas, or as may otherwise be agreed in writing by the parties. Payments are due upon presentation of invoice. If due to bank charges, transfer fees, or the like, Digital Canvas should receive less than its invoice amount, Digital Canvas will re-invoice Customer for the shortfall. Should payment in full of any invoice (aside from such shortfalls) not be received by Digital Canvas within thirty (30) days after presentation, Digital Canvas will impose a debt service charge amounting to one percent (1%) of the overdue balance for each month or fraction thereof the overdue amount remains unpaid. In the event that any amount remains unpaid forty-five (45) days after presentation of invoice, Digital Canvas may discontinue, withhold, or suspend services to Customer and/or its customer(s) to whom such unpaid amounts relate.
4. DUTIES OF Digital Canvas
Digital Canvas will acquire, on request, an Internet Domain Name (only from the US InterNIC) on behalf of the Customer. In such case the Customer hereby must waive in writing prior to acquisition of said domain name, any and all claims which it may have against Digital Canvas for any loss, damage, claim or expense arising out of, or in relation to, the registration of such Domain Name in any on-line or off-line network directories, membership lists or registration lists, or the release of the Domain Name from such directories or lists following the termination of services by Digital Canvas for any reason. Any costs of Digital Canvas in obtaining or maintaining a domain name for Customer or its customers shall be immediately reimbursed to Digital Canvas upon invoice from Digital Canvas to Customer.
5. RULES AND REGULATIONS
Digital Canvas may impose reasonable rules and regulations regarding the use of its services from time to time. Customer shall impose such rules and regulations on its customers to the extent necessary to ensure compliance. This information is posted on the Internet at: http://www.Digital Canvas.net/about/policy.html
6. LIMITATION OF Digital Canvas’ OBLIGATIONS AND LIABILITY
- Digital Canvas will utilize its best efforts to maintain acceptable performance of services contracted for services, but Digital Canvas makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. Digital Canvas cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. Digital Canvas will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmit-ted or received or stored on its system. Digital Canvas shall not be liable to Customer or any of its customers for any claims or damages which may be suffered by Customer or its customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, nondeliveries, or service interruptions whether or not caused by the fault or negligence of Digital Canvas.
- Digital Canvas may discontinue servicing any Plan, or may require fulfillment of conditions Digital Canvas may choose to impose as a prerequisite for continuing to service any Plan. Such discontinuation or requirement may not be unreasonable, however, and Digital Canvas agrees to provide Customer with reasonable notice via Email and fax of any such intent to discontinue or impose conditions.
- Services provided by Digital Canvas to Customer shall be deemed accepted for all purposes thirty days after presentation of invoice for such services, if no written claim or objection regarding such services has been received by Digital Canvas within the 30-day period. No claim related to such accepted services shall be raised.
- Digital Canvas liability to Customer, and any end user of any Plan or other Digital Canvas services is limited to the amount paid to and received by Digital Canvas for services not accepted. In no event shall Digital Canvas be liable to Customer, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if Digital Canvas has been advised of the possibility of such damage.
- Customer will take all necessary measures to preclude Digital Canvas from being made a party to any lawsuit or claim regarding Digital Canvas services provided to any Customer or end user. Customer hereby agrees to indemnify and hold harmless Digital Canvas from any and all claims of whatever nature brought by any of Customer’s customers against Digital Canvas in excess of the remedy set forth in paragraph 7(D) .
7. PROPERTY RIGHTS
Digital Canvas owns all right, title and interest in Digital Canvas’ trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of Plans and of the hardware and software systems and resources necessary to provide the individual service elements of which they consist. This agreement does not constitute a license to Customer to use Digital Canvas’ trade names or service marks. The use by Customer of the other property rights mentioned here is authorized only for the purposes of marketing and selling Plans in the Territory.
Customer acknowledges that by reason of its relationship with Digital Canvas hereunder, it may have access to certain information and materials relating to Digital Canvas’ business, plans, customers, software technology, and marketing strategies that is confidential and of substantial value to Digital Canvas, which value would be impaired if such information were disclosed to third parties. Customer agrees that it will not use in any way for its own account nor for the account of any third party, nor disclose to any third party, any such information revealed to it by Digital Canvas. Customer further agrees that it will take every reasonable precaution to protect the confidentiality of such information. In the event of termination of this agreement, there shall be no use or disclosure by the Customer of any such confidential information in its possession, and all confidential materials shall be returned to Digital Canvas or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, Digital Canvas shall be entitled to injunctive relief, which relief shall not be contested by Customer.
9. RELATIONSHIP OF THE PARTIES
The relationship between Digital Canvas and Customer is that of vendor and vendee. They shall not be construed as being joint ventures, franchiser/franchisee, or employer/employee. This agreement is a commercial agreement between businesses, not a consumer agreement. Customer has no authority, apparent or otherwise, to contract for or on behalf of Digital Canvas, or in any other way legally bind Digital Canvas in any fashion, nor shall Customer be authorized to make any representations about Digital Canvas or its services other than to set forth Digital Canvas’ responsibilities as outlined in this agreement.
The parties shall attempt to resolve all disputes arising out of this agreement in a spirit of cooperation without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices) and other than the injunctive relief referred to in paragraph 10 shall be subject to arbitration upon written demand of either party. Arbitration shall take place in Antioch, CA, or at another location if the parties so agree. The arbitration shall take place before an arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a third arbitrator and determine the third arbitrator’s compensation. Each party shall have one veto over the choice of the third arbitrator. The three arbitrators shall schedule an informal proceed-ing, hear the arguments, and decide the matter by secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and shall pay half of the other costs of the arbitration proceeding. Each party shall have the right to have the proceedings transcribed. The arbitrators shall not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration; the dissenting arbitrator, if any, shall not issue a dissenting opinion. Regarding each issue submitted to arbitration, the decision shall be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having jurisdiction thereof.
Should any legal action permissible under this agreement be instituted to enforce the terms and conditions of this agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney’s fees and expenses incurred at both the trial and appellate levels.
11. TERM, TERMINATION:
This agreement shall run until the end of the current calendar year. It shall automatically be renewed on an annual basis unless terminated in one of the following ways:
- By either party, by notifying the other in writing by November 30 of any given year that this agreement will not be renewed.
- By Digital Canvas, upon thirty (30) days’ written notice, if Customer breaches any material and substantial provision of this agreement and has not cured by the end of the 30 days.
- By Digital Canvas, upon sixty (60) days’ written notice, if
- Digital Canvas provides Customer with written notice of the specific reasons for its belief in this regard, and
- Customer has not cured by the end of the 60 days.
- By Digital Canvas, immediately upon giving written notice to Customer, in the event that
- Any bank draft or check delivered by Customer to Digital Canvas in payment for Products is returned unpaid and Customer fails to remedy such nonpayment within five business days;
- Customer becomes more than sixty (60) days in arrears in payment of its account with Digital Canvas;
- There are instituted bankruptcy or insolvency proceedings against Customer, which are not vacated within sixty (60) days from the date of filing;
- Customer institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency; or
- Customer makes an assignment of all or part of its assets for the benefit of creditors.
- By Digital Canvas immediately, if Customer attempts to assign all or any part of this Agreement without Digital Canvas’ prior written approval;
- By Digital Canvas immediately, if Customer fails to cause Digital Canvas to be informed in writing immediately on the happening of any event specified in this section;
- By Customer, immediately upon giving written notice to Digital Canvas, if
- There are instituted bankruptcy or insolvency proceedings against Digital Canvas, which are not vacated within sixty (60) days from the date of filing;
- Digital Canvas institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency;
- Digital Canvas makes an assignment of all or part of its assets for the benefit of creditors; or
- Digital Canvas fails to cause Customer to be informed in writing immediately on the happening of any event specified in this section.
The provisions of paragraph survive any termination of this agreement.
Customer’s rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of Digital Canvas, which consent shall not be unreasonably refused.
13. PARTIAL INVALIDITY
If any provision of this agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. Digital Canvas and Customer agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.
14. APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement takes effect when accepted by Digital Canvas in Florida. It is to be governed by and construed under the laws of the State of Florida and the United States of America. The federal and state courts of the State of Florida shall have exclusive jurisdiction to adjudicate any non-arbitrable dispute arising out of this agreement. Customer hereby expressly consents to (1) the jurisdiction of the courts of Florida and (2) service of process being effective upon it by registered mail sent to the address set forth at the beginning of this document, as may be changed from time to time by written notice actually received by Digital Canvas. To the extent permissible by the law of Customer’s jurisdiction, Customer waives any requirement that service of process or of any documents be made upon it pursuant to the provisions of the Hague Convention.
Except with respect to service of process as set forth in paragraph , all notices may be sent by email, fax, or express mail to the email address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.
16. ENTIRE AGREEMENT; MODIFICATIONS
This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. Digital Canvas may make changes to this agreement upon thirty (30) days’ written notice to Customer, advising of the change and the effective date thereof. Utilization of Digital Canvas services by Customer and/or its Customers following the effective date of such change shall constitute acceptance by Customer of such change(s). Otherwise, this agreement may not be modified except by the of written consent of both parties.