Policies & Agreements
The following policies and agreements affect our customers.
Please be sure that you read and understand the policies and agreements
that affect you.
Acceptable Uses Policy
The terms of the Virtual Server Acceptable Uses Policy
(VSAUP, AUP, or Policy) exists for the collective benefit of all web
hosting clients. We have implemented these rules as a measure to protect
us and our partners from unwanted activities and in order to provide
our clients with the most reliable and best overall hosting services
and features possible. Our Virtual Server Acceptable Uses Policy is
only a portion of our Virtual Server Agreement (VSA or Contract) that
you agreed to when opening your account with us. We ask that as a client
you please respect and follow our AUP and our VSA.
If it is found that your web site is in violation of the
AUP or VSA, we reserve the right to terminate your account without notice,
solely at our discretion. Clients who follow our simple policies will
not encounter any problems with their service.
If after reading through the AUP you need clarification
on any part of the terms, please feel free to e-mail us so we can clear
up any questions you have.
VIRTUAL SERVER ACCEPTABLE USES POLICY
Restricted Content
Web sites with adult graphic content (softcore and/or hardcore), including,
but not limited to, banners advertising any adult web site(s), child
pornography, and distribution of adult web site passwords are strictly
forbidden. Client's whose accounts are found in violation of this policy
may, at the discretion of Conxsys, have their account(s) terminated
without notice and are subject to a maximum clean-up/disconnect fee
of up to $1,000.
Client's who’s web site promotes activities that violate
federal, state, or local laws and/or are in violation of U.S. export
restrictions are also not welcome. This includes "warez" sites
(freely distributing copyright programs), or sites promoting hacking
and/or cracking programs. Client's whose accounts are found in violation
of this policy may, at the discretion of Conxsys, have their account(s)
terminated without notice and are subject to a maximum clean-up/disconnection
fee. Additionally, Conxsys may contact the Software & Information
Industry Association ("SIIA"), formerly Software Publishers
Association ("SPA") and release any information in connection
with any illegal activities relating to software piracy on the Client's
account.
IRC Bots, or any other automaton programs written in C,
Perl or IRC-script used specifically in conjunction with IRC are not
allowed. These programs tie up system resources and are in no way related
to maintaining a web site. Clients are not allowed to have any programs,
including but not limited to, Eggdrop, or any other IRC-related programs,
within their account. Client agrees not to upload the tar file for any
of these programs or to execute them within their account. The first
violation of this policy will result in the IRC-related program to be
removed from the Client's account and Conxsys will notify the Client
immediately of the violation. The second violation of this policy may,
at the discretion of Conxsys, result in the Client's account(s) being
terminated without notice and a maximum clean-up/disconnect fee.
E-mail/Spam Policy
Spamming is the sending of unsolicited e-mail, regardless of size or
volume, to persons the sender does not know or have prior consent to
send the message to. Using fictitious e-mail addresses @conxsys.com
or any domain name hosted with Conxsys is strictly forbidden. Spamming
also includes sending unsolicited advertisements to numerous email addresses
or newsgroups and/or generating a significantly higher volume of outgoing
email than a normal user. A violation of this policy extends to clients
who send unsolicited e-mail from a domain name not affiliated or hosted
through Conxsys but the mail message makes mention of a web site hosted
through Conxsys.
Clients are allowed to send mailings to subscribers of
their own mailing list. Such mailings must have explicit instructions
to the recipient on how to remove his/her name from the list, and all
requests to do so must be honored immediately. Client agrees not to
send mailings to lists provided by an outside agency or individual.
Client further agrees not to provide mailing list services to others.
Due to the nature of a shared-server environment, it is requested that
mailing lists be sent during non-peak hours, specifically between the
hours of 11:00 pm and 3:00 am Pacific Time. Conxsys and its brokering
partners reserves the right to terminate a client's mailing program,
whether provided by Conxsys or not, immediately and without notification
to client if said list causes a problem with the e-mail services of
other clients. Conxsys also reserves the right to forbid a client from
utilizing any mail-sending program that jeopardizes the mail services
of other clients.
Due to the consumption of system resources and overloading
of the e-mail server, Conxsys forbids the use of the Gossamer Links
program by any client.
Trolling, the posting of outrageous messages to generate
numerous responses, is also not allowed. Mailbombing, the sending of
multiple messages without significant new content to the same user and/or
subscribing someone else to a mailing list without that person's permission,
cross-posting articles to an excessive number of newsgroups, or attempting
without authorization to enter into a secured computer system is strictly
forbidden. Conxsys reserves the right to determine what constitutes
abuse of this policy. Clients whose accounts are found in violation
of this policy may, at the discretion of Conxsys, have their account(s)
terminated without notice and are subject to account termination without
notice and a maximum clean-up/disconnection fee.
Copyrighted Material
It is the responsibility of the client to ensure that all information
within their account is their own work. Due to distribution rights of
shareware programs, clients may not distribute freeware software programs
unless the programs are their own work. Copyrighted materials include
art, music and other works. MP3 is a popular file format for encoding
music. While we do not ban MP3s, we do ask that any MP3s you have on
your web site are not in violation of any copyrights. Copyrighted music,
in any format, cannot be placed within client's account. Clients agree
to indemnify Conxsys of any possible litigation involving trademark
or copyrighted materials. The best rule to follow is not to copy work
from someone else unless you have been granted written permission to
use these materials on your web site.
Client agrees not to modify any copyright notices in features
(Perl programs, etc.) provided by Conxsys. Modification of scripts provided
by Conxsys without written permission is strictly prohibited. Web sites
found in violation of this policy are subject account termination without
notice and a maximum disconnect/clean up fee.
Excessive CPU Run Time/RAM Usage
Client agrees to take all responsibility for all programs including
CGI scripts executed under their account. Programs that consume an excessive
amount of CPU run time or Random Access Memory (RAM) are not permitted.
Client agrees and understands that such excessive use can have an adverse
effect on the performance of the web server. Client agrees to accept
responsibility for programs executed under his/her account, regardless
of who authored the program. The use of CGI or HTML chat scripts or
pages is strictly prohibited with exception to any chat scripts provided
by Conxsys. Conxsys reserves the right to suspend accounts without notice
to clients who violate these terms. Conxsys has sole discretion over
what constitutes excessive usage.
Programs provided by Conxsys as an installable feature
are not exempt from this policy. While every effort is made on our end
to ensure the programs provided are efficient, problems with excessive
usage on particular programs may occur.
Conxsys reserves the right to modify the Contract for
Virtual Servers and the Virtual Server Acceptable Uses Policy at any
time with advance notice given to clients. Renewal of a virtual server
with Conxsys constitutes acceptance to all modifications of the contract
and Acceptable Uses Policy.
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Virtual Server Agreement
READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES DESCRIBED
BELOW. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT
ACCESS OR OTHERWISE USE THESE SERVICES. BY SIGNING UP FOR SERVICE AND
YOUR CONTINUED USE OF THE SERVICE INDICATES YOUR ACKNOWLEDGEMENT THAT
YOU HAVE READ AND ACCEPTED THESE TERMS AND CONDITIONS.
The following Virtual Server Agreement (“Agreement”, “VSA”)
is between you (“Client”) and Conxsys. Conxsys is in the business of
offering, among other things, Internet access services pursuant to virtual
server plans (“Plans”) containing various features as more specifically
set forth in each Plan. Client desires to engage Conxsys in accordance
with the terms and conditions as set forth below.
Conxsys may amend this Agreement at any time by posting
the amended Agreement on its web site and the effective date of any
such amendment will be the date on which the amended Agreement is so
posted. In addition, Conxsys will e-mail Client a notice of the amended
Agreement. Without limiting the generality or effect of the foregoing,
Conxsys may also add, delete, or modify some or all of its Services
at any time in its sole discretion.
By accepting the terms and conditions of this Agreement,
Client (i) represents and warrants that he/she is at least eighteen
(18) years of age and is the authorized representative of the organization
or entity that he/she purports to represent, and (ii) agrees to provide
true, accurate, current, and complete information about Client as prompted
in the account registration process. If any information provided by
Client is untrue, inaccurate, not current, or incomplete, Conxsys maintains
the right to terminate Client’s account and refuse any and all current
or future use of the Services (as defined below).
1. Services
1.1. Virtual Server. Conxsys agrees to provide Client
with (i) space on a server (“Virtual Server”) to host a site on the
Internet (“Web Site”), (ii) a license to use the Personal Control
Panel, VirtualCP, and other proprietary software (“Software”), and
(iii) various other services to facilitate the creation and maintenance
of the Web Site (collectively, “Services”) as more specifically set
forth in Client’s Plan and this Agreement. Conxsys shall provide the
services so that the Web Site is accessible to third parties via the
World Wide Web portion of the Internet as specified herein. Except
as expressly provided herein, Client agrees that Conxsys is responsible
only for providing the Services provided in the Client’s Plan and
this Agreement, and Conxsys is not responsible for providing any other
services or tasks.
1.2. Availability of Web Site. The Web Site is generally
accessible to third parties via the Internet twenty-four (24) hours
a day, seven days a week, except for scheduled maintenance and required
repairs, and except for any loss or interruption of Service due to
causes beyond the control of Conxsys or which are not reasonably foreseeable
by Conxsys, including but not limited to interruption or failure of
telecommunication or digital transmission links and Internet slow-downs
or failures. See Section 6.2 for description of 99.5% warranty and
limitation on liability.
2. Client Obligations.
2.1. Client Files. Client shall provide to Conxsys
all materials comprising the Web Site, including but not limited to,
any images, photographs, illustrations, graphics, audio clips, video
clips, or text (the “Client Content”), which shall be in the correct
format (as specified by Conxsys), including but not limited to, HTML
format (“Server Ready”). Conxsys reserves the right, in its sole discretion,
to exclude or remove from the Web Site any Client Content for any
of the following reasons: (i) Client Content is not Server Ready,
(ii) CGI scripts or programs consume an unreasonable amount of Central
Processing Unit (“CPU”) usage or Random Access Memory (“RAM”), (iii)
Conxsys has received a significant number of complaints regarding
client’s failure to be reasonably accessible to Client’s customers
or timely fill orders, (iv) Client has become the subject of a government
complaint or investigation, or (v) any other reason which may violate
or infringe any law or third party right or which otherwise may potentially
expose Conxsys and its partners to civil or criminal liability or
public ridicule, provided that such right shall not plan an obligation
on Conxsys to monitor or exert editorial control over the Web Site.
2.2. Client Requirements. Client represents and warrants
that: (i) Client has power and authority to perform its obligation
under this Agreement, (ii) Client has the requisite level of knowledge
in the uses of Internet languages, protocols, and software to utilize
the Services provided by Conxsys, (iii) Client has secured all required
authorization(s) necessary for hypertext links to third party web
sites, (iv) Client holds all necessary licenses from the required
jurisdictions to engage in the advertising and sale of goods and services
which may be offered on the Web Site (v) the Client Content does not
and will not contain any content, materials, advertising or services
that are inaccurate or that infringe on or violate any applicable
law, regulation, or right of a third party, including, without limitation,
export laws, or any proprietary, contract, moral, or privacy right
or any other third party right, and (vi) that Client owns the Client
Content or otherwise has the right to place the Client Content on
the Web Site.
2.3. Client Activities. Client agrees not to utilize
Conxsys’ Services for any activities that (i) constitute or encourage
a violation of any applicable law or regulation, including but not
limited to the sale of illegal goods or the violation of export control
or obscenity laws, (ii) defame, impersonate, or invade the privacy
of any third party or entity, (iii) infringe the rights of any third
party, including but not limited to the intellectual property, business,
contractual or fiduciary rights of others, (iv) involve the display,
sale, distribution, or creation of any pornographic, obscene, or otherwise
offensive goods, services, material, or ideas, or promote violence
or discrimination based on, but not limited to race, sex, religion,
nationality, disability, sexual orientation, or age, (v) modify any
Conxsys or Conxsys partners copyright notices or scripts without obtaining
Conxsys’ prior written consent, (vi) provide mirroring service for
other web sites, (vii) the primary purpose is non-http compatible
file distribution, including but not limited to the distribution of
the following file types: arj, mp3, exe, tar, rar, or zip, (viii)
are in any way connected with trolling, mailbombing, IRC bots, games-emulators,
ROMs, or the transmission of “junk e-mail”, “spam”, the unsolicited
mass distribution of e-mail or with any unethical marketing practices,
(ix) who maintain an image archive or collection for display, and
(x) whose primary web site theme is related to professional wrestling,
fads, or otherwise “trendy” web sites. PLEASE REFERENCE SECTION 5.4
OF THIS AGREEMENT FOR SPECIFIC TERMINATION FEES AND PROCEDURES FOR
CLIENT’S IN VIOLATION OF THIS SECTION.
2.4. Mailing Lists. Conxsys permits clients to send
mailings to subscribers of their own mailing list. Such mailings must
have explicit instructions to the recipient on how to remove his/her
name from the list, and all requests to do so must be honored immediately.
Client agrees not to send mailings to lists provided by an outside
agency or individual. Client further agrees not to provide mailing
list services to others. Due to the nature of the Virtual Server,
Conxsys requests that all mailing lists be sent during the hours of
10pm - 3am Pacific Time. Conxsys reserves the right to terminate a
client’s mailing program, whether provided by Conxsys or not, immediately
and without notification to the client if said list causes a problem,
in Conxsys’ sole discretion, with the e-mail services of other clients.
Conxsys also reserves the right to forbid a client from utilizing
any mail-sending program that jeopardizes the mail services of other
clients. Due to the consumption of system resources and overloading
of the e-mail server, Conxsys forbids the use of Gossamer Links programs
by any of its clients.
3. License and Proprietary Rights.
3.1. Software License. Conxsys hereby grants Client
a non-exclusive, non-transferable license to use the Software in object
code form only on a server controlled by Conxsys for the sole purpose
of creating and maintaining the Web Site. Client is not being granted
any right to copy the Software, to use it on computers other than
as provided in this Agreement or utilize any trademarks or service
marks of Conxsys. CLIENT MAY NOT USE WEB PAGES OR PARTS OF WEB PAGES
GENERATED BY MEANS OF THE SOFTWARE ON ANY SERVER OTHER THAN THE VIRTUAL
SERVER. Client also acknowledges and agrees that the Software is intended
for access and use by means of web browsing software, and that Conxsys
does not commit to support any particular browsing platform. Conxsys
reserves the right at any time to revise and modify the Software,
release subsequent versions thereof and to alter features, specifications,
capabilities, functions, and other characteristics of the Software,
without notice to the Client. If any revision or modification to the
Software materially changes Client’s ability to conduct business,
Client’s sole remedy is to terminate the Agreement pursuant to Section
5 regarding termination of service.
3.2. Intellectual Property. All materials, including
but not limited to any computer software (in object code and source
code form), data or information developed or provided by Conxsys and/or
Conxsys partners under this Agreement, and any know-how, methodologies,
equipment, or processes used by Conxsys to provide the Services to
Client, including, without limitation, all copyrights, trademarks,
patents, trade secrets, any goodwill associated therein and appurtenant
thereto (collectively “Conxsys Materials”) shall remain the sole and
exclusive property of Conxsys and/or Conxsys partners. To the extent,
if any, that ownership of Conxsys Materials does not automatically
vest in Conxsys by virtue of this Agreement or otherwise, Client hereby
transfers and assigns to Conxsys all rights, title, and interest which
Client may have in and to the Conxsys Materials. Client acknowledges
and agrees that Conxsys is in the business of providing Internet access
services, and that Conxsys shall have the right to provide services
to third parties who are the same or similar to the Services provided
to Client, and to use or otherwise exploit any Conxsys Materials in
providing such services.
3.3. Proprietary Rights of Client. As between Client
and Conxsys, Client Content shall remain the sole and exclusive property
of Client, including, without limitation, all copyrights, trademarks,
patents, trade secrets, and any other proprietary rights. Except as
provided in this Section 3.3, nothing in this agreement shall be construed
to grant Conxsys any ownership right in, or license to, the Client
Content provided by Client to Conxsys. Client hereby grants to Conxsys
a non-exclusive, worldwide, royalty-free license for the Initial Term
and any Renewal Term (as those terms are hereinafter defined) to edit,
modify, adapt, translate, exhibit, publish, transmit, participate
in the transfer of, reproduce, create derivative works from, distribute,
perform, display, and otherwise use Client Content as necessary to
render the Service to Client under this Agreement.
4. Fees and Taxes
4.1. Fees. Client shall pay Conxsys a setup fee (if
any) and monthly fee as set forth in the Conxsys fee schedule for
Client’s corresponding Plan. The fee schedule may be found at http://www.conxsys.com/services/hosting/price-comparison.html
and is hereby made a part of this Agreement. Client may be eligible
for certain pre-payment discounts as more fully set forth in the fee
schedule. All such fees due to Conxsys shall be received at Conxsys
by 2:00pm (Pacific Time) on the date due (“Payment Date”).
4.2. Payments. Payments to Conxsys may be made by Credit
Card (as defined below), or in special circumstances by check or money
order. All such fees are payable in U.S. dollars only. Conxsys will
not accept international checks in foreign currency. In the event
a check is returned as unpayable, Client will be assessed a $25.00
returned check fee. Client will be sent a suspension of Services e-mail
that will grant Client fourteen (14) days to make payment.
4.3. Means of Payment. Conxsys accepts payment via
MasterCard, Visa and American Express (“Credit Card”). Credit Cards
shall be charged fourteen (14) days prior to the Payment Date as set
forth in the specific Plan to the Credit Card number given to Conxsys
at the time of registration for the Plan. Payment by Credit Card includes
the authorization to charge all future recurring fees and charges
to the Credit Card on file with Conxsys. If Client’s Credit Card is
denied, for any reason, Client will be sent a notice by e-mail. If
payment is not received at Conxsys by the Payment Date, Conxsys may
make one final attempt to charge Client’s Credit Card on or around
the Payment Date. If payment is not secured by the Payment Date, Client
will be sent a Suspension of Services e-mail that will grant Client
fourteen (14) days to pay all fees due to Conxsys.
4.4. Payment Processor. Conxsys may opt to outsource
some credit card and electronic check payments to PaySystems.com (Payment
Processor), a third-party payment processor. In the event that payments
are outsourced through Payment Processor, client agrees to abide by
Payment Processors rules and regulations for online payments as set
forth by Payment Processor and accepts those rule and regulations
as an extension of this Agreement. Client agrees to pay all monies
due charged by Payment Processor and understands that all charges
by Payment Processor are made on behalf of Conxsys. If payment is
not secured by the Payment Date, Client's site(s) will be suspended
and Client will be sent a Suspension of Services e-mail that will
grant Client fourteen (14) days to pay all fees due to Conxsys in
order to have Client's site(s) re-activated. If payment is received
after the 14-day grace period, Client will incur a re-activation fee
equal to the current setup fee for Client's hosting plan(s).
4.5. Failure to Pay. Failure of Client to fully pay
any fees on or before the Payment Date shall be deemed a material
breach of this Agreement, justifying suspension of the performance
of the Services by Conxsys, the immediate removal of all Client Content
from the Virtual Server and will be sufficient cause for immediate
termination of this Agreement by Conxsys. Any such suspension does
not relieve Client from paying past due fees plus interest thereon
at a rate of 1.5% per month of the maximum allowable rate under applicable
law, and in the event of collection enforcement, Client shall be liable
for any costs associated with such collection, including, but not
limited to, legal costs, attorneys’ fees, court costs and collection
agency fees.
4.6. Taxes. These fees are exclusive of any and all
local sales, use, value added, excise, transfer, privilege, duty and
any other taxes or duties, whether international, national, state
or local, however designated or assessed with respect to the Services
provided under this Agreement; excluding, income taxes on profits
which may be levied against Conxsys. Any such taxes shall be itemized
for Client.
5. Term, Termination & Renewal.
5.1. Term. Upon acceptance by Conxsys, this Agreement
shall remain in effect for the time frame set forth in the Client’s
Plan (“Term”), unless otherwise terminated in accordance with this
Agreement.
5.2. Termination for Breach. Except as otherwise provided
herein, either party may terminate this agreement on fifteen (15)
days notice if the other party has materially breached or is otherwise
not in compliance with any provision of the Agreement, and such breach
or noncompliance is not cured within such fifteen (15) day period.
Conxsys reserves the right to immediately suspend any access to the
Site until such breach or noncompliance is cured.
5.3. Termination for Convenience. Either party may
terminate the Agreement for any reason with thirty (30) days written
notice to the other party. In the event of termination under this
section by Client, Client shall not be entitled to a refund of any
fees paid for the current Term. In the event of termination under
this section by Conxsys, Client shall be entitled to a pro-rata refund
of the fees paid during the current Term, but only in the event that
Client was not in breach of the Agreement at the time notice of termination
was given by Conxsys.
5.4. Termination for Breach of Section 2.3. Notwithstanding
the foregoing, Conxsys may immediately terminate this Agreement and
remove Client’s Web Site from the Virtual Server if it is determined,
in Conxsys’ sole discretion, that Client has breached Section 2.3
of the Agreement. Any termination under this Section 5.4 shall take
effect immediately and Client expressly agrees that it: (i) shall
not have any opportunity to cure, (ii) shall not be entitled to a
refund of any fees paid to Conxsys, and (iii) shall promptly pay up
to a $500.00 clean-up / disconnection fee to Conxsys.
5.5. Renewal. The Term of this Agreement shall automatically
be renewed the same Term as set forth in the Client’s Plan, unless
prior to fifteen (15) days in advance of the end of the term, Client
either: (i) submits virtual authorization to change Terms or (ii)
sends e-mail to billing@conxsys.com containing account name, password,
and reason for cancellation.
6. Conxsys Limited Warranty
6.1. 30-Day Money Back Warranty. Conxsys hereby extends
an unconditional money-back guarantee to Client during the first thirty
(30) days of the initial term of the Client’s Plan, beginning upon
completion of the setup of the Client’s Plan. Client shall provide
Conxsys with written notice via e-mail of Client’s desire to terminate
Services prior to the expiration of the thirty days. The written cancellation
notice shall entitle the client to a refund of any monies paid for
monthly fees. All setup fees are excluded from this warranty.
6.2. Price Freeze Warranty. For as long as Client utilizes
Conxsys’ services as set forth in this Agreement and Client is not
in breach of this Agreement, Conxsys agrees not to raise the Plan
fees in place at the time of this Agreement. This price freeze warranty
is only applicable to this account registration and upon receipt by
Conxsys of the full amount of Client’s fees.
7. Warranty Disclaimer, Limitation on Liability &
Indemnity
7.1. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY
SET FORTH IN SECTION 6, CONXSYS MAKES NO WARRANTIES HEREUNDER, AND
CONXSYS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. CONXSYS’ AGENTS HAVE NO AUTHORITY TO GIVE
SUCH WARRANTIES ON BEHALF OF CONXSYS.
7.2. Limitation on Liability. IN NO EVENT SHALL CONXSYS
BE LIABLE TO CLIENT OR TO CUSTOMERS OF CLIENT FOR ANY INDIRECT, SPECIAL,
CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR NONCONTRACTURAL DAMAGES OR
LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE SERVICES
PROVIDED BY CONXSYS, INCLUDING WITHOUT LIMITATION, RELATED TO THE
PERFORMANCE OR BREACH THEREOF, EVEN IF CONXSYS HAS BEEN ADVISED OF
THE POSSIBILITY THEREOF. CONXSYS’ LIABILITY, IF ANY, TO CLIENT OR
TO CUSTOMERS OF CLIENT HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL
AFTER TAX PROFITS OF CONXSYS UNDER THIS AGREEMENT.
IN NO EVENT SHALL CONXSYS BE LIABLE TO CLIENT OR TO
CUSTOMERS OF CLIENT FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY
FAILURE OR DELAY OF CONXSYS IN THE DELIVERY OF SERVICES UNDER THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, DELAYS CAUSED BY ACTS OF
GOD, FIRE, WAR, TERROR ATTACKS, RIOTS, STRIKES, QUARANTINES OR EMBARGOES.
7.3. Indemnity. Client agrees to indemnify, defend
and hold harmless Conxsys, its directors, officers, employees and
agents, and defend any action brought against same with respect to
any claim, demand, cause of action, debt or liability, including attorneys’
fees, to the extent that such action is based upon a claim that: (i)
if true, would constitute a breach of any of Client’s representation,
warranties or agreements hereunder, (ii) arises out of the negligence
or willful misconduct of Client, or (iii) any of the Client Content
to be provided by Client hereunder or other material on the Web Site
infringes or violates any rights of third parties, including without
limitation, rights of publicity, rights of privacy, patents, copyrights,
trademarks, trade secrets and/or licenses.
8. Miscellaneous Provisions.
8.1. Nature and Survival of Representations and Warranties.
All statements contained in this Agreement delivered by any party
hereto shall be deemed representations and warranties hereunder. All
representations, warranties and agreements made in and under this
Agreement or pursuant hereto shall survive the termination of this
Agreement.
8.2. Binding Nature of Agreement; Assignment. Except
as otherwise provided herein, all the terms and provisions of this
Agreement shall be binding upon and shall insure to the benefit of
the parties hereto and their respective successors and assigns, except
that Client may not assign or transfer its rights or obligations under
or interest in this Agreement without the prior written consent of
Conxsys. Conxsys may, in its sole discretion, assign or transfer its
rights or obligations under or interest in the Agreement.
8.3. No Third-Party Beneficiaries. The term and provisions
of this Agreement are intended solely for the benefit of each party
hereto and their respective successors and assigns, and it is not
the intention of the parties to confer third-party beneficiary rights
upon any other person.
8.4. Publicity. Conxsys may refer to the name of the
Client, the Client’s product(s) or the business in which the product(s)
are used in their customer listings, on their web site, in a customer
profile, or in a press release, without the consent of the Client.
8.5. Governing Law; Venue. This agreement shall be
governed by and shall be construed, interpreted, and enforced in accordance
with the laws of the State of California, without reference to principles
of conflicts of law. The parties agree that the sole and exclusive
venue for any disputes arising hereunder shall be in a state or federal
trial court located in Los Angeles County, California.
8.6. Alteration. No alteration, modification, or change
of this agreement shall be valid unless made in writing and executed
by the parties hereto.
8.7. Attorney’s Fees. In the event of any litigation
between the parties hereto arising from or related to a party’s performance
under or breach of this Agreement, the prevailing party in any such
action shall be entitled to and shall receive from the adverse party,
in addition to any relief granted by a court of law, their reasonable
attorney’s fees and other costs and expenses incurred in prosecuting
or opposing the prosecution of such action, as the case may be.
8.8. No Waiver. No failure or delay by any party hereto
in exercising any right, power, or privilege hereunder (and no course
of dealing between or among any of the parties) shall operate as a
waiver of any right, power, or privilege hereunder. No waiver of any
default on any one occasion shall constitute a waiver of any subsequent
or other default. No single or partial exercise of any right, power,
or privilege shall preclude the further or full exercise thereof.
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