This Web Site Hosting Agreement is by and between Nexigen
Communications LLC., a Kentucky Limited Liability Company, herein after
referred to as "Nexigen", and you, the client/customer, being a duly
authorized agent, and individually, and hereinafter referred to
collectively as "You" and "Your". This Agreement sets forth the terms
and conditions of Your use of Nexigen's Web Site Hosting ('Web Hosting')
services and represents the entire agreement between You and Nexigen. By
using Nexigen's Web Hosting services, You acknowledge that You have
read, understand and agree to be bound by all the terms and conditions
of this Agreement as well as the Hosting Acceptable Use Policy ('HAUP'),
incorporated herein by reference, and any changes, additions, and/or
addendums, hereinafter collectively identified and referred to as
"Agreement" that Nexigen may make in the future.
Services
Nexigen agrees to provide services to You in exchange for your payment for
said services, your execution and compliance with this agreement, and your
compliance with Nexigen's Hosting Acceptable Use Policy. Provision of
Nexigen's services shall commence once Nexigen has received your payment for
web hosting services with the check box completed which indicates your
acceptance of this policy. Accounts will be activated as soon as
administratively possible.
Fees
Payment shall be due upon account activation. Payment not received by the
twentieth (20 th ) day from the date of account activation ("due date")
shall be subject to a 1.5% late payment fee per month and any unpaid balance
shall incur interest at the rate of 1.5% per month or part thereof, attorney
and collection fees until paid in full. Payment is non-refundable.
Additional usage over the stated allotments shall be invoiced at the
current rates for service on the first of the month and due upon receipt.
Payments for additional services not received on or before the twentieth day
of the month ("due date") shall be subject to a 1.5% late payment fee per
month and interest at the rate of 1.5% per month or part thereof until paid
in full. Any unpaid balance shall also incur attorney and collection fees.
In the event that payment is not received on or before the tenth (10 th )
day after the due date shall result in your account being suspended and/or
terminated. Reactivation of accounts suspended for non-payment will be
subject to a reactivation fee of $35.00 upon account being paid in full.
Term of Agreement; Modifications
Unless written notification of Your intent to terminate this Agreement is
received by Nexigen no later than ten (10) days prior to the date of
termination of the Agreement, then this Agreement shall automatically renew
for the specified term and Nexigen will bill you, at Nexigen's then current
rates. In the event this Agreement is terminated, moving your web site off
of the Nexigen hosting servers is your responsibility. Nexigen will not
transfer or FTP your web site to another provider. Modifications or
amendments to this Agreement shall be effective, incorporated herein by
reference and made a part hereof, and which you agree to be bound thereby
twenty (20) days from the date of written notification from Nexigen.
Description of Service
You are responsible for ensuring that your web site conforms to all
administrative, local, state, federal, and international laws and
regulations as well as the HAUP and any insurance requirements. Further, you
are responsible for ensuring the legal copyright to any images, text, or
other web site elements that are not provided by Nexigen. Nexigen takes no
responsibility for information you provide on Nexigen's servers and you
agree that you will indemnify and hold harmless Nexigen from any and all
claims, cause of actions, damages whatsoever, including, but without
limitation to attorney fees and court costs as a result of the information
you provided.
Your Obligations
Inaccurate, false, misleading or incomplete information or failure to
correct or notify Nexigen of any change within five (5) business days from
the date of any change or upon inquiry of Nexigen will constitute a material
breach of this Agreement and your service will be terminated. In the event
that Nexigen has reasonable grounds to suspect that your information is
inaccurate, false, misleading or incomplete Nexigen has the right, in its
sole discretion to terminate its Web Hosting services and close your
account.
You warrant that each application You make is being done in good faith
and that You have no knowledge of it infringing upon or conflicting with the
legal rights of anyone or anyone's trademark or trade name. You also warrant
that the web site being hosted by Nexigen will not be used in connection
with any illegal or immoral activity.
Nexigen's Rights
Nexigen explicitly reserves the right and sole discretion to: a. Censor any
web site hosted on its Web Hosting servers that, in Nexigen's sole
discretion, is deemed inappropriate; b. Review every Web Hosting account for
excessive space and bandwidth utilization and to terminate or apply
additional fees to those accounts that exceed allowed levels; c. Terminate
Your Web Hosting service for unsolicited, commercial e-mailing (i.e., SPAM);
illegal access to other computers or networks (i.e., hacking); distribution
of Internet viruses or similar destructive activities; non-payment of fees;
a violation of HAUP; and other activities whether lawful or unlawful that
Nexigen determines to be harmful to its other customers, operations, or
reputation; or d. Terminate Your Web Hosting service if the contents of Your
web site result in, or are the subject of, legal action or threatened legal
action, against Nexigen or any of its affiliates or partners, without
consideration for whether such legal action or threatened legal action is
eventually determined to be with or without merit.
You agree to indemnify and hold harmless Nexigen for any complications
arising out of your use of Nexigen's Web Hosting services, including actions
Nexigen chooses to take to remedy your improper or illegal use of a web site
hosted by Nexigen. You agree you will not be entitled to a refund of any
fees paid to Nexigen if, for any reason, Nexigen takes corrective action
with respect to your improper or illegal use of its Web Hosting services.
Dispute Resolution Policy
You agree that if a dispute arises as a result of one or more web sites
Nexigen is hosting for You, You will indemnify, defend and hold Nexigen
harmless for damages arising out of such dispute. You also agree that if
Nexigen is notified that a complaint has been filed with any governmental,
administrative or judicial body, regarding a web site hosted by Nexigen,
that Nexigen, in its sole discretion, may take whatever action Nexigen deems
necessary regarding further modification, assignment of and/or control of
the web site to comply with the actions or requirements of the governmental,
administrative or judicial body until such time as the dispute is settled.
Limitation of Liability
You agree that Nexigen's entire liability to you under this Agreement, and
Your only remedy, in connection with any service provided by Nexigen to you
under this Agreement, and for any breach of this Agreement by Nexigen, shall
be limited to the fees you paid to Nexigen for Web Hosting services.
Indemnity
You agree to release, defend, indemnify and hold harmless Nexigen and its
contractors, agents, employees, officers, directors, owners, managers, and
affiliates from and against any losses, damages or costs, including
reasonable attorney's fees, resulting from any claim, action, proceeding,
suit or demand arising out of or related in any way to Your account with
Nexigen and/or Your use of the Web Hosting services provided by Nexigen.
Disclaimer of Warranties
NEXIGEN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Severability
You agree that the terms of this Agreement are severable. If any part of
this Agreement is determined to be unenforceable or invalid, that part of
the agreement will be interpreted in accordance with applicable law as
closely as possible, in line with the original intention of both parties to
the Agreement. The remaining terms and conditions of the Agreement will
remain in full force and effect.
Venue; Waiver of Trial by Jury
THIS AGREEMENT SHALL BE DEEMED ENTERED INTO IN THE STATE OF KENTUCKY . THE
LAWS AND JUDICIAL DECISIONS OF KENTUCKY SHALL BE USED TO DETERMINE THE
VALIDITY, CONSTRUCTION, INTERPRETATION, AND LEGAL EFFECT OF THIS AGREEMENT.
YOU AGREE THAT ANY ACTION RELATING TO OR ARISING OUT OF THIS AGREEMENT SHALL
BE BROUGHT IN THE COURTS OF BOONE COUNTY , KENTUCKY . YOU AGREE TO WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY PROCEDING THAT TAKES PLACE RELATING TO OR
ARISING OUT OF THIS AGREEMENT.
Notices
You agree that all notices (except for notices concerning breach of this
Agreement) from Nexigen to you may be posted on our web site. Notices
concerning breach will be sent either to the email or postal address you
have on file with Nexigen. In either case, delivery shall be deemed to have
been made five (5) days after the date sent.
Notices from You to Nexigen shall be made either by email, sent to the
address we provide on our web site, or first class mail to our address at:
Nexigen Communications, LLC., PO BOX 243, Florence, KY 41022.