OccHosting
Terms Of Service, owned by Visual Solutions Group (VSG),
hence shall be referred to as Occ/VSG) owns and has developed
and operates a web stores and web storage including transfer
service (Web Hosting "Services") on Web Servers
with access over the Internet. You wish to use these
Services as a registered "User". To sign up
as a User and to use the Services you must be at least
18 (eighteen) years of age.
1.
Order, Acceptance and Service.
a. When
clicking "accept" and when Accepted
b
y OCC/VSG,
the Order submitte
d b
y Customer
creates a contract between Customer and OCC/VSG, consisting
of the Order, the applicable Service Description and
these Terms of Service. An Order is “Accepted” by OCC/VSG when (i) with respect to
Orders submitted online, OCC/VSG provides Services
in response to the Order or bills Customer for payment
and (ii) with respect to Orders reduced to writing
and signed on an approved OCC/VSG form, when an authorized
representative of OCC/VSG executes and delivers such
form signe
d b
y Customer.
b.
OCC/VSG will provide, and Customer will purchase and pay for,
the Services specified in the Order for the service fees
specified in the Order and the applicable Service Description
(the “Service Fees”).
c.
In connection with any Hosting Services, Customer will not use
storage space in excess of the storage limits established
for the Services in the Service Descriptions, plus any
storage space purchase
d b
y Customer.
If Customer uses storage space in excess of such amounts,
OCC/VSG may, without limiting its other rights or remedies,
assess Customer with additional fees.
d.
In connection with any Hosting Services, if Customer’s actual
bandwidth usage in any month exceeds the limit in the
Service Description, Customer will pay OCC/VSG such additional
fees as may be specified in the Service Description.
2.
Fees, Taxes and Payment. Customer will pay to OCC/VSG the Service Fees in the manner set
forth in the Order. OCC/VSG may increase the Service
Fees (i) in the manner permitted
in the Service Description and (ii) at any time on or
after expiration of the Initial Term by providing ten
(10) days prior written notice thereof to Customer. The
Service Fees do not include any applicable sales, use,
revenue, excise or other taxes impose
d b
y any
taxing authority with respect to the Services or any
software provided hereunder (excluding any tax on OCC/VSG's net
income). All such taxes will be added to OCC/VSG's invoices
for the Service Fees as separate charges to be pai
d b
y Customer.
All fees are fully earned when due and non-refundable
when paid. Unless otherwise specified, invoices for the
Service Fees and related charges shall be due and payable
within 25 days after the date of the invoice. If any
invoice is not paid within 25 days after the date of
the invoice, OCC/VSG may charge Customer a late fee of
$15 for such invoice; in addition any amounts payable
to OCC/VSG not paid when due will bear interest at the
rate of one and one half percent (1.5%) per month or
the maximum rate permitte
d b
y applicable
law, whichever is less. Delinquent accounts may be suspended
at OCC/VSG's sole discretion. In the event of a suspension of the
Services, upon a reactivation request by Customer, Customer
shall pay OCC/VSG a reactivation fee in addition to full
payment of the outstanding balance due. Reactivation
of services will only be performed during OCC/VSG's normal
business hours (Monday through Friday,
9:00 am - 6:00 p.m.
, Eastern
Tim
e, excluding holidays.) If OCC/VSG collects any payment due at
law or through an attorney at law or under advice therefrom or
through a collection agency, or if OCC/VSG prevails in
any action to which the Customer and OCC/VSG are parties,
Customer will pay all costs of collection, arbitration
and litigation, including, without limitation, all court
costs and OCC/VSG's reasonable
attorneys' fees. If any Customer payment is returned
for insufficient funds OCC/VSG will impose a processing
charge of $25. If two or more Customer payments are returned
for insufficient funds in any 6 month period, OCC/VSG
in its sole discretion may require alternative payment
methods for all future Customer payments including, without
limitation, credit card, money order, or cashier's check.
3.
Term and Termination.
.
Hosting
Services will commence on the Effective Date indicated
in the Order and continue for the duration of the Initial
Term. Thereafter, the Order will automatically renew
for successive one month periods unless the Order is
earlier terminated in accordance with its terms or either
party gives written notice to the other party of non-renewal
at least 30 days prior to expiration of the then-current
term.
To terminate your
account at the end of the term You must notify us in
writing, email, fax or filling out the cancel account
form located on our website at least 30 days prior to
the termination date
a.
Either party may terminate this Agreement immediately upon the
occurrence of any one or more of the following events:
(i) the other party fails to
pay when due any amounts required to be paid under this
Agreement; (ii) the other party breaches any material
term or provision of this Agreement (other than a breach
described in subsection (i) above), and if capable of cure, such breach remains uncured
30 days after the non-breaching party gives written notice
thereof to the breaching party; or (iii) the other party
becomes insolvent, makes an assignment for the benefit
of its creditors, institutes or becomes subject to any
proceeding under any bankruptcy or similar laws for the
relief of debtors, or seeks the appointment of, or becomes
subject to the appoint of, any trustee or receiver for
all or any portion of such party’s assets
b.
OCC/VSG may terminate this Agreement (i)
if the Services are prohibite
d b
y applicable
law, or become impractical or unfeasible for any technical,
legal or regulatory reason, by giving Customer as much
prior notice as reasonably practicable or (ii) immediately
by giving written notice to Customer, if OCC/VSG determines
in good faith that Customer’s use of the Customer
Web site or the Customer Content violates the Acceptable
Use Policy.
c.
Upon termination of this Agreement for any cause or reason whatsoever,
neither party shall have any further rights or obligations
under this Agreement, except as expressly set forth herein.
The provisions of Sections 3(d), 4, 8, 10, 11, 13 and 15 of this Agreement shall survive the expiration or termination
of this Agreement for any cause or reason whatsoever,
and, notwithstanding the expiration or termination of
this Agreement, the parties shall each remain liable
to the other for any indebtedness or other liability
theretofore arising under this Agreement. Termination
of this Agreement and retention of pre-paid fees and
charges shall be in addition to, and not be in lieu of,
any other legal or equitable rights or remedies to which
OCC/VSG may be entitled.
d.
With respect to Non-Prepaid Plans, within 30 days after the termination
of this Agreement, Customer will pay the Termination
Charge to OCC/VSG unless (i)
OCC/VSG terminated the Order under Section 3(c) or (ii) Customer terminated the Order under Section 3(b). With respect to Prepaid
Plans, Customer will pay the Termination Charge as provided
in the Service Description. The parties agree that the
Termination Charge constitutes consideration for OCC/VSG’s time,
effort and expense in preparing and reserving the capacity
to perform its obligations hereunder, as actual damages
are difficult to ascertain. If Customer terminates the
Order in accordance with Section 3(b), or if OCC/VSG terminates the Order under Sections 3(c)(i) or 12(c), OCC/VSG shall return to Customer, and Customer shall accept,
as Customer’s sole and exclusive remedy for OCC/VSG’s breach
of the Order, any Service Fees paid in advance by Customer
hereunder attributable to Services not yet rendered as
of the date of termination.
4.
Customer’s Representations and Warranties. Customer hereby represents and warrants to OCC/VSG, and agrees
that during the Term Customer will ensure that: (a) Customer
is the owner or valid licensee of the Customer Content
and each element thereof, and Customer has secured all
necessary licenses, consents, permissions, waivers and
releases for the use of the Customer Content and each
element thereof, including without limitation, all trademarks,
logos, names and likenesses contained therein, without
any obligation by OCC/VSG to pay any fees, residuals,
guild payments or other compensation of any kind to any
Person; (b) Customer’s use, publication and display
of the Customer Content will not infringe any copyright,
patent, trademark, trade secret or other proprietary
or intellectual property right of any Person, or constitute
a defamation, invasion of privacy or violation of any
right of publicity or any other right of any Person,
including, without limitation, any contractual, statutory
or common law right or any “moral right”
or similar right however denominated; (c) Customer
will comply with all applicable laws, rules and regulations
regarding the Customer Content and the Customer Web
site and will use the Customer Web site only for lawful
purposes; (d) Customer has used its best efforts to
ensure that the Customer Content is and will at all
times remain free of all computer viruses, worms, trojan horses and other malicious code; and (e) Customer
will use the Services only for business purposes and
not for any family, household or personal use.
5.
License to OCC/VSG. Customer hereby grants to OCC/VSG a non-exclusive, royalty-free,
worldwide right and license during the Term to do the
following to the extent necessary in the performance
of Services under the Order: (a) digitize, convert, install,
upload, select, order, arrange, compile, combine, synchronize,
use, reproduce, store, process, retrieve, transmit, distribute,
publish, publicly display, publicly perform and hyperlink
the Customer Content; and (b) make archival or back-up
copies of the Customer Content and the Customer Web site.
Except for the rights expressly granted above, OCC/VSG
is not acquiring any right, title or interest in or to
the Customer Content, all of which shall remain solely
with Customer.
6.
OCC/VSG’s Acceptable Use Policy. Customer will abide by, and utilize the Services and the Customer
Web site only in accordance with, the Acceptable Use
Policy (the “Acceptable Use Policy”) that
OCC/VSG posts on its Web site, as
such Acceptable Use Policy may be change
d b
y OCC/VSG from time to time. The Acceptable Use Policy is hereby
incorporated herein and made a part hereof by this
reference. Customer shall impose the Acceptable Use
Policy on its customers and End Users to the extent
necessary to ensure their compliance. Customer shall
familiarize itself with the Acceptable Use Policy and
periodically access OCC/VSG’s Web
site to determine if OCC/VSG has made any changes thereto.
7.
Customer’s Responsibilities.
.
Customer is solely responsible for the quality, performance and
all other aspects of the Customer Content and the goods
or services provided through the Customer Web site.
a.
Customer will cooperate fully with OCC/VSG in connection with
OCC/VSG’s performance
of the Services. Customer must provide any equipment
or software that may be necessary for Customer to use
the Services. Delays in Customer’s performance
of its obligations under this Agreement will extend the
time for OCC/VSG’s performance
of its obligations that depend on Customer’s performance
on a day for day basis. Customer will notify OCC/VSG
of any change in Customer’s mailing address, telephone,
e-mail or other contact information.
b.
Customer assumes full responsibility for providing End Users with
any required disclosure or explanation of the various
features of the Customer Web site and any goods or services
described therein, as well as any rules, terms or conditions
of use.
c.
Customer will provide OCC/VSG with a registered domain name for
the Customer Web site, or, upon Customer’s request
and subject to OCC/VSG’s Domain Name Registration Terms and Conditions the provisions of which
are incorporated herein by this reference, OCC/VSG will
register an Internet domain name on behalf of Customer.
d.
Because the Hosting Services permit Customer to electronically
transmit or upload content directly to the Customer Web
site, Customer shall be fully responsible for uploading
all content to the Customer Web site and supplementing,
modifying and updating the Customer Web site. Customer
is also responsible for ensuring that the Customer Content
and all aspects of the Customer Web site are compatible
with the hardware and software use
d b
y OCC/VSG
to provide the Hosting Services, as the same may be
change
d b
y OCC/VSG
from time to time. Specifications for the hardware
and software use
d b
y OCC/VSG
to provide the Hosting Services will be available on
OCC/VSG’s Web site. Customer shall periodically access
OCC/VSG’s Web site to determine if OCC/VSG has made any
changes thereto. OCC/VSG shall not be responsible for
any damages to the Customer Content, the Customer Web
site or other damages or any malfunctions or service
interruptions cause
d b
y any failure of the Customer Content or any aspect of the Customer
Web site to be compatible with the hardware and software
use
d b
y OCC/VSG
to provide the Hosting Services.
e.
Unless the applicable Service Description provides otherwise,
Customer is solely responsible for making back-up copies
of the Customer Web site and Customer Content.
8.
OCC/VSG Intellectual Property.
.
OCC/VSG hereby grants to Customer a non-exclusive, non-transferable,
royalty-free license, exercisable solely during the term
of this Agreement, to use applicable OCC/VSG Technology
solely for the purpose of accessing and using the Services.
Customer may not use the OCC/VSG Technology for any purpose
other than accessing and using the Services. Except for
the rights expressly granted above, this Agreement does
not transfer from OCC/VSG to Customer any OCC/VSG Technology,
and all rights, titles and interests in and to the OCC/VSG
Technology shall remain solely with OCC/VSG. Customer
shall not, directly or indirectly, reverse engineer,
decompile, disassemble or otherwise attempt to derive
source code or other trade secrets from any of the OCC/VSG
Technology.
a.
OCC/VSG’s trademarks, tradenames, service marks, logos, other names and marks,
and related product and service names, design marks and
slogans are the sole and exclusive property of OCC/VSG.
Customer may not use any of the foregoing in any advertising,
publicity or in any other commercial manner without the
prior written consent of OCC/VSG. OCC/VSG shall maintain
and control ownership of all Internet protocol numbers
and addresses that may be assigne
d b
y OCC/VSG
to Customer. OCC/VSG may, in its sole discretion, change
or remove any and all such Internet protocol numbers
and addresses.
b.
Any feedback, data, answers, questions, comments, suggestions,
ideas or the like which Customer sends to OCC/VSG relating
to the Services will be treated as being non-confidential
and non-proprietary. OCC/VSG may use, disclose or publish
any ideas, concepts, know-how or techniques contained
in such information for any purpose whatsoever.
9.
Limited Warranty.
.
OCC/VSG represents and warrants to Customer that the Services
will be performed (i) in a
manner consistent with industry standards reasonably
applicable to the performance thereof; (ii) at least
at the same level of service as provide
d b
y OCC/VSG
generally to its other customers for the same services;
and (iii) in compliance in all material respects with
the applicable Service Descriptions. Customer will
be deemed to have accepted such Services unless Customer
notifies OCC/VSG within 30 days after performance of
any Services of any breach of the foregoing warranties.
Customer’s sole and exclusive remedy, and OCC/VSG’s sole obligation, for breach of the foregoing
warranties shall be for OCC/VSG, at its option, to
re-perform the defective Services at no cost to Customer,
or, in the event of interruptions to the Services cause
d b
y a breach of the foregoing warranties, issue Customer a credit
in an amount equal to the current monthly Service Fees
pro rate
d b
y the
number of hours in which the Services have been interrupted.
OCC/VSG may provision the Services from any of its
data centers and may from time to time re-provision
the Services from different data centers.
a.
The foregoing warranties shall not apply to performance issues
or defects in the Services (i)
cause
d b
y factors
outside of OCC/VSG’s reasonable
control; (ii) that resulted from any actions or inactions
of Customer or any third parties; or (iii) that resulted
from Customer’s equipment or any third-party
equipment not within the sole control of OCC/VSG.
b.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, OCC/VSG MAKES NO REPRESENTATIONS
OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT
TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT
OF THIRD-PARTY RIGHTS, AND OCC/VSG HER
EB
Y EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY
SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS
IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER.
OCC/VSG DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
10.
Limitation of Liability.
.
IN NO EVENT WILL OCC/VSG’S LIABILITY IN CONNECTION WITH THE SERVICES,
ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER
CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS,
BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE
SERVICE FEES PAID TO OCC/VSG BY CUSTOMER DURING THE 12-MONTH
PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO
SUCH LIABILITY.
a.
OCC/VSG CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR
TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED
OR TRANSMITTED VIA THE INTERNET. OCC/VSG WILL NOT BE
LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION,
ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT
DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED,
RECEIVED OR STORED ON ITS SYSTEM.
b.
EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY
WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST
PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS
OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES
OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES
OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY
WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR
IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE
OF ANY ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 11 AND
12) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD
PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH CLAIM OR DAMAGES.
c.
The limitations contained in this Section 10 apply to all causes
of action in the aggregate, whether based in contract,
tort or any other legal theory (including strict liability),
other than claims based on fraud or willful misconduct.
The limitations contained in Section 10(c) shall not apply to liability
arising on account of a party’s breach of Section 13 or to Customer’s
indemnification obligations under Section 11.
11.
Indemnification of OCC/VSG. Customer shall defend, indemnify and hold harmless OCC/VSG, its
affiliates and their respective present, former and future
officers, directors, employees and agents, and their
respective heirs, legal representatives, successors and
assigns (collectively the “OCC/VSG Indemnitees”), from
and against any and all losses, damages, costs, liabilities
and expenses (including, without limitation, amounts
paid in settlement and reasonable attorneys’ fees)
which any of the OCC/VSG Indemnitees may
suffer, incur or sustain resulting from or arising out
of (i) Customer’s breach of any representation, warranty,
or covenant contained in the Agreement, (ii) the Customer
Content, the Customer Web site or any End User’s
use of the Customer Content or the Customer Web site,
(iii) violation by Customer or any of its officers, directors,
employees or agents of the Acceptable Use Policy or any
applicable law, (iv) claims or actions of third parties
alleging misappropriation of trade secrets or infringement
of patents, copyrights, trademarks or other intellectual
property rights arising from the use, display or publication
of Customer’s domain names, the Customer Web site,
the Customer Content, or the use of the Services in combination
with hardware, software or content not provide
d b
y OCC/VSG,
(v) claims or actions by third parties relating to
or arising out of Customer’s use of the Services,
and (vi) any failure of the Customer Content or any
aspect of the Customer Web site to be compatible with
the hardware or software use
d b
y OCC/VSG to provide the Services, including any damage to OCC/VSG’s servers or other hardware caused thereby.
12.
Indemnification of Customer.
.
Subject to Section 10, OCC/VSG shall, at its own expense, indemnify, defend and hold
Customer harmless from any claim or suit alleging that
the Services infringe any United States patent, copyright
or trademark existing on the Effective Date, or that
OCC/VSG has knowingly misappropriated any trade secret
or other intellectual property right of any other Person,
including any losses, damages or expenses arising from
any such claim or suit. Customer agrees to cooperate
with and assist OCC/VSG in the defense or settlement
of any such claim or suit. Customer shall be reimbursed
for all reasonable out-of-pocket expenses incurred in
providing any cooperation or assistance requeste
d b
y OCC/VSG,
but OCC/VSG will not be liable for any costs or expenses
incurred without its prior written authorization.
a.
Promptly after receipt by Customer of a threat of any claim or
suit, or a notice of the commencement or filing of any
claim or suit, against which Customer may be indemnified
hereunder, Customer shall give written notice thereof
to OCC/VSG, provided that failure to give or delay in
giving such notice to OCC/VSG shall not relieve OCC/VSG
of any liability it may have to Customer hereunder, except
to the extent that the defense of such claim or suit
is prejudiced thereby. OCC/VSG shall have sole control
of the defense, and of all negotiations for settlement,
of such claim or suit. Subject to the foregoing, Customer
may participate in the defense of any such claim or suit
at Customer’s own expense.
b.
If an injunction, decree or judgment is, or OCC/VSG believes in
its sole discretion is likely to be, entered providing
that Customer may not use the Services as contemplated
in this Agreement without violating the intellectual
property rights of a third party, OCC/VSG may, at its
sole option and expense, either (i)
procure for Customer the right to use the Services or
affected part thereof as provided in this Agreement;
(ii) replace the Services or affected part thereof with
other non-infringing services or modify the Services
or affected part thereof so as to be non-infringing;
or (iii) terminate this Agreement upon written notice
to Customer.
c.
Notwithstanding Section 12(a), OCC/VSG assumes no liability for infringement claims arising
from (i) use of the Services
with third-party products or services where the third-party
products or services cause the infringement, (ii) any
modification of the Services not authorize
d b
y OCC/VSG
in writing, (iii) the Customer Content, the Customer
Web site or any content, data or information provided
or supplie
d b
y an
End User, or (iv) Customer’s use of any third-party
software provided hereunder. THE FOREGOING DEFENSE AND
INDEMNIFICATION
PROVISIONS
STATE
THE ENTIRE LIABILITY AND OBLIGATION OF OCC/VSG, AND THE EXCLUSIVE REMEDY
OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY
THE SERVICES PROVIDED HEREUNDER.
13.
Confidentiality; Non-Solicitation.
.
Each party will not, without the prior written consent of the
other party, use or disclose to any Person any Proprietary
Info
rmation
of the other party disclosed or made available to it,
except for use of such Proprietary
Info
rmation as required in connection with the performance of its
obligations or use of the Services hereunder. Subject
to Section 13(b), each party will (i) treat the Proprietary
Info
rmation
of the other party as secret and confidential, (ii)
limit access to the Proprietary
Info
rmation of the party to those of its employees who require it
in order to effectuate the purposes of this Agreement,
and (iii) not disclose the Proprietary
Info
rmation of the other party to any other Person without the prior
written consent of the other party.
a.
Notwithstanding Section 13(a), the following shall not be considered Proprietary
Info
rmation:
(i) any information that the
receiving party can demonstrate by written documentation
was within its legitimate possession prior to the time
of disclosure by the disclosing party; (ii) any information
that was in the public domain prior to disclosure by
the disclosing party as evidence
d b
y documents that were published prior to such disclosure; (iii)
any information that, after disclosure by the disclosing
party, comes into the public domain through no fault
of the receiving party, (iv) any information that is
disclosed to the receiving party without restriction
by a third party who has legitimate possession thereof
and the legal right to make such disclosure; or (v) any
information that, two years after expiration or termination
of this Agreement, does not constitute a trade secret
under applicable law.
b.
Each party acknowledges that disclosure of any aspect of the Proprietary
Info
rmation of the other party shall immediately give rise to continuing
irreparable injury to the other party inadequately
compensable in damages at law, and, without prejudice
to any other remedy available to the other party, shall
entitle the other party to injunctive or other equitable
relief. Upon expiration or termination of this Agreement
for any reason, each party shall promptly return to
the other party all Proprietary
Info
rmation
of the other party (including all copies thereof) in
its possession or control.
c.
During the term of this Agreement and for two years following
expiration or termination of this Agreement, Customer
will not, directly or indirectly, solicit or recruit
the services of any employee of OCC/VSG performing services
under this Agreement, while such employee is employe
d b
y OCC/VSG
and for a period of six months after such employee
has left the employment of OCC/VSG.
14.
Optional Services. In connection with any Optional Services:
.
Customer must provide OCC/VSG with any information, login identifications, passwords or
other information or access to facilities that OCC/VSG
may reasonably require to provide the
Optional
Services
OCC/VSG
will have no responsibility for any delays or increased
costs or expenses associated with Customer’s
failure to provide any of such information. If Customer
does not provide any such information or access requeste
d b
y OCC/VSG
within fifteen (15) days of OCC/VSG’s request therefor,
OCC/VSG may terminate the Order and retain any Service
Fees paid.
a.
If Customer requested that OCC/VSG perform the Optional Services
by a particular deadline or that OCC/VSG achieve some
particular result or outcome, OCC/VSG will use commercially
reasonable best efforts to perform the Services by any
such deadline and achieve the result requeste
d b
y Customer;
provided, however, that (i)
OCC/VSG’s ability to perform the Services is subject to
Customer’s provision of information and access
as provided above and (ii) OCC/VSG has no liability
or obligation to complete the Services by any deadline
or achieve any particular outcome or result
b.
If Customer wishes to convey documents or files to OCC/VSG, Customer
should deliver to OCC/VSG a copy or duplicate of such
documents or files and not the original copy. OCC/VSG
will not return to Customer any documents or files conveyed
to OCC/VSG.
c.
OCC/VSG will have no liability or responsibility for any damage, loss
of data, loss of use or other loss occurring in connection
with OCC/VSG’s provision of Optional Services requeste
d b
y Customer.
15.
Miscellaneous.
.
Independent Contractor. OCC/VSG and Customer are independent contractors and nothing
contained in this Agreement places OCC/VSG and Customer
in the relationship of principal and agent, master and
servant, partners or joint venturers.
Neither party has, expressly or by implication, or may
represent itself as having, any authority to make contracts
or enter into any agreements in the name of the other
party, or to obligate or bind the other party in any
manner whatsoever.
a.
Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement,
the formation of this Agreement or the breach of this
Agreement, including any claim based upon arising from
an alleged tort, shall be governe
d b
y the
substantive laws of the State of Florida, except that
all arbitration and related proceedings conducted pursuant
to Section 15(c) below, including without limitation
confirmation proceedings, shall be governe
d b
y the
Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq.
. The United Nations Convention on Contracts for
the International Sale of Goods does not apply to this
Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING
THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION
PURSUANT TO SECTION 15(C) BELOW MUST BE BROUGHT IN A
GEORGIA STATE OR FEDERAL COURT LOCATED IN BROWARD COUNTY,
FLORIDA, AND EACH OF THE PARTIES HER
EB
Y IRREVOCABLY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS
(AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN
ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING
WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
b.
Mandatory Arbitration. Notwithstanding Section 15(b) above, each party agrees that any
dispute between the parties arising out of this Agreement
or in any manner relating to the Services must be submitte
d b
y the
parties to arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association,
as administere
d b
y Resolutions
Resources Corp. of Ft Lauderdale, Florida (or such other recognized provider of
arbitration services agreed upon by both parties) before
a single arbitrator, appointed in accordance with such
rules. Any such arbitrator must render a reasoned opinion
in writing only where the amount in dispute exceeds $100,000.
Judgment upon the award may be entered in any court having
jurisdiction thereof. Any such arbitration will be held
in So.
Florida
. Any action file
d b
y either
party in any court in violation of this Section shoul
d b
e dismissed
pursuant to this Section.
c.
Headings. The headings herein
are for convenience only and are not part of this Agreement.
d.
Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference,
supersedes all prior discussions, negotiations and agreements
between the parties with respect to the subject matter
hereof, and this Agreement constitutes the sole and entire
agreement between the parties with respect to the matters
covered hereby. In case of a conflict between this Agreement
and any purchase order, service order, work order, confirmation,
correspondence or other communication of Customer or
OCC/VSG, the terms and conditions of this Agreement shall
control. No additional terms or conditions relating to
the subject matter of this Agreement shall be effective
unless approved in writing by any authorized representative
of Customer and OCC/VSG. This Agreement may not be modified
or amended except by another agreement in writing execute
d b
y the parties hereto; provided, however, that these Terms of Service
may be modified from time to time by OCC/VSG in its sole
discretion, which modifications will be effective upon
posting to OCC/VSG's web site.
e.
