InstantWeb's Terms and Conditions
This Agreement is entered
into by and between you (hereinafter "Client")
and InstantWeb, Inc. (hereinafter "InstantWeb") as of
today which is the date of acceptance by Client which acceptance
is being done electronically
B. Whereas, Client wishes
to obtain the services of InstantWeb as herein provided on the
conditions and based on the limitations herein stated;
Now, Therefor, in consideration
of the covenants and conditions provided in this Agreement, InstantWeb
and Client hereby agree as follows:
I. SERVICE PROVIDED BY
1.01 InstantWeb shall enable
Client to create, maintain, and upgrade a Web Site on InstantWeb's
Host Computer(s) (hereinafter referred to as "the Service"),
which can be accessed through the World Wide Web services of the
1.02 InstantWeb does not
provide any modem, computer, or any other equipment or system
for Client to connect to the Internet. Client is responsible
for its modems, computers, operating systems and connection devices
necessary for connecting to the Internet through which Client
can access the Service provided by InstantWeb. InstantWeb reserves
the right to adopt reasonable limitations including time limitations
for the use of the services provided by InstantWeb.
1.03 InstantWeb shall have
the right but not the obligation to upgrade its software and services
provided to Client, and further shall have the right without any
limitation, but no obligation, to transmit any information, letter,
memorandum, newsletter, documentation, advertisement, or any data
II. RULES OF CONDUCT
2.01 From time to time InstantWeb
may adopt its own rules of conduct (hereinafter referred to as
"InstantWeb's Rules of Conduct"), which may be amended
from time to time by InstantWeb. InstantWeb's Rules of Conduct
shall be provided to Client by E-Mail at least thirty (30) days
prior to its effective date. Client hereby agrees and promises
to observe and comply with InstantWeb's Rules of Conduct for so
long as this Agreement is in effect.
2.03 Client has the ability,
through the use of InstantWeb services, to host content on the
Internet which as a free flowing information highway, may provide
access to Internet users to said contents which may be considered
improper, offensive, or obscene by some groups or individuals.
Said contents may be in the form of discussions, files, photographs
and graphics relating to pornography, religion, politics, racism,
crime, violence and the like. InstantWeb respects the freedom
of speech and equally respects the right of Internet users to
be free from offensive material. InstantWeb reserves the right,
but not the obligation, without any limitation whatsoever to set
InstantWeb's Rules of Conduct in any manner InstantWeb in its
own discretion may deem appropriate.
2.04 InstantWeb reserves
the right without any limitation to limit the placement of any
material it deems inappropriate on the index of the Service or
other promotional material generated or used by InstantWeb, or
may refuse to assist in promotion or publicizing of such sites.
2.05 Client may not post
any material (pictures, text, etc.) whose posting would be considered
unlawful by any local, State, Federal, or International rules,
regulations, or laws in existence. Already posted material made
unlawful by any newly adopted rules, regulations, or laws must
be promptly removed.
2.06 InstantWeb reserves
the right to refuse to provide the Service to any person, individual
or entity for any reason or for no reason at all. InstantWeb
further reserves the right to cancel this contract with a 30 day
notice with or without reason or good cause.
2.07 Client agrees to defend,
indemnify and hold InstantWeb harmless with respect to any claim
or lawsuit from any source which may arise at any time relating
to the Client's posing of any content including, files, text,
photographs, graphics, sounds or any other material.
2.08 InstantWeb reserves the right without limitation to refuse to provide
service to any person, individual or entity for conducting unsolicited
e-mail or "SPAM" sent from any InstantWeb Account. This includes any
e-mail that promotes web sites hosted on an InstantWeb Virtual Server
that is sent from an email address not associated with an InstantWeb
account. InstantWeb further reserves the right to cancel this agreement
immediately with or without notice for any person, individual or entity
involved in the above mentioned conduct.
III. SOFTWARE OWNERSHIP
3.01 Upon subscribing to
the Service, a series of files and software are automatically
put in place to operate the Client's Web Site (hereinafter "Web
Site Infrastructure"). In addition, Client may add additional
content to the Client's Web Site (hereinafter "Client's Content").
Client acknowledges that the Web Site Infrastructure may be comprised
of contents which are (a) copy righted by InstantWeb, (b) copy
righted by third parties, (c) freeware, or a combination thereof.
Client hereby acknowledges to have ownership of only what Client
has created. Client agrees not to use any part of Web Site Infrastructure
unless to the extent of using said content in relation to the
use of the Service. Client further agrees not to sell any part
of Web Site Infrastructure without written consent of InstantWeb.
IV. PRODUCTS AND SERVICES
4.01 Client shall have the
right to create and maintain a Web Site or Web Page for the purpose
of offering to sell products and or services. For security purposes
InstantWeb offers a Secured Transaction Hosting Service which
receives and transmits information in a more secure and confidential
environment. It is hereby acknowledged that the Secured Transaction
Hosting Service shall be provided only if Client has entered into
the "Secure Transaction Hosting Agreement" with InstantWeb,
which is a separate agreement. Otherwise, the transmissions shall
be done by way of regular E-Mail without any additional security.
4.02 It is expressly agreed
that regardless of the type of service subscribed to by Client,
InstantWeb shall have no liability and hereby assumes no liability
whatsoever for any damages suffered by Client for any reason including,
but not limited to, credit card fraud, complaints or claims of
any nature by purchasers of the goods or services, and any lost
transmissions for any reasons including but not limited to negligence
of InstantWeb or any defect in any products or equipment or software
used by InstantWeb or any other person. InstantWeb is not making
and has not made any warranty in whatever nature concerning any
goods and services sold by or to Client through the use of InstantWeb
services, or concerning any orders transmitted by or to Client
for the sale or purchase of any goods or service.
4.03 Client agrees to defend,
indemnify, and hold InstantWeb harmless with respect to any claim,
demand, lawsuit or liability from any source which in any manner
arises out of the use of InstantWeb's services by Client or the
sales or purchase of any goods or service by Client.
V. FEES AND CHARGES
5.01 Client agrees to pay
all fees and charges in conjunction with the establishment, use
and maintenance of the Service pursuant to the Schedule of Fees
and Charges to be found on
Instant Web Fees and Features Page.
the right to amend or change the Schedule of Fees and Charges
with notice to Client of no less than thirty (30) days before
its effective date.
VI. REPRESENTATIONS AND
6.01 Client hereby acknowledges
and agrees that the use of the Service is at Client's own risk.
InstantWeb has not guaranteed any result or outcome to be obtained
from the use of the Service. The Service is made available on
an "as is", "where is", and "with all
faults" basis without warranties of any kind, either express
or implied, including but not limited to warranties of title,
timeliness, merchantability or fitness for a particular purpose.
Neither InstantWeb, nor anyone else involved in creating, producing
or delivering the Service shall be liable for any direct, indirect,
general, special, incidental, or consequential damages arising
out of the use of the Service, or inability to use The Service.
Client also expressly agrees that InstantWeb does not warrant
that the Service will be uninterrupted or error free. Downtime
and lost transmissions may occur on the Service.
VII. RIGHT TO MODIFY AGREEMENT
7.01 This agreement may be
modified at any time by InstantWeb for any reason or in order
to comply with any local, national or international laws, rules
or regulations, with notice of such modification to Client, which
notice may be sent to Client by E-Mail, fax, or regular mail.
VIII. TERM AND TERMINATION
8.01 This agreement shall
be valid from the date Client agrees with its terms by expressing
Client's acceptance which may be done electronically via computer
and shall continue until such time as either InstantWeb or Client
give notice of termination of this Agreement which notice may
be given via E-Mail.
IX. GENERAL PROVISIONS
Any dispute arising under, or in connection with, this Agreement,
or any other aspect of the relationship between the parties herein
shall be submitted to and settled by arbitration in accordance
with the rules of the American Arbitration Association then in
effect, and the forum for such arbitration shall be Los Angeles
9.02 ATTORNEYS FEES:
In any such proceedings, or any other or further proceedings
instituted by one party hereto against the other with respect
to any controversy or matter arising out of this Agreement, or
in connection with the relationship of the Parties herein, the
prevailing party shall be entitled to recover from the non-prevailing
party such prevailing party's reasonable attorneys' fees and costs
of suit incurred in connection with such proceedings, and the
non-prevailing party shall be solely liable to pay any arbitrators'
9.03 NOTICES: Any
notice required or permitted to be given hereunder shall be deemed
duly given if said notice is transmitted by either certified mail,
fax or E-Mail.
This Agreement is the entire agreement between the Parties
herein with respect of the subject matter hereof and supersedes
all prior agreements between them with respect thereto.
9.05 BINDING EFFECT:
The provisions of this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, legal representatives, successors
9.06 HEADINGS: The
headings of the paragraphs of this Agreement are inserted solely
for convenience of reference, and in no way define, describe,
limit, extend or aid in the construction of the scope, extent
or intent of this Agreement or of any term or provision hereof.
9.07 GENDER: Where
the context so requires, the use of the masculine gender shall
include the feminine and/or neuter genders and the singular shall
include the plural, and vice versa, and the word "person"
or "party" shall include a corporation, firm, partnership
or other form of association.
In the event that any provision or any portion of any provision
contained in this Agreement is unenforceable, the remaining provisions
and, in the event that a portion of any provision is unenforceable,
the remaining portions of such provision, shall nevertheless be
carried into effect.
9.09 APPLICABLE LAW:
The Partnership shall be governed by and this Agreement shall
be construed in accordance with, the laws of the State of California.
IN WITNESS WHEREOF,
the parties hereto have agreed to this Agreement which agreement
is expressed electronically as of the date such expression of
agreement is communicated by Client to InstantWeb electronically.