Service Agreement
This Service Agreement ("Agreement") is entered into by and between Colorado Information Technologies, Inc. ("Provider") and the undersigned ("Customer"). In consideration of the mutual agreements and covenants set forth herein, the parties agree as follows:
Services/Payment/Amendment/Termination
1. Accounts and Services. Customer will select one or more of the Service Packages and applicable Options (collectively, “Services”) offered by Colorado Information Technologies, Inc., and agrees to receive Services according to the Service Package and Options selected, on the terms set forth herein as may be amended from time to time by Provider. As part of the Services, Provider may furnish to Customer one or more accounts (collectively, “Account”), which will allow Customer to access the Internet or to access servers provided or controlled by Provider. Internet Access Services may be provided via dialup modem, ISDN, Frame Relay, DSL, point-to-point circuit, wireless, or other technology as agreed between Provider and Customer. Customer's Account will include where applicable access to the World Wide Web, electronic mail ("E-mail"), and other services commonly associated with the Internet. Provider allows access and makes no guarantee of Customer side connectivity. Provider is NOT responsible for any Customer long distance telephone charges.
2. Term. Provider will enable Customer's Account upon the date ("Commencement Date") of Provider acceptance of Customer's application. The "Initial Term" will be specified by a signed Term Addendum, or without a Term Addendum the Initial Term will be specified by either the fee schedule or the payment methodology, with no prorating of any kind (except as adjusted for the "Billing Day"). This Agreement shall be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term, unless Customer furnishes Provider with notice of termination either: (a) at least 7 days before the end of the Initial Term or the Renewal Term, whichever is then applicable, for terms of 99 days or less, or (b) at least 30 days before the end of the Initial Term or the Renewal Term, whichever is then applicable, for terms of 100 days or more.
3. Billing. Customer shall promptly notify Provider in writing or by E-mail of any changes in Customer's Account information, such as changes in address, telephone number, E-mail address or credit card.
Payment
-Rates. Customer shall pay all fees, including the Monthly Service fee, Setup Fee, and any other fees, as set forth on Provider's then-current Fee Schedule in advance. All fees are subject to change.
-Method of Payment. All services are prepaid and non-refundable. Provider reserves the right to collect the last month's non-refundable payment in advance and may collect or recollect such at any time. Payments are posted as credits and are non-refundable. There may be a fee for certain billing methodologies.
Where an approved automatic payment method (i.e. credit card or electronic payment etc.) is used, Provider shall automatically debit payments by Customer using the original payment method specified or until modified by Customer.
When the billing method is by "Invoice," Provider shall use postal services or E-mail. Invoices are sent in advance and all services are prepaid.
-Collection. There is a $25.00 service charge for each returned draft/check. Customer must notify Provider at least 15 working days before the next payment is due if customer wishes to change the method of payment. Accounts that are delinquent may have their connectivity terminated and files purged. Delinquent accounts bear interest at 18.0% per annum.
-Accounting Cycle. Customer's accounting cycle begins on the Commencement Date and is billed on the next weekly Billing Cycle. Except when specified credit card accounts are billed monthly and invoice accounts are billed quarterly 30 days before the start of each quarter. Provider reserves the right to change the accounting cycle with appropriate prorating of charges.
4. Amendment. Provider reserves the right to change the terms and conditions of this Agreement and/or any collateral agreements referenced herein, including the Fee Schedule, by notifying Customer on the Provider's Website (linked from Provider's home page) or by E-mail at least 15 days in advance of the effective date of the change. Use by Customer after the effective date constitutes acceptance of the new terms and conditions.
5. Termination. This Agreement may be terminated at any time by either party for any reason upon a 15-day notice in writing or E-mail (except for violation of use limitations). There is no partial refund/reimbursement for setup fees or any part of the remaining term for Provider service. The low price for service is based on the full payment for full term agreements and should Customer not complete full term there is no prorating of annual, quarterly or monthly fees. If account is terminated for violation of the rules of use contained in this Agreement, Customer may be immediately terminated and a $200 fee will be assessed by Provider and paid by Customer on presentation of invoice.
Provider Warranties
6. Although Provider will use best efforts to deliver Services on a reasonable and satisfactory basis and historically has been able to do so with minimal interruptions or other problems, nevertheless Provider makes no warranties whatsoever express or implied for its Setup or Services. Specifically and in particular, THERE IS NO WARRANTY OF MERCHANTABILITY AND THERE IS NO WARRANTY OF SUITABILITY AND NO WARRANTY OF FITNESS FOR PURPOSE. Accordingly, among other things, the Provider takes no responsibility for availability of service or delays, errors, omissions or imperfections in service, interruptions, downtime, viruses, etc. and the Customer takes the full and sole risk of these problems/events. Customer therefore gives Provider a full, complete, irrevocable RELEASE of liability from any claims based directly or indirectly on non-performance or mal-performance respecting this Agreement or Setup or Services.
7. While Provider regularly backs up files on Provider's servers, Provider is in no way responsible for the archiving of a site. It is the sole responsibility of the Customer to copy, back-up or archive all files that constitute a web site or other Customer data.
8. Provider takes no responsibility for acts or omissions of third parties which affect the Setup or Services and Customer takes the full and sole risk of problems/events caused directly or indirectly by third parties which adversely affect and/or damage the Customer, and Customer fully, completely, and irrevocably RELEASES Provider from liability in connection therewith.
9. Provider is not responsible for long distance tolls incurred by Customer in connection with Services.
10. Provider will perform in a manner consistent with professional standards as commonly practiced in the State of Colorado to respect confidentiality of Customer's data and not to reveal said data to unauthorized parties through Provider's actions.
11. In any event, and regardless, the MAXIMUM LIABILITY of the Provider in damages is the amount of the fees received by the Provider from the Customer for the provision of Services or Setup during the period of disruption or malfunction.
Use Limitations
12. The Customer takes full responsibility for the use and content of the Services, specifically including the Customer's website, E-mail, and network from time to time utilized by the Customer.
13. Further, as limitations on the use and content, the Customer agrees that the Customer SHALL NOT allow use of the Services:
a. for purposes which violate or are in violation of any applicable laws, rules or regulations of the United States of America, any State of the United States of America, or any nation, state or locality which has jurisdiction, power and authority to enforce its laws, rules or regulations against the Provider by civil or criminal process executable in Colorado or any state or territory of the United States of America;
b. to transmit threatening, obscene or harassing content or material;
c. to transmit any content or material which is defamatory, libelous, slanderous or obscene, pornographic, or contrary to community standards and norms of decency in the United States generally and the State of Colorado and County of El Paso, Colorado specifically;
d. to violate any copyright laws or trade secret laws and or to infringe any copyrights or patent rights of any third party or to wrongfully appropriate or infringe upon, violate or breach the intellectual property rights of any third person;
e. to send, distribute or publish by E-mail any of the following: Unsolicited commercial advertising, promotions, solicitations or informational announcements (commonly referred to as "spam") except to those who have explicitly requested or authorized such E-mails; Commercial advertising, promotions, solicitations or informational announcements that contain false or misleading information in any form, including without limitation forged or falsified information in the header (including sender name or routing information); Harassing E-mail, whether through frequency, language or size of messages; Chain letters; Malicious E-mail;
f. to post advertising to a mailing list or newsgroup except where and when specifically permitted by the mailing list or newsgroup;
g. to interfere with or disrupt network users, services or equipment, and therefore the Customer shall not distribute unsolicited advertising, propagate computer worms or viruses, or make unauthorized entry to any other computational, information, or communications devices or resources, and shall not develop programs that harass or damage or alter software of third parties, and further the Customer shall not waste system resources by spawning processes, consuming memory or CPU time unnecessarily, staying attached to modems when not active, or accessing information or resources without the permission, express or implied, of the owner of the information or resources;
h. to promote any illegal activity, or to present content that may be damaging to Provider's servers or to any other server on the Internet, or to link to such content; examples of unacceptable content or links include but are not limited to: pirated software, hacker programs or archives, and so-called "warez" sites;
i. by a third party who is not the Customer, except family members and business associates.
14. The Provider takes no responsibility for enforcing the above rules, but the Provider is entitled to monitor use of the Services by the Customer, without any liability to the Customer or third parties for violation of any right of privacy or similar right, and if and when a violation of the rules comes to the attention of the Provider, by monitoring or otherwise, the Provider may, without notice, terminate the availability of Services and purge the Customer's files and/or make a report to law enforcement agencies or personnel.
15. Respecting determination of a violation of the rules: The determination of the Provider shall be made in the Provider's sole and absolute discretion and the Customer shall be bound by said determination. Further the Customer expressly RELEASES Provider from any liability for any such determination and from any liability for action taken pursuant to such determination.
16. If a violation comes to the attention of the Provider and no action is taken, this is not a waiver of the Provider's right to enforce the rules subsequently with respect to a similar or to any other violation.
Indemnity
17. The Customer will indemnify the Provider and hold the Provider harmless from any claim, demand, suit or action by a third party based directly or indirectly upon any act or omission to act or any error or omission of the Provider in providing Setup or Services to the Customer.
18. There shall be no third party beneficiary of this Services Agreement between the Provider and the Customer.
19. Any taxes or fees incurred in connection with any activity by the Customer using the Services (selling or otherwise) shall be the full and sole responsibility of the Customer and the Customer indemnifies and holds the Provider harmless from any tax or fee claims whatsoever resulting from Customer's activity.
Children
20. Recognizing that the community norm is to protect children and that the Internet contains dangers to children and material which is not suitable for children, the Provider, as a matter of policy, will not knowingly enter into an agreement with a customer under the age of 18 years.
21. Accordingly the Customer represents and warrants that the Customer is not under the age of 18 years.
22. Further the Customer takes full responsibility for the use of the Services by any other person (whether properly as a family member or business associate or improperly as someone else) and warrants and represents that no person under the age of 18 years will be permitted to use the account of the Customer without supervision and controls adequate to limit times and length of time of access appropriately and adequate to protect the person from access to general materials or personal communications where such access or communications are not in the person's best interest.
23. The Customer understands and agrees that the Provider has no means of regulating use by persons under age except through the Customer and Customer therefore RELEASES the Provider from any liability based directly or indirectly upon harm or injury to a person under the age of 18 years of age caused by use of the Services and does hereby agree to indemnify the Provider and hold the Provider harmless from any claims or demands, suits or actions brought by third persons based directly or indirectly upon harm or injury to a person under the age of 18 years caused by use of the Services.
Miscellaneous
24. Any litigation involving the Services or Setup or this Service Agreement, or any matter related directly or indirectly thereto, shall be brought solely in the District Court, El Paso County, Colorado, at Colorado Springs, Colorado, and it shall have exclusive jurisdiction. Colorado law, excluding any reference to foreign law, shall apply. Service of process on the parties shall be valid and effective outside the State of Colorado to obtain jurisdiction over the person if in accordance with the Colorado Rules of Civil Procedure.
25. In any litigation the prevailing party shall have judgment for all costs of the litigation, including attorney fees, expert witness fees, all costs of discovery, and all reasonable expenses in connection with preparation and presentation of the case.
26. This agreement supersedes any previous agreements and is an agreement containing the complete understanding of the parties. Any changes, amendments or modifications must be in writing. Any unenforceable provision shall be severed and the remaining provisions shall continue in force and effect.
27. This agreement, although not signed by the Customer, is enforceable against the Customer, if posted on the Provider's website (linked from the Provider's home page) or if sent to the Customer by E-mail, or if otherwise furnished to the Customer or if the Customer is otherwise aware of the agreement, if the Customer continues to use Services.
Effective August 5, 2005
