Enrollment Form and Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, it is mutually agreed as follows:
Terms and Conditions:
The following recital of facts is incorporated herein by reference and shall be deemed a part of this Agreement.
"You" and "your" refers to Customer.
"Photon.Net" refers to Photon.Net, LLC and any of our related services (multimedia, e-commerce, etc.).
The following terms and conditions constitute the agreement between Photon.Net and you for the purpose of internet service and hosting on Photon.Net's internet server, and/or the processing of credit card data, check data, and money. This agreement is organized in sections which stipulate the terms of the agreement between the parties hereto.
User Internet Accounts: E-Mail, Web Hosting & Maintenance:
Photon.Net shall provide the e-mail, commerce processing, web hosting and/or maintenance services to your account more particularly described on Schedule 2 attached hereto, and you shall pay Photon.Net the amount described on Schedule 2 attached hereto, which shall be payable by the due date on the invoice sent to you.
If Schedule 2 indicates that your account includes e-commerce and reseller services, then this agreement shall also constitute a reseller and e-commerce service agreement pursuant to which Photon.Net will re-sell your merchandise through an internet storefront hosted on a server maintained by Photon.Net, and the additional terms and conditions contained in Schedule 3 attached hereto shall be deemed a part of this Agreement and incorporated herein. All fees and charges for reseller and e-commerce services shall be as set forth on Schedule 2.
Any payments not made, when due, shall be in default and shall (i) be subject to a late payment fee of five (5%) percent of the amount due if such payment is not received within five (5) days of its due date, and (ii) bear interest at the rate of 5% per annum from and after its due date. If any amount is not paid within thirty (30) days of the date it is due, all services shall be subject to suspension, without refund, and the services may only be reactivated at Photon.Net's discretion after the payment plus any late fees have been received.
Photon.Net exercises no control whatsoever over the content of the information passing through Photon.Net's Internet server, except in cases where we are made aware of a user who has violated our rules and regulations for server usage. Photon.Net does not make any express or implied warranty of any kind for the services it is providing. In addition, there is no express or implied warranty of merchantability or fitness for a particular purpose.
Photon.Net will take all diligent efforts to make network services available. However, Photon.Net shall not be responsible for any events or circumstances beyond its control which limit such availability, including, but not limited to, electrical, telephone, or telecommunications failures or interruptions and scheduled or unscheduled maintenance.
Photon.Net will make reasonable efforts to protect the integrity of the data presented on your web site using accepted industry standards of Internet security and network administration. Photon.Net will not be responsible for any loss or damages from delays, non-deliveries or service interruptions, including those caused by errors or omissions. The individual and/or the organization is solely responsible for (a) the accuracy and/or quality of the information obtained or data transmitted, and (b) assuring that each message sent has been received.
Photon.Net does not guarantee the backup of your data stored on the Photon.Net Internet server. Photon.Net may maintain backups for internal use by Photon.Net only. Photon.Net recommends that you keep your own backups of all your data.
Photon.Net shall not be liable for any damage arising from any event that is out of its control. Photon.Net shall not be liable for direct or indirect, special, incidental, exemplary, consequential, or any other form of money damages, including, but not limited to, lost profits or the loss of data or information of any kind, however caused, and arising out of or in connection with the performance or the providing of services by Photon.Net, whether based in contract, tort, or any other legal theory, and whether or not Photon.Net or the operators of any attached networks have been made aware of the possibility of such damages. In no event shall the liability of Photon.Net exceed a refund of the amounts actually paid to Photon.Net for the then-current service period.
Acceptable Use:
Photon.Net's services may only be used for lawful purposes. You shall strictly abide by the rules and regulations attached hereto as Schedule 1 and agree that Photon.Net may, without refund, limit or discontinue access to your account or terminate your account at any time in the event you violate or fail to observe such rules and regulations. Photon.Net reserves the right to modify or amend such rules and regulations in the future from time to time. You agree to the privacy of other users and organizations; for example, users shall not intentionally seek information on, obtain copies or modify files, other data or passwords belonging to other users, or represent themselves as another user unless explicitly authorized to do so by that user. You agree to hold Photon.Net harmless from any claims resulting from your use of the service which damages you or another party.
Use of the Internet for lawful commercial purposes is both permitted and encouraged. Service is provided for your organization only. Resale or the use of the service by another organization is prohibited unless you have a specific reseller agreement in writing from Photon.Net. In order to use Photon.Net's services or any other networks which are used as a result of their Photon.Net connections, all individuals or organizations connected to the Photon.Net Internet server must comply with this policy and the rules of the stated purpose and acceptable use policies of any other networks or hosts used.
Photon.Net may, at any time, make determinations that particular uses are not consistent with Photon.Net's acceptable use policy. Photon.Net's acceptable use policy is, at a minimum, to include:
(1) To respect the legal protections provided by copyright and license to programs and data.
(2) To respect the integrity of computing systems; for example, users shall not intentionally develop programs that harass other users or infiltrate a computer or computing system and/or damage or alter the software components of a computer or computing system.
(3) Malicious use is not acceptable. Use should be consistent with guiding ethical statements and accepted community standards. Photon.Net's network may not be used in ways that violate applicable laws or regulations. Use of Photon.Net's network and any attached network in a manner that precludes or significantly hampers its use by others is not allowed.
You shall hold Photon.Net harmless from and against any and all losses, liabilities, damages, claims, judgments, costs, and expenses (including reasonable attorneys' fees) incurred in connection with any claim against Photon.Net by a third party which may arise from, or as a result of, your use of Photon.Net's Internet server, including, but not limited to, any claims of copyright or trademark infringement.
When Photon.Net learns of possible inappropriate use, Photon.Net's staff will notify the individual or organization responsible, which must take immediate remedial action and inform Photon.Net of its actions. Photon.Net reserves the right to disconnect your Internet services. If this is deemed necessary by Photon.Net staff, efforts will be made to inform you prior to discontinuing such service, and efforts will be made to reestablish your connection as soon as it is mutually agreed upon.
Photon.Net reserves the right to refuse service to anyone for any reason, including rude or unacceptable treatment of Photon.Net staff or other users, abuse of our customer support services, or false or persistent complaints about internet services which are known and evidenced to be fully functional.
Intellectual Property:
You retain all rights to "intellectual property" in web site content. Photon.Net will not reproduce "intellectual property" without permission from the owner, unless reproduction is required for the upkeep of your web site.
Photon.Net reserves the right to publish, within its own site, a link to your site, unless you request that we do not publish any links. Photon.Net also reserves the right to not publish links, or to remove links once they have been published.
Authorities and Permissions; Consumer Credit:
You hereby affirm that all information submitted for hosting or distribution does not infringe upon any copyright, trademark, patent, statutory or common law or proprietary rights of others. You hereby affirm that all information submitted for hosting or distribution does not contain anything deemed to be obscene or libelous. Further, you indemnify Photon.Net with respect to any damages, loss or legal expense which might result from the hosting or distribution of any materials provided on your web site.
Modification of Services:
Photon.Net reserves the right to change, without notice, all services, including, but not limited to, access procedures, hours of operation, menu structures, commands, documentation and services offered. Photon.Net offers a good faith assurance that such service changes will not be made except to improve Photon.Net's level of service.
Photon.Net reserves the right to suspend or terminate access to your site upon any indication of credit problems (i.e., delinquent payments, insufficient funds or rejection of any checks or credit card charges).
Term:
This Agreement is in effect, commencing on the Photon.Net Acceptance Date, until the Agreement is terminated in writing by either party. Photon.Net will notify you of any planned service interruptions as far in advance as possible. This Agreement can be terminated by either you or Photon.Net, by notice delivered as hereinafter provided.
If you remove your site from the Photon.Net Internet server to another web server after the termination of this Agreement, Photon.Net is under no obligation to publish a forwarding page linked to the new location of your site, although we reserve the right to provide at our discretion a forwarding page for a small cost agreed upon by you, or free as a courtesy. You have the right to create a forwarding page linked to a new location and distribute it on the Photon.Net Internet server prior to the termination of this Agreement.
Photon.Net may modify the terms and conditions hereof upon notice to you. Your use of Photon.Net resources after such notice shall constitute your acceptance of the modifications of this Agreement.
Miscellaneous:
This agreement shall be binding upon the parties hereto and their respective heirs, successors and assigns; provided, however, that you shall not assign your interest in this Agreement, except to your affiliates. For purposes hereof, the word "affiliate" shall mean (i) any person or entity directly or indirectly controlling, controlled by or under common control with another person or entity, (ii) a person or entity owning or controlling ten (10%) percent or more of the outstanding voting interest in or of such other person or entity, (iii) any officer, directory, partner, member, trustee or anyone acting in a similar capacity as such persons, and (iv) if such other person is an officer, director, partner, member or trustee, any entity for which such person acts in any such capacity.
Sales and/or use taxes, if applicable, shall be paid by you.
This Agreement, including the Schedules and Rules and Regulations attached hereto, contains the entire agreement between the parties pertaining to the subject matter hereof and fully supersedes all prior agreements and understandings between the parties pertaining to such subject matter. This Agreement may not be modified, except in writing by Photon.Net.
If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall nonetheless remain in full force and effect.
Time is of the essence to this Agreement.
This Agreement shall be governed by the laws of the State of California.
Any notice pursuant to this Agreement shall be given in writing by (a) personal delivery, (b) expedited delivery service with proof of delivery, (c) United States registered or certified mail, return receipt requested, postage prepaid, or (d) prepaid telegram, telex or telecopy (provided that such telegram, telex or telecopy is confirmed by expedited delivery service or by mail in the manner previously described), sent to the intended addressee at the address set forth on the first page of this Agreement, or to such other address or to the attention of such other person as the addressee shall have designated by written notice sent in accordance herewith, and shall be deemed to have been given either at the time of personal delivery, or, in the case of expedited delivery service or mail, as of the date of the first attempted delivery at the address and in the manner provided herein, or, in the case of telegram, telex or telecopy, upon receipt. Unless changed in accordance with the preceding sentence, the address for notices given pursuant to this Agreement shall be as set forth on the first page of this Agreement.
This Agreement may be executed in several counterparts, and all such executed counterparts shall constitute the same agreement. It shall be necessary to account for only one such counterpart in proving this Agreement.
Arbitration:
Any controversy or claim in connection with this Agreement shall be submitted to and heard by an arbitrator agreed to in writing by the parties, or absent such an agreed arbitration procedure within sixty (60) days, in accordance with the rules of the American Arbitration Association. All claims must be filed with the American Arbitration Association's California Office within one (1) year from (i) the date the services were last performed, or (ii) the time the party knows or should have known of the breach, whichever first occurs. The determination of such arbitrator shall be binding upon all parties to this Agreement and judgment may be entered in any court having jurisdiction.
Use of Photon.Net's resources constitutes acceptance of this Agreement.
Schedule of Rules and Regulations
2. You may not run software which is designed to or shall cause the Photon.Net internet server to malfunction or work incorrectly.
3. You may use your account for business purposes, but shall not resell your connection, unless you have a specific reseller agreement in writing from Photon.Net.
4. You may not try to "hack" log-ins or access restricted areas of the Photon.Net internet server system. Such activity is strictly prohibited and will result in immediate account termination with no refund.
5. You may not "spam" or flood messages through E-mail or throughout Usenet with a single message to a large number of user groups or mailing lists not related to the topic of its message.