EXHIBIT 10(f) The Planet Internet Services Terms and Conditions of Service
THE PLANET
TERMS AND CONDITIONS OF SERVICE
The following terms and conditions (these "Terms") govern
the provision by THE PLANET INTERNET SERVICES, INC. ("Company")
of the services and/or products (referred collectively herein as
"Services and Products") described on the Server Order Form, the
Service Level Agreement and Service Exhibit attached hereto
(collectively the "Service Descriptions") and defined in any of
the Company's product support listing, to the customer
("Customer") identified on the Service Descriptions. The Service
Descriptions, these Terms and the attachments and any addenda
hereto, executed with respect to the Services and Products, are
referred to herein, collectively, as this "Agreement."
1. Obligations of Parties. Company shall install Services and
Products within five business days after execution by Company of
all applicable Service Descriptions, unless otherwise specified
in writing, and maintain the Services and Products that are
designated in the Service Descriptions. Customer shall comply
with all of the terms of this Agreement, including, but not
limited to, the Acceptable Use Policy attached hereto as
Attachment A (the "Use Policy"), as the Use Policy may be
modified from time to time. Upon notice from Company, Customer
promptly shall eliminate any hazard, interference or service
obstruction that any hardware or software used by Customer,
whether or not provided by Company ("Customer Materials"), is
causing or is likely to cause. If Customer requests Company to
assist it in removing any hazards, interference or service
obstruction that Customer Materials are causing or are likely to
cause, Company may, but is not required to, assist in such
removal.
2. Payment. Charges for the Services and Products (including
the charges described in the balance of this section, the
"Charges") are set forth on the Service Descriptions. Charges
shall commence to accrue on the date that Company provides access
codes to Customer ("Operational Date"). Charges shall be invoiced
to Customer in advance at the beginning of the month. Any
additional charges, including, but not limited to, any early
cancellation charges, accrued interest, late fees and any usage-
based charge, including, but not limited to, charges for network
access to the Internet, shall be invoiced in arrears and shall
appear on the monthly invoices for Services and Products or
separate invoices. In all cases, payments for Charges are due
upon receipt by Customer of the invoices for such Charges.
Customer also shall pay to Company all expenses incurred by
Company in exercising any of its rights under this Agreement or
applicable law with respect to the collection of a Payment
Default, including, but not limited to, reasonable attorneys'
fees and the fees of any collection agency retained by Company.
3. Maintenance. Company designates time periods ("Scheduled
Maintenance Windows") during which it may limit or suspend the
availability of the hardware and/or software involved in
providing its Services and Products (an "Outage") to perform
necessary maintenance or upgrades. Scheduled Maintenance Windows
currently are between the hours of 1 am and 4 am Central Standard
Time. If planned maintenance has the possibility of making the
server or servers, as the case may be, utilized by Customer
inaccessible to the Internet during a Scheduled Maintenance
Window, Company will provide not less than twenty-four (24) hours
prior electronic mail or other notice to Customer of the
Scheduled Maintenance Window during which the Outage is planned.
In addition, Company reserves the right to perform any required
maintenance work outside of the Scheduled Maintenance Window with
prior notice to Customer. Company will provide not less than
twenty four (24) hours notice for work performed outside of the
normal scheduled maintenance window.
4. Term and Termination. Unless stated otherwise in the Service
Descriptions, the initial term of this Agreement shall be one (1)
year. The initial term of this Agreement shall commence on the
Operational Date and upon expiration shall automatically renew
for successive ninety (90) day terms at the Charges in effect at
the commencement of such terms (which Charges shall have been
communicated to Customer in writing forty-five (45) days prior to
the end of the preceding term) or until written notice of non-
renewal by either party is delivered to the other party at least
thirty (30) days prior to the end of the then current term.
Company may, at its option, terminate this Agreement, upon (i) a
Payment Default, or (ii) Customer ceasing to do business in the
normal course, becoming or being declared insolvent or bankrupt,
being the subject of any proceeding relating to liquidation or
insolvency which is not dismissed within 90 calendar days or
making an assignment for the benefit of its creditors. Payment
default shall be defined as (i) failure to submit current invoice
amounts upon notice by The Planet via e-mail, postal mail, or
telephone and (ii) proof of receipt of payment is not received by
The Planet via wire transfer, postal services, or personal
presentation of accrued amounts owed. Customer retains the right
to cure the amount in default within (fifteen) 15 days of receipt
of actual notice, not to exceed 30 days after initial due date.
Any such termination thereafter may be effected without prior
notice to Customer. Customer may terminate this Agreement with
respect to all, and not less than all, of the Services and
Products in the event of (a) a material breach by Company of its
obligations under this Agreement which breach is not cured within
ten (10) business days after written notice thereof is received
by Company, or (b) otherwise in the first fifteen (15) days of
the initial term hereof (collectively, a "Permissible
Termination"). In the event of a Permissible Termination,
Customer shall pay (i) installation Charges, (ii) a pro-rated
Charge based on the number of days Company provided Services and
Products prior to the date of termination of this Agreement by
Customer under this section, and (iii) if the Services and
Products include software for which Company does not then provide
general customer support, Customer shall pay to Company an amount
equal to Company's cost of such software for the entire term. If
Customer terminates this Agreement other than in a Permissible
Termination, Customer shall pay to Company an amount equal to all
unpaid Charges for the remainder of the then current term of this
Agreement. Upon termination of this Agreement, Company and
Customer shall have no obligations to each other except as
provided in this Agreement. Upon termination of this Agreement,
Customer shall (i) pay all amounts due and owing to Company, (ii)
remove from Company's premises all property owned by Customer and
(iii) return to Company all software, access keys and any other
property provided to Customer by Company under this Agreement.
Any property of Customer not removed from Company's premises
within thirty (30) days after such termination shall become the
property of Company, which may, among other things, dispose of
such property without the payment of any compensation to
Customer. The rights and obligations of both parties, which by
their nature would continue beyond the termination of this
Agreement (including, without limitation, those relating to
confidentiality, payment of Charges, limitations of liability and
indemnification), shall survive such termination.
5. Indemnification. Customer agrees to indemnify and hold
harmless Company and the employees and agents of Company (each an
"Indemnified Party") against any losses, claims, damages,
liabilities, penalties, actions, proceedings or judgments
(collectively, "Losses") to which an Indemnified Party may become
subject and which Losses arise out of, or relate to this
Agreement or Customer's use of the Services and Products, and
will reimburse an Indemnified Party for all legal and other
expenses, including reasonable attorneys' fees incurred by such
Indemnified Party in connection with investigating, defending or
settling any Loss whether or not in connection with pending or
threatened litigation in which such Indemnified Party is a party.
6. Limitation on Company Liability. Company shall not be deemed
to be in default of any provision of this Agreement or be liable
for any failure of performance of the Services and Products to
Customer resulting, directly or indirectly, from any (i) weather
conditions, natural disasters or other acts of God, (ii) action
of any governmental or military authority, (iii) failure caused
by telecommunication or other Internet provider, or (iv) other
force or occurrence beyond its control. The exclusive remedy
against Company for any damages whatsoever to Customer arising
out of or related to this Agreement shall be the refund of the
fees paid by Customer to Company with respect to the then current
term of this Agreement. COMPANY SHALL NOT BE LIABLE FOR (i) ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR
ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF
THE COMPANY'S SERVICES AND PRODUCTS BY CUSTOMER OR ANY THIRD
PARTIES, OR (ii) ANY LOSS OF DATA RESULTING FROM DELAYS,
NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS COMPANY
PROVIDES THE SERVICES AND PRODUCTS AS IS, WITHOUT WARRANTY OF ANY
KIND, WHETHER EXPRESS OR IMPLIED COMPANY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CUSTOMER
SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND
SUITABILITY OF THE SERVICES AND PRODUCTS AND COMPANY SHALL HAVE
NO LIABILITY THEREFORE.
7. Arbitration. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR
RELATING TO THIS CONTACT OR ANY BREACH THEREOF IN EXCESS OF
$250.00 SHALL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH THE
COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION AND JUDGMENT UPON THE AWARD RENDERED BY THE
ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION
THEREOF.
8 Notices. Unless otherwise specified herein, any notices or
other communications required or permitted hereunder shall be
sufficiently given if in writing and delivered personally or sent
by facsimile transmission, internationally recognized overnight
courier, registered or certified mail, to the address or
facsimile number of Customer as set forth in the Service
Descriptions or Company as set forth below. Such notices or other
communications shall be deemed received (i) on the date
delivered, if delivered personally, (ii) on the date that return
confirmation is received, if sent by facsimile, (iii) on the
business day (or, if international, on the second business day)
after being sent by an internationally recognized overnight air
courier or (iv) five days after being sent, if sent by first
class registered mail, return receipt requested.
THE PLANET, 0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, Attention Accounting Manager, Facsimile Number
(000)000-0000.
9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas,
without regard to choice of law provisions that would cause the
application of the law of another jurisdiction.
10 Miscellaneous. Failure by either Company or Customer to
enforce any of the provisions of this Agreement or any rights
with respect hereto or the failure to exercise any option
provided hereunder shall in no way be considered to be waiver of
such provisions, rights or options, or to in any way affect the
validity of this Agreement. If one or more of the provisions
contained in this Agreement are found to be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not be affected.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Customer: Company:
ERYA ThePlanet Internet Services, Inc
0000 Xxxxxxxx Xxx. 0000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxx Xxxx, XX 00000 Xxxxxx, Xxxxx 00000
000-000-0000 000-000-0000
By: _____________________ By: ____________________________
[Service Order Form Exhibit - attached as ADOBE ACROBAT/PDF FILE]
