- AGREE TO PERFORM AND PAY
NINACDN agrees to perform services defined in the Attached Proposal, and CUSTOMER agrees to pay the fees for the services in the sums described in the Attached Proposal for the TERM of the Agreement.
- TERM OF AGREEMENT
The TERM of this Agreement shall be effective for the TERM specified in the contract unless terminated earlier as provided herein. This Agreement shall automatically renew itself for additional terms equal to the length of the original TERM, unless either party gives the other written notice of its desire not to renew at least: thirty (30) days prior to the expiration of the initial or any subsequent terms for a one (1) year contract; 60 days prior to the expiration of the initial or any subsequent terms for a two (2) year contract; and ninety (90) days prior to the expiration of the initial or any subsequent terms for a three (3) year contract. CUSTOMER is responsible for full and total payment of TERM regardless of early termination of services.
- ENTIRE AGREEMENT
The Terms and Conditions contained in this Agreement supersede all prior oral or written understandings between the parties and constitute the entire agreement between them concerning the subject matter of this Agreement and shall not be contradicted, explained, or supplemented by any course of dealing between NINACDN or any of its affiliates and CUSTOMER or any of its affiliates. There are no understandings or representations, express or implied, not expressly set forth in this Agreement. This Agreement shall not be modified or amended except in writing signed by the parties.
- PROVIDED INFORMATION
All materials delivered to NINACDN by CUSTOMER ("CUSTOMER's Material") shall remain the property of CUSTOMER, and NINACDN shall not have the right to use the CUSTOMER's Material except in performing the Development Services for CUSTOMER. The CUSTOMER warrants that all information and any other material provided to NINACDN is owned by the CUSTOMER. All Work Product except for the CUSTOMER's Material shall be the sole property of NINACDN, and NINACDN reserves all rights in the Work Product, subject to the above license.
- CORE MODULES
NINACDN uses core modules of software code to build Programming Code and does not grant CUSTOMER resale or licensing rights to the Programming Code. All Work Product is subject to intellectual property rights reserved by NINACDN and/or others as designated by NINACDN and may not be further licensed or transferred to others by CUSTOMER.
- RENEWAL OF the SERVICES
CUSTOMER will contact NINACDN concerning renewal as specified in paragraph 2 above. Services will continue to be provided at a rate of one hundred twenty-five percent (125%) of contracted price for each month past the TERM of the Agreement until the Services are cancelled or written Agreement renewed for a subsequent term. If CUSTOMER has made modifications to the Work Product itself or with another vendor, NINACDN may, at its own discretion, decline renewal.
CUSTOMER is responsible for full payment of TERM regardless of early termination. If NINACDN is in material breach of this Agreement, CUSTOMER may cancel this Agreement at the time of breach by giving written notice to cancel services to NINACDN. At that time NINACDN, at its sole discretion, based on value of work delivered and provisions of costs already undertaken made in expectation of services delivery, will determine the cancellation fee to be paid by CUSTOMER. CUSTOMER agrees to pay upon receipt of invoice from NINACDN such fees. After all invoices are paid, NINACDN will transfer any remaining Work Product to CUSTOMER within fifteen (15) business days. NINACDN may cancel this Agreement anytime during the TERM of the Agreement by giving written notice to cancel services to CUSTOMER. NINACDN at its sole discretion will remit an appropriate amount, if any, of pre-paid fees.
- DOMAIN NAME FEES
Domain name registration, maintenance, or any other fees associated with or imposed upon NINACDN for Internet domain name registration are not included by the Attached Proposal as they are incurred directly from the Domain Registrar. CUSTOMER agrees to pay Domain Registration Fees promptly upon receipt of invoice for such sums.
- UNAUTHORIZED ACCESS
CUSTOMER specifically agrees not to make any attempt to gain unauthorized access to any other systems or networks. CUSTOMER is responsible for the security of his Work Product. NINACDN is not responsible for any unauthorized access to the Work Product including but not limited to hacker attacks, vandalism, corruption of information, theft of information, or any other manipulation or any resultant damages, real or immaterial, incurred thereof.
- DATA INTEGRITY AND ACCURACY
CUSTOMER understands that the information available through NINACDN or interconnecting networks may not be accurate. CUSTOMER understands that inter-networking systems and data are not secure and may be subject to interception or loss. NINACDN MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESSED, IMPLIED, OR STATUTORY CONCERNING THE SECURITY OR INTEGRITY OF DATA OR INFORMATION AVAILABLE THROUGH THE NINACDN NETWORK.
- IP ADDRESS USE
Upon expiration, cancellation, or termination of the Agreement, CUSTOMER shall relinquish any IP addresses or address blocks assigned to CUSTOMER by NINACDN.
- COMPLIANCE WITH THE LAW
CUSTOMER agrees to comply with all international, federal, state, and local laws ("governing law"). In addition, CUSTOMER agrees to comply with governing law as it relates to content and the practice of content distribution thereof. NINACDN reserves the right to remove objectionable content on CUSTOMER's Work Product or any account on NINACDN's servers, routers, and any other equipment at NINACDN's sole discretion. CUSTOMER shall not use or permit CUSTOMER end users to use provided services in ways that violate laws, infringe the rights of others, or interfere with users of NINACDN's network or other networks. For example, CUSTOMER shall not propagate computer worms or viruses; use a false identity; attempt to gain unauthorized entry to any site or network; distribute child pornography, obscenity, or defamatory material over the Internet; or infringe copyrights, trademarks or other intellectual property rights. CUSTOMER further agrees to comply with U.S. export laws concerning the transmission of technical data and other regulated materials via the services provided.
- REPRESENTATIONS AND WARRANTIES
NINACDN warrants that it is authorized to enter into this Agreement and grant the rights as set forth herein. CUSTOMER represents that it has the authority to enter into this Agreement and is not by law or agreement with others prohibited from entering into this Agreement. OTHERWISE, CUSTOMER AND NINACDN DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, AGAINST INFRINGEMENT AND OF FITNESS FOR A PARTICULAR PURPOSE.
CUSTOMER and NINACDN acknowledge that the other party may disclose to it ("Recipient") certain Proprietary Material in the performance of this Agreement. Recipient agrees: (i) to hold the Proprietary Material in strict confidence, (ii) not to use the Proprietary Material other than for the performance of this Agreement, and (iii) to disclose the Proprietary Material only to full-time employees of Recipient requiring such material for performance of the Services in accordance with this Agreement and who have undertaken an obligation of confidentiality and limitation of use consistent with this Agreement. "Trade Secrets" means information of Recipient that is a trade secret under applicable law. "Confidential Information" means confidential or proprietary information of value to CUSTOMER or NINACDN other than Trade Secrets. "Proprietary Material" means Trade Secrets and Confidential Information. This obligation will continue during the TERM and for three (3) years thereafter for Confidential Information and for Trade Secrets if they are Trade Secrets under applicable law.
NINACDN grants CUSTOMER permission to utilize, and CUSTOMER agrees to maintain and display, certain NINACDN-designated trademarks and symbols in CUSTOMER's Work Product in the form placed by NINACDN pursuant to the Services. CUSTOMER grants permission to allow NINACDN to include it in customer lists and other marketing purposes.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL NINACDN OR CUSTOMER (NOR THEIR SUPPLIERS OR CUSTOMERS) BE LIABLE TO THE OTHER PARTY OR ANYONE ELSE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES RESULTING FROM THE LOSS OF USE, DATA, OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING THEREFROM OR THE USE OF ANY SERVICE EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NINACDN's ENTIRE LIABILITY FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FROM ANY CAUSE WHATSOEVER, WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO DIRECT, PROVEN DAMAGES IN AN AMOUNT NOT TO EXCEED THE SUMS PAID BY CUSTOMER TO NINACDN HEREUNDER, IN AGGREGATE FOR ALL SUCH CLAIMS.
- BILLING POLICIES
NINACDN shall bill, and CUSTOMER shall pay for the Services in accordance with NINACDN's standard practices. The full amount due to NINACDN shall be payable upon receipt of the NINACDN invoice. NINACDN reserves the right to review, modify, approve, and/or reject for any reason any or all CUSTOMER's proposals, contracts, and orders for Services. CUSTOMER agrees to pay NINACDN the fees for the Services provided to CUSTOMER during the TERM. CUSTOMER shall pay to NINACDN any reasonable out-of-pocket expenses it incurs in connection with its performance of this Agreement. All sums described herein and due to NINACDN hereunder shall be paid in U.S. dollars. Taxes, surcharges, and/or shipping, and other applicable governmental charges are additional costs that will be charged to CUSTOMER in addition to charges stated in the Attached Proposal. CUSTOMER is responsible for the payment of all usage-based surcharges that are applied to its account.
- Service Rates:Subscriber acknowledges that the nature of the service furnished, and the initial rates and charges have been communicated to Subscriber. Subscriber is aware that the Company may prospectively change the specified rates and charges from time to time. The promotional offer is contingent upon Company achieving and maintaining its cost of service goals including but not limited to rates charged to company by its suppliers.
- Payment:Establishment of service is dependent upon receipt by the Company of payment of stated charges. Subsequent payments are due in advance on the anniversary date of the month for that month's service.
- Payments and Fees:Credit cards or Checks that are declined for any reason are subject to a $35.00 declination fee. Service will be automatically interrupted on accounts that are 5 or more days past due. Invoices not paid by the due date listed are subject to a 10% late fee with a minimum of $15.00. Accounts that are not collectable by NINACDN may be turned over to an outside collection agency for collection. If account is turned over for collection, you agree to pay the company a "Processing and Collection" Fee of not less than $150.00 but not more than $250.00. If you desire to cancel your account, please follow cancellation procedures as outlined in this Terms of Service.
- Refund and Disputes:All payments to NINACDN are nonrefundable. This includes the one-time setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred. If you dispute a charge to your credit card issuer that, in NINACDN’ sole discretion is a valid charge under the provisions of the TOS and /or AUP, you agree to pay NINACDN an "Administrative Fee" of not less than $50 and not more than $150.
- Failure to Pay:The Company may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, penalties, and fees.
- SEVERABILITY AND SAVINGS
If any paragraph, or clause thereof, of these Terms and Conditions shall be held to be invalid or unenforceable in any jurisdiction in which these terms and conditions apply, then the meaning of such paragraph or clause shall be construed so as to render it enforceable to the extent feasible; and if no feasible interpretation would save such paragraph or clause, it shall be severed from these terms and conditions and the remainder shall remain in full force and effect, unless leaving the remainder in full force and effect would make the Agreement unjust.
A waiver of a breach or default under this Agreement shall not be a waiver of any subsequent default. Failure of either party to enforce compliance with any TERM or Condition of this Agreement shall not constitute a waiver of such term or condition.
Any request or other communication shall be deemed sufficiently given to the addressee and any delivery hereunder deemed made when sent by certified mail addressed to CUSTOMER at its office specified in this Agreement or to NINACDN at the appropriate address specified in this Agreement. Each party to this Agreement may change an address by relaying it through written notice to the other party. All notices under this Agreement shall be in writing and shall be given in person, by certified or registered mail or by overnight courier, addressed to CUSTOMER at the address set forth in this Agreement or to such other address as either party may designate by notice pursuant hereto.
Except as otherwise provided within this Agreement, neither party may transfer or assign this Agreement without prior written consent of the other party. NINACDN and CUSTOMER may only assign this Agreement to its parent, an affiliate, or any successor in interest or pursuant to a merger, sale, or reorganization. Neither party shall be held responsible for any delay or failure in performance to the extent that such delay or failure is caused by circumstances beyond its control, except for CUSTOMER's obligations to pay sums due hereunder.
- INDEPENDENT CONTRACTOR
The relationship between NINACDN and CUSTOMER under this Agreement shall be and shall always remain one of independent contractors.
No course of dealing, course of performance, or failure of either party strictly to enforce any term, right, or condition of this Agreement shall be construed as a waiver of any term, right, or condition.
Georgia State Law, excluding its choice of law provisions, shall govern the construction, interpretation, and performance of this Agreement.
All headings contained in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement or any clause.
- LIMITATION DUE TO INTERNATIONAL SECURITY
NINACDN can only provide security services and encryption as allowed by the Federal government of the United States to foreign countries. Any limitation incurred by any governing bodies of the United States, treaties made on her behalf, or other regulatory agencies domestic or international shall not be construed as failure to perform.
- THIRD-PARTY SOFTWARE
If CUSTOMER purchases optional functionality that involves the acquisition of third-party software through NINACDN, CUSTOMER agrees to sign any required third-party license agreements prior to delivery of the third-party software. If NINACDN installs third-party software for CUSTOMER and acceptance of license terms is affected electronically, CUSTOMER authorizes NINACDN to accept third-party license terms on CUSTOMER's behalf. In the event NINACDN makes any software available to CUSTOMER in connection with NINACDN services, CUSTOMER acknowledges and agrees that title to such software remains with NINACDN and NINACDN's third-party providers, if any, that the content and design of such software are valuable trade secrets, and that CUSTOMER may use such software only for purposes of NINACDN services. CUSTOMER agrees not to:
(a) copy or duplicate such software;
(b) reverse engineer, decompile or disassemble such software;
(c) make derivative works from such software; or
(d) modify such software.
In connection with this Agreement, if any lawsuit, claim, or proceeding is filed or if any fine or penalty is assessed against NINACDN that allegedly arises out of CUSTOMER's act or omission, CUSTOMER shall indemnify and hold harmless NINACDN against liability for damages, reasonable expenses, and legal fees incurred in the investigation and defense of any action, except to the extent or degree that NINACDN was liable because of:
Having caused or contributed to CUSTOMER's act or omission, or
having assumed any liability, incurred any expense, or made any payment in compromise or settlement of the action, without CUSTOMER's prior written consent.
- NINACDN shall give CUSTOMER, within twenty (20) business days, immediate written notice of any action and shall fully cooperate with CUSTOMER. If NINACDN fails to do so, CUSTOMER's obligation to indemnify NINACDN shall not apply. CUSTOMER shall have the right regarding such an action to assume or associate itself in the defense of the action.
- SPAMVERTIZED WEBSITES
You may not use the Service to host a site that is advertised in SPAM (a spamvertized site), even if you yourself are not engaged in spamming.
- Denial of Service:We reserve the right to refuse service to anyone at any time for any reason.