Odyssey Communications Group agrees to provide, directly or indirectly, certain services ("Our Services") and you agree to use and pay for Our Services. according to the terms and conditions set forth herein ("Agreement"). Your use of Our Services, either directly by you, at your direction or otherwise, constitutes your acknowledgment and your continuing acknowledgement that you have read and understood this Agreement and that you agree to be bound by its terms and conditions. If you do not wish to be bound by the terms and conditions of this Agreement, you may not use Our Services.
1. Conduct. Our Services may only be used for lawful purposes. Any use of Our Services which violates any local, state, federal, or international law or regulation, which may apply to us, to your local jurisdiction, or to any jurisdiction that you or your Web site may be subject to, is strictly prohibited. Any use of Our Services which violates any such law or regulation will result in termination of Our Services to you and will be reported to the appropriate authorities. You agree to comply with our Acceptable Conduct Policies, which are published on the Internet, and which are incorporated herein by reference. You agree to adhere to all policies and procedures which we publish on the Internet or of which we notify you via e-mail or otherwise, including, without limitation, policies which restrict Our Services, certain features of Our Services, and policies designed to protect or enhance the quality and reliability of Our Services. You agree that such policies and procedures are also incorporated herein by reference. We reserve the right to refuse to post or to remove any information or materials, in whole or in part, that, in our sole discretion, is unacceptable, undesirable, or in violation of this Agreement.
2. Indemnification. You agree to indemnify, hold harmless and defend us, our shareholders, directors, officers, agents, employees, affiliates, subsidiaries, partners, associates, suppliers, distributors and contractors from any and all loss, liability, penalties, damages, costs, expenses, attorneys' fees, causes of action or claims caused by or resulting directly or indirectly from your use of Our Services or your violation of any of the terms of this Agreement, which damages either you, us, or any other party or parties, without limitation or exception. This indemnification and hold harmless agreement extends to all issues associated with your use of Our Services and your compliance with this Agreement, including but not limited to domain name selection, e-commerce payment gateways and Web site content.
3. Refusal, Suspension or Discontinuance of Our Services. We reserve the right to refuse, suspend or discontinue Our Services to anyone at our sole discretion. We may deny you access to all or part of Our Services without notice if you engage in any conduct or activities that we, in our sole discretion, believe violates any of the terms or conditions of this Agreement. We may suspend or discontinue Our Services, at any time and without notice, due to unpaid amounts you owe us and charge you a reconnection fee subsequent to such suspension or discontinuance of Our Services. We have no responsibility to notify any third-party providers nor any responsibility for any consequences resulting from such refusal, suspension, discontinuance or lack of notification.
4. No Warranties. WE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND FOR OUR SERVICES. OUR SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY US OR OUR AGENTS OR EMPLOYEES OR ANY OTHER PERSON OR ANY OTHER ENTITY SHALL CREATE A WARRANTY OF ANY KIND. WE PROVIDE NO WARRANTY THAT OUR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE ON OUR COMPUTER HARDWARE OR ON OUR NETWORK IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR MEETS ANY USER'S PARTICULAR STANDARDS, REQUIREMENTS OR NEEDS. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF CURRENCY, FUNDS, DATA, PROFITS OR GOOD WILL, OR DAMAGES THAT RESULT IN ANY WAY FROM YOUR USE OF, OR INABILITY TO USE, OR FOR THIRD PARTIES' USE OF, OR INABILITY TO USE, OUR SERVICES TO ACCESS YOUR WEB SPACE, OUR COMPUTER HARDWARE, NETWORK OR OUR SERVICES, OR TO ACCESS THE INTERNET OR ANY PART THEREOF, OR YOUR OR ANY THIRD PARTIES' RELIANCE ON OR USE OF INFORMATION, SERVICES, OR MERCHANDISE PROVIDED ON OR THROUGH OUR SERVICES, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, EVEN IF ODYSSEY COMMUNICATIONS GROUP HAD BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES, INJURIES OR LOSSES. IF YOU ARE DISSATISFIED WITH OUR SERVICES OR ANY OF OUR TERMS, CONDITIONS, RULES, POLICIES, GUIDELINES, OR PRACTICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING OUR SERVICES.
5. Data Processing Programs. Notwithstanding anything herein to the contrary, neither any data processing program, nor any idea, invention, technique, concept or formula relating to data processing, whether such program, idea, invention, technique, concept or formula is submitted by you to us for the purposes of this Agreement or developed by us, shall be accepted or held by us on a confidential basis. We shall be free to use the information, knowledge and "know-how" contained in any program, idea, invention technique, concept or formula in any way which we may deem, at our sole discretion, to be appropriate.
6. No Inducement to Infringe. You shall not cause us to infringe upon any patent, license, copyright or other proprietary right or violate any other right (including but not limited to the right to royalties or license fees) of any other person or entity. You also represent and warrant that (i) you are and at all times will be free of any contractual obligation that would prevent you from entering into this Agreement and complying with all terms and conditions hereof, and (ii) Our offer to provide Our Services hereunder in no way caused or induced you to breach any contractual obligation.
7. ECPA Notice and Monitoring. We reserve the right, but are not obligated, to monitor and/or record any and all communications through or with our computer hardware, software and network. You agree that we are not considered a "secure communications medium" for the purposes of the Electronic Communications Privacy Act ("ECPA"), and that no expectation of privacy is afforded. You agree that we have no obligation to, but that we do have the right to, and may, monitor and/or record Our Services from time to time and at any time. Further, we may disclose any information which we determine, at our sole discretion, is necessary to satisfy any law or regulation, or to protect us, our customers or others. We may also, but are not obligated to, filter out and prevent the delivery of unsolicited and bulk e-mail (commonly referred to as "SPAM" or "UCE"), viruses, e-mail attachments and other similar electronic messages and/or content, which we determine, in our sole discretion, to be undesirable.
8. Current Identification Information. You agree to supply us with, and continue to keep us informed of, your current, correct and truthful name, postal address and telephone number. You also agree and warrant that you are an authorized user of any credit card and/or any bank account, which you direct us to charge and/or debit and agree that we have the right, but not the obligation, to fully investigate any possible fraudulent use of such credit card and/or such bank account. You individually, or as the person or the authorized representative of the entity legally responsible for the use of Our Services, acknowledge and warrant that you are at least 18 years of age and are fully authorized to make this Agreement.
9. Security. You agree that the security of information and other materials which you post, publish, transmit, receive and store on our computer hardware and on our network, is solely your responsibility. You further agree that if you believe your security, our computer hardware, software or network has been compromised in any way, you will notify us immediately by telephone and in writing. You agree that if any security violations are believed to have occurred, we have the right to suspend your access to Our Services pending an investigation and resolution. You further agree that we have the right to cooperate in any government or legal investigation or proceeding regarding any aspect of Our Services, including products or services sold to, or used by you and products or services sold or offered for sale by you. You acknowledge that you understand that by placing information on our computer hardware and on our network that such information becomes available to all Internet users and that we have no way of limiting or restricting access to such information or protecting such information from copyright infringement. You assume total responsibility and risk for your use of Our Services and the Internet. It is solely your responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, services and other information, and the quality and merchantability of all merchandise and services provided through us or through the Internet generally.
10. Backup of Data. Your use of Our Services is at your sole risk. We are not responsible for files, data, images and other materials which are stored on our computer hardware, on our network or elsewhere. You agree that you are solely responsible for all such materials and that you will maintain a backup copy of all such materials.
11. Work Product. You agree that any web site, web page, script, program and other work which we create or modify, in whole are in part, ("Work Product") is owned by us and is protected by United States copyright laws and international treaty provisions, notwithstanding any copyright notice or other notice to the contrary which may be placed on such Work Product by us or by anyone else. You agree that you will not remove or modify our copyright notice or any other copyright notice which is placed on the Work Product by us, or to do anything else, whatsoever, which would subordinate our copyright and ownership of the Work Product.
12. Marketing. You agree that we may use your name and/or your web site's URL for marketing purposes. You also agree that we may place a footer line and/or logo on the pages of your web site, which identifies us, including the URL of our home page and our e-mail address, as your hosting provider and/or the designer or creator, in whole or part, of your web site. You agree that you will not remove or modify such footer line and/or logo, without our expressed written permission, except, however, you may remove such footer line and/or logo, which identifies us as your hosting provider, at such time that we are no longer your hosting provider.
13. Billing and Payment. You shall promptly pay for Our Services at our offices, in U.S. currency, and in accordance with our price lists which are published on the Internet and otherwise in accordance with our latest quotation for any item or service which is not listed in our price lists. Such price lists and quotation are incorporated herein by reference. You shall also promptly pay all applicable sales, use or other applicable taxes and for any supplies and expenses (including without limitation, expenses for shipping, postage, telephone, fax, travel and lodging) which are incurred in connection with Our Services. You agree to pay in advance of the time period during which Our Services are provided to you and to promptly pay us upon your receipt of our billing. You agree that we have the right to charge you interest of 10% per annum on past due amounts due us, to suspend or discontinue/cancel Our Services, at any time and without prior notice, due to any unpaid amount which you owe us and to charge a reconnection fee (i) of $50 following each such suspension; and (ii) equal to the setup fee for the particular Service(s) plus $25, but subject to a minimum of $100, following each such discontinuance/cancellation. You agree that we are not obligated to release any of your property, including without limitation, information and other material stored on our computer hardware or on our network, until you have paid all amounts due us hereunder. You further agree that we, at our sole election, are granted a lien on your property in our possession and have the unrestricted right, but are not obligated, to sell such property to satisfy any amounts due us hereunder and that you will continue to be obligated to pay any balance not satisfied by such sale, if any.
14. Recurring Billing. You agree that if you have authorized us to charge your credit card and/or bank account, that we may charge such credit card and/or bank account for the amounts due us from time to time, without notice. You may, at your sole option at any time and from time to time, revoke such authorization and/or change the nature of such authorization, by giving us notice hereunder, of such revocation and/or change.
15. Offset You agree that we may, at our sole option, offset any amount due us hereunder, by any other amount due, or which may become due, you, your affiliate or any entity managed, owned or controlled by you.
16. Refunds. We will refund fees paid, when Our Services are terminated effective prior to the applicable commencement of Our Services. You agree that once Our Services have commenced, the sale is final and there shall be no refund of the applicable fees paid. In the event that you paid the fees by check, bank draft or by a similar form, we shall not make the appropriate refund, if any, until 10 (ten) banking days after the applicable payment item was actually presented by us for payment. Any such refund, which was originally paid by credit card, will be refunded only by credit card.
17. Returned Item, Retrieval Request and Chargeback.You agree that we have the right to charge you: (i) a $25.00 fee each time a check, draft or similar form of payment is returned unpaid by your financial institution; and, (ii) a $25.00 fee each time you initiate a credit card retrieval request through your financial institution; and, (iii) a $75.00 fee each time you initiate a credit card charge back through your financial institution for the fees justly due us hereunder; and (iv) interest of 10% per annum on the amount of each credit card charge back, commencing from the date of charge-back to us and ending on the date repaid to us, for each credit card charge back you initiate through your financial institution for the fees justly due us hereunder.
18. Notification of Billing Dispute or Error. If you dispute our billing, or believe in good faith that we have made an error in our billing to you, you shall notify us hereunder within thirty (30) days after said billing was issued to you. Such notice shall set forth the exact and complete basis for your dispute.
19. Attorney and Collection Fees. If we incur any cost or fee from an attorney, collection agency or otherwise in attempting to collect any amounts due us hereunder, then you shall pay us, upon demand, the amount of such cost or fee. Further, in the event of any litigation between us in connection with this Agreement, the prevailing party shall be entitled to recover its reasonable costs and attorneys fees.
20. Taxes. You agree to be fully responsible for the timely payment of any and all taxes which are levied in relation to your purchase or use of Our Services.
21. Termination. Notwithstanding anything herein to the contrary, this Agreement may be terminated by you or by us, with or without cause, by giving the other party thirty (30) days advance written notice. Notwithstanding anything herein to the contrary, a termination shall not extinguish or diminish any of the rights and obligations which were accrued hereunder prior to the effective date of such termination.
22. Relationship. Our relationship is that of independent contractors. Neither this Agreement nor any of the activities contemplated hereby shall be deemed to create any partnership, joint venture, agency or employer-employee relationship between you and us.
23. Default. If you shall fail to pay us any amount due hereunder within five (5) days after receipt of notice that the same is past due, or if you are in default under any other agreement in effect between you and us, or if either of us fails to comply with any provision of this Agreement and such failure continues for a period of thirty (30) days after receipt of notice thereof, then you or us, as the case may be, shall be deemed to be in default and the other party shall have the right (i) to terminate this Agreement, and (ii) in addition, but subject to any limitations contained in this Agreement, to pursue any and all rights which may be available to it. Notwithstanding anything herein to the contrary, so long as you are in default under this Agreement or any other agreement in effect between you and us, we shall have no obligation to provide Our Services or to perform any other duties under this Agreement or any other agreement until such time that you have cured such default.
24. No Waiver of Remedies. The failure by either of us to exercise any option or right upon a default or breach of any of the terms of this Agreement shall not be construed as waiving such right or option at a later date. Further, all of such rights or options shall be cumulative and the exercise of any one such right or option shall not preclude the exercise of any other right or option. No exercise of, or delay or omission to exercise, the rights and powers herein granted shall be held to exhaust the same or be construed as a waiver thereof, and every such right and power may be exercised at any time and from time to time.
25. Force Majeure. Notwithstanding anything herein to the contrary, we shall not be considered in default hereunder or have any liability to you for any failure to perform if such failure arises out of causes beyond our control. Such causes include, without limitation, acts of God or a public enemy, acts of the government acting in any capacity, fires, floods, epidemics, quarantine restrictions, strikes, war, civil disturbance, riots, rebellion, freight embargoes, degradation of telephone or other communication service, electrical outage and weather conditions.
26. Notices. Any notice which either of us desires to give in connection with this Agreement shall be in writing and shall be deemed to have been duly given or sent if delivered personally or if mailed, certified mail return receipt requested in a postage-paid envelope, which is addressed, as the case may be, to you at your last address on record with us or to us at our address as published on the Internet. Notwithstanding anything herein to the contrary, we may transmit billings and past due notices via e-mail or other electronic means and such billings and past due notices shall be deemed to have been duly given or sent when transmitted by us.
27. No Assignment. You shall not assign this Agreement without our prior written consent.
28. Captions. All numbers, captions and headings to the sections and subsections of this Agreement have been inserted for convenience of reference only and shall not be construed as a part hereof.
29. Governing Law. THIS AGREEMENT IS BEING MADE AND ENTERED INTO IN THE COUNTY OF DALLAS, STATE OF TEXAS, AND IT SHALL BE GOVERNED AND CONSTRUED UNDER THE LAWS OF THE STATE OF TEXAS. ANY SUIT FILED IN CONNECTION WITH THIS AGREEMENT SHALL BE FILED IN A COURT OF COMPETENT JURISDICTION IN DALLAS COUNTY, TEXAS. THE PARTIES HERETO INTEND THAT THIS AGREEMENT SHALL BE GOVERNED BY ARTICLE ONE AND TWO OF THE UNIFORM COMMERCIAL CODE OF THE STATE OF TEXAS NOTWITHSTANDING THAT SUBSTANTIAL SERVICES MAY BE RENDERED HEREUNDER IN FURNISHING OUR SERVICES.
30. Severability. If any clause or provision of this Agreement is determined by a court of competent jurisdiction to be void, invalid, illegal or otherwise unenforceable under any present or future law effective during the term hereof, then the remainder of this Agreement shall not be affected thereby, and in lieu of such clause or provision, there shall be added as a part of this Agreement a clause or provision as similar in terms to such void, illegal, invalid or otherwise unenforceable clause or provision as may be possible and be legal, valid and enforceable.
31. Entire Agreement. This Agreement, including any and all documents incorporated herein by reference, constitutes the entire agreement between you and us with respect to the subject matter hereof, and it supersedes all prior and contemporaneous agreements, contracts, understandings, proposals and negotiations with respect to such subject matter. The terms and conditions of this Agreement shall prevail and be exclusive notwithstanding any additional or different terms or conditions of any purchase order which may be issued by you in connection with the furnishing of Our Services hereunder.
32. Acknowledgment. The terms and conditions of this Agreement, including without limitation our prices and price lists and all documents incorporated herein by reference, may be amended by us from time to time and at anytime, without prior notice, provided such amended information is published by us on the Internet. You agree to frequently refer to this document, and all documents incorporated herein by reference, on the Internet. You agree that your use and/or continued use of Our Services, directly, indirectly or otherwise, constitutes your acknowledgment and continuing acknowledgment that you have read and understood this Agreement, including all documents incorporated herein by reference, and that you agree and continue to agree to be bound by its terms and conditions.