WEBSITE HOSTING SERVICE CONTRACT

Policies, Terms & Conditions

Club Associates is a Web Hosting Provider (“Provider”). Provider agrees to provide the services described herein, and the user (“You” or “User”) agrees to pay for these services according to the terms and conditions set forth below.

By opening an account with Provider You agree to abide by the terms and conditions of this Agreement and all policies of Club Associates. These policies apply to all Users, without exception. Failure to adhere to the stated policies may result in termination of Your account at Provider’s sole discretion. Provider reserves the right to change policies, services, and pricing. You may cancel if You do not agree with changes in policy, service, or pricing. Your continued use of an account signifies acceptance of any and all policies and policy changes. Provider reserves the right to refuse to provide service to anyone.

This Agreement encompasses, without limitation, the placement of information or other material on Provider’s network or computer hardware, whether the network or hardware are owned by Provider or leased by Provider from third parties, and whether such placement is made by You, or made at Your direction or otherwise. Your use of Provider’s services constitutes Your acknowledgment that You have read and understood this Agreement and that You agree to be bound by this Agreement’s policies, terms and conditions. If You do not wish to be bound by the policies, terms and conditions of this Agreement You may not use any of Provider’s hardware or services and You may not directly, indirectly or otherwise place any information or other material on Provider’s computer hardware network, and neither You nor anyone acting on Your behalf should proceed to place any information of any kind on Provider’s servers or other hardware.

1. Definitions
“Web hosting” is a service enabling a person or company to store Web pages on the hosting provider's servers. “Web portal” is the starting point for Web activities. “Web Application” is computer software delivered using Internet technology that meets one or more of the following conditions: (a) Utilizes a database (such as SQL Server); (b) Requires a constantly running server process; and/or (c) Stores input data from data entry screens or web forms. “Service” refers to lease of a web repository hosted by Provider, and all account privileges associated therewith.

2. Service Agreement; Provider’s Services
Provider leases to User a web portal and web repository that allow User to store web pages on Provider’s servers. Provider will provide to User all necessary web applications, initial setup service and training, and documentation at the following web addresses: www.clubassociate.com, www.mymensclub.com, www.mywomensclub.com, www.golfassociates.com.

Provider will provide to User:
a) Predefined web pages and dynamically generated web pages, hosted on Provider’s web server;
b) Secure web applications allowing User to change the content of User’s web pages;
c) An email address, allowing User to read and send email for their assigned email address at one of the following domains: golfassociates.com, mymensclub.com, mywomensclub.com.;
d) A web application that allows User to collect, view, change and retrieve information regarding User’s Club Members (names, addresses, handicap number, etc.); Club Directors (names, titles, etc.); tournament schedules (titles, dates, etc.); tournament winners (names, prizes, etc.); golf course information (tees, par, slope, hole handicaps, etc.); tournament sign-up information allowing User’s members to sign up for tournaments online; scorecard information (handicap calculation and printing of scorecards); a portal service allowing User to retrieve current handicap information for members from handicap service providers; and other web content for User’s web pages.

3. Services not Provided
Provider will not provide to User domain names or POP forwarding of emails. User may, however, register a domain name and mask and forward it to their assigned URL at one of Provider’s web servers.

4. Technical Support
Provider’s technical support staff will assist User with web pages and account setup. Support is only available for computers running recent versions of html web browsers. For assistance, call Provider’s technical support at 707-789-9796.

5. Term of Agreement
The Initial Term of this agreement will be one (1) month, commencing with the date that User executes this Contract (or as soon thereafter as reasonably practicable for Provider to begin providing Services to User), with the term automatically renewing additional months, one (1) month at a time, 5 days prior to the end of each one-month term. Pre-payments may be made in situations where financial incentives for pre-payment are given. The term of the agreement, however, will always be month-to-month.

6. Communication and Notification
Communication between Provider and User will customarily be done via email to a single, primary email address. By default, this address will be Your username (at) my***.com -- e.g., username@mymensclub.com). This primary email address will be assigned to You when Your account is set up and is used to access administrator tools offered by Provider. It is User’s responsibility to check this email account for information regarding service, billing and any other notification from Provider.

7. You agree to comply with Provider’s General Policies
You agree to adhere to all of Provider’s policies and procedures (“Policies”), including those set forth below, and including, without limitation, policies that may restrict certain features of Provider’s Services and/or policies designed to protect or enhance the quality and reliability of Provider’s Services and/or all Acceptable Use Policies set forth by Provider’s upstream providers and any other networks or services connected to or used through Provider’s services. You agree that all such Policies and procedures are incorporated herein by reference.

8. Provider’s Hardware and Services May Be Used for Lawful Purposes Only
Provider’s computer hardware, servers and software, and the network and services we may provide (“Services”), may only be used for lawful purposes. Any use of Provider’s Services in violation of any local, state, federal, or international law or regulation, whether said law or regulation applies to Provider or to You, in Your local jurisdiction or in any jurisdiction to which You or Your Web site may be subject, is strictly prohibited. Any and all illegal use will be reported to appropriate authorities and will result in termination of Provider’s Services to You.

9. No Interference With Operation Of System.
You agree not to maliciously or intentionally interfere with the proper operation of Provider’s hardware and/or servers and/or system, including but not limited to defeating identification procedures, obtaining access beyond that which You are authorized for, and impairing the availability, reliability, or quality of service for other customers. You further agree to adhere to Provider’s Policies as published online, including restrictions on services available with each account type, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of Provider’s services; and You agree to abide by any and all future Provider policy decisions. You further agree not to interfere with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. You further agree to follow the Acceptable Use Policy of any network or service to which You connect.

10. Other Prohibited User Conduct
Your use of Provider’s Services is limited in that You may not:
(a) Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws;
(b) Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component;
(c) Post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the service for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material);
(d) Transmit unsolicited or prohibited advertising or other harassing or illegal materials through electronic mail, Usenet postings, or other Internet media. Use of Provider’s Services  for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as “spamming” is strictly prohibited; and such acts may cause Your Services to be terminated immediately and without warning; and You will be held fully responsible for any damages to Provider, or any other party or parties, resulting from any such conduct.

11. Acceptable Use Policy
Provider’s standard policy is to not monitor or interrupt Users’ activities, exert editorial control over content, or censor Users or Users’ content. However, to protect the interests of Provider, and in the best interests of Provider’s customers, exceptions to this policy may be made under certain specific circumstances including but not limited to the following.
(a) Improper use: You are strictly prohibited from using Your account other than as outlined in this Acceptable Use Policy. Any prohibited or illegal activity that affects Provider, its agents, equipment or customers is punishable to the full extent of the law, and Provider will hold You responsible for any damage caused by Your actions, whether intentional or unintentional. Provider may be required by law to report to appropriate authorities any criminal activity of which it becomes aware. It is User’s responsibility to be familiar with current laws and regulations.
(b) Email: Email accounts are for business correspondence only. Unsolicited Commercial Email -- otherwise known as UCE - or “spam” -- is strictly prohibited. Sending unsolicited email to one or more addresses regardless of how the addresses were obtained may be considered spamming and is grounds for account termination. Use of any address of a domain hosted by Provider as a return address for replies to spam is similarly prohibited. Provider may at its sole discretion employ filtering techniques to block inbound email from known sources of spam and email abuse, and may also filter incoming email for known viruses.
(c) Network abuse: Use of Provider’s accounts or services for orchestration of or participation in any abuse of or interference with Provider’s network, or any other network, system or service, is expressly forbidden and is grounds for account termination and possible legal action. User is responsible for any abuse of User’s account, whether or not User initiated the abuse, including, but is not limited to, abuse of email accounts used by a third party; or abuse of a co-located server or co-location services by a third party, with or without User’s permission. Provider in its sole discretion may determine what constitutes network abuse. Examples of network abuse include but are not limited to:
• Hacking of or attempts to hack Provider’s network or any other network or systems;
• Port scanning, “mail bombing,” or dissemination of viruses or mal-ware;
• Flooding Provider or any other network with traffic for the purpose of disrupting service
• Use of ‘cracking’ software or techniques;
• Provocation of attacks on Provider’s network or any other network
• Conduct which causes Provider to be blocked by another provider or which causes Provider to be placed on a “block list.”

12. Refusal, Suspension or Termination of Provider’s Services; Electronic Monitoring
Any violation of the terms and policies set forth in this agreement may result in the suspension or termination of Service without notice. Upon suspension or termination, access to Services and data will be immediately be revoked and Provider is not responsible for retention of any data or Services thereafter. Provider may charge You a reconnection fee subsequent to each such suspension or discontinuance of Provider’s Services. Upon suspension of Services, Customer will continue to remain responsible for 100% of charges and fees accrued and incurred during this period or remaining on Term, and this agreement will remain in effect until services are terminated. If Customer terminates service prior to end of term, Provider will collect 100% of the remaining balance due on term commitment.

Provider reserves the right to refuse, suspend or discontinue service to anyone at Provider’s sole discretion. Provider may deny You access to all or part of its Services without prior notice due to unpaid amounts You owe us or if You engage in any conduct or activities that Provider in its sole discretion believes violates any of the terms and conditions in this Agreement. Provider shall have no responsibility to notify any third-party providers of services, merchandise or information of such discontinuance; nor shall Provider have any responsibility for any consequences resulting from such discontinuance or lack of notification. Provider also reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this Agreement. Provider has the right to monitor its Services electronically from time to time and to disclose any information determined, at Provider’s sole discretion, to be necessary to satisfy legal requirements, or to protect Provider or its customers, subscribers or others.

13. Enforcement and remedy.
Violation of any terms set forth in this Contract may at Provider’s sole discretion result in one or more of the following: (a) Issuance of a warning; (b) temporary suspension of service; (c) billing to defray administrative costs incurred; (d) termination of Your services, account or accounts; and/or (e) legal action. Any of these actions may be taken without prior notification to User. Any User whose account is terminated for violation of the terms set forth herein will be required to pay any outstanding balances due, including any and all early termination fees and/or administrative disconnect fee. This provision in no way limits Provider’s rights and remedies. Provider, at its sole discretion, may take other actions it deems necessary to protect the integrity of Provider’s or other networks, or to recover the costs of actions necessary to identify and/or removing violators of the terms or policies contained herein.

14. Termination by Customer
Termination or cancellation by Customer must be made 30 days prior to the end of the current term. Notice must be made in writing and signed by Customer. Unless written notice is provided 30 days prior to end of term, this agreement remains in effect until Service is terminated by Provider, regardless of Customers discontinuing use of Service. Only the primary account holder can cancel an account. Upon cancellation, all user data will be locked. If You fail to notify us of cancellation as stated above, You will be responsible for all access fees until the date of cancellation regardless of whether or not You used the service. If there is unused time on the account when You call and cancel, refunds will be calculated in 10-day increments from the date of cancellation to the due date. If You are not satisfied with the service within 30 days of the activation date of Your account, all of Provider’s charges will be refunded upon cancellation. Full refunds will not be given if the account has been active for more than 30 days.

15. Lack of use for extended periods
Any User who will be unable to use their account for extended periods of time should call and make arrangements with Provider at (707) 789-9796.

16. Privacy
Provider is committed to preserving the privacy of its customers and protecting their personal data. Provider will not release any customer email addresses to any third party and Provider will not disclose any information about its customers to any other third party without a Court order or by virtue of other legal proceedings except that Provider may keep information about its customers such as names, addresses, telephone numbers and details about Provider’s services used by the customer some of this information may be made available to Provider’s immediate affiliates in the course of providing services requested by User.

17. Indemnification.
You agree to indemnify, defend and hold harmless Club Associates, Provider and his/its owners, directors, officers, agents, employees, affiliates, subsidiaries, partners, associates, suppliers, distributors and contractors from any and all lawsuits, claims, fines, liability, penalties, losses, damages, costs, expenses, attorneys’ fees, causes of action or claims caused by or resulting directly or indirectly from Your use of Provider’s Services or Your violation of any of the terms of this Agreement, without limitation or exception. This indemnification and hold harmless agreement extends to all issues associated with Your account, including but not limited to domain name selection and Web site content.

18. Data-processing programs, Information and “know-how” Not Confidential.
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 otherwise, 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 Provider’s sole discretion, to be appropriate.

19. 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.

20. Identification; Account Information; User’s Representations
You agree to supply Provider with a current and truthful name, postal address and telephone number for Provider’s records. You have a continuing obligation to keep this information current and You are required to notify Provider of any changes to Your name, address, or telephone number in order to ensure accurate communication between Provider and User. For security reasons, if You wish to change the listed owner of Your account You must submit a written request signed by the current and new account holders. If this is not possible please call Provider’s billing department.

You 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/or complying with all of its terms and conditions hereof; and (ii) Provider’s offer to provide Services hereunder in no way caused or induced You to breach  any contractual obligation.

21. Credit Card Authorization
You 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 You 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.

22. ECPA Notice and Monitoring
Provider reserves the right, but is not obligated, to monitor any and all communications through or with Provider’s hardware and/or network. You agree that Provider is not considered a “secure communications medium” for the purposes of the ECPA, and that no expectation of privacy is afforded.

23. Access to content.
Provider does not censor web content. Material can be found on the Internet or in Usenet news groups, etc., that some individuals may find objectionable. Provider is not responsible for any content available via Provider’s accounts or services, or access to material that a User deems inappropriate. Any limitation of access to content is at all times User’s responsibility. Provider suggests that use of the world-wide-web by minors be supervised.

24. Right to Filter Spam; Right to Disclose
Provider may but is not obligated to filter out and prevent the delivery of unsolicited and bulk e-mail (commonly referred  to as “SPAM” or “UCE”) and other similar electronic messages, determined in Provider’s sole discretion to be undesirable.

25. Security
You agree that the security of information and other materials which You post, publish, transmit, receive and store on Provider’s computer hardware and/or on Provider’s network, is solely Your responsibility. You further agree that if You believe Your security, Provider’s computer hardware, software or network has been compromised in any way, You will notify us immediately by telephone and in writing; and You agree that You are fully responsible for any misuse or compromise to Your account of which Provider is not properly notified. You agree that if Provider reasonably believes that security violations have occurred in association with Your account, Provider has the right to suspend access to the account pending an investigation and resolution, and that Provider has the right to cooperate in any government or legal investigation regarding any aspect of Provider’s services, including services sold to You and/or services sold or offered for sale by You. Any use of Provider’s system to engage in software piracy or other violations of law will result in account suspension and be immediately reported to the appropriate authorities.

26. Loss and Backup of Data.
Your use of Provider’s Services is at Your sole risk. Provider is not responsible for files, data, images and other materials residing on Your account and/or stored on Provider’s computer hardware and/or network. You agree that You are solely responsible for files and data transferred to Provider’s hardware and/or servers, and You agree to take full responsibility making backup copies of files and data stored on Provider’s hardware and/or servers.

27. Bandwith; Disk-use Quotas; ISP Restrictions and Limitations
User agrees to be bound by any and all restrictions and/or limitations placed on Provider by Provider’s Internet Service Provider including, without limitation, the quota system used by Provider’s Internet Service Provider for controlling customer bandwidth and disk usage. Information and specific details about these quotas can be found at http://www.sonic.net/support/docs/quotas.shtml.

28. Work Product
You agree that any web site, web page, script program and other work which we create or modify, in whole or 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 Provider’s copyright notice or any other copyright notice which is placed on the Work Product by us; nor will You do anything else whatsoever which would subordinate Provider’s copyright and ownership of the Work Product. You represent and warranty that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Provider are owned by You, or that You have consent from the rightful owner to use each of these elements; and You agree to hold harmless, protect, indemnify and defend Provider and its subcontractors from any liability, including any claim or suit, threatened or actual, and also including attorney’s fees and Court costs, arising from the use of such elements furnished by You.

29. Copyright and use of copyrighted material
All applications used to provide Service are copywritten material and all web pages are subject to copyright law. User is responsible for User-provided content. Provider is obligated to comply with the Digital Millennium Copyright Act of 1998 (DMCA). Use of the World Wide Web or any of Provider’s services to transfer copyrighted material in violation of applicable laws is prohibited and may result in termination of Your account. Copyright to finished web design produced by Provider shall be owned by Provider. You will be assigned rights to use the web design produced by Provider. Rights to photos, graphics, source-code, work-up files, and computer programs specifically are not transferred to You and remain the property of their respective owners. Provider and its subcontractors retain the right to display graphics and other Web Design elements as examples of their work in their respective portfolios.

30. 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 that identifies Provider, including the URL of Provider’s home page and Provider’s e-mail address, as Your hosting provider and/or the designer or creator, in whole or  part, of Your web site. You agree that so long as Provider acts as Your web-hosting provider, You will not remove or modify such footer line and/or logo without Provider’s express written permission.

31. Billing and Payment
(a) You agree to pay Provider in advance for the Services provided by Provider. All billing is billed in daily increments at the prevailing rates. You shall also promptly pay all applicable sales, use or other taxes. A late fee of $10 will be assessed if payment is not received by due date. If a payment remains past due for more than thirty (30) days, interest at the rate of 12% per annum will be charged. Provider may also charge You a $20.00 fee each time a check or bank draft is returned unpaid by Your bank or credit card provider. Provider may at any time and without prior notice suspend, discontinue or cancel Provider’s Services, at Provider’s sole discretion, due to any unpaid amount which You owe Provider. Provider may also charge a reconnection fee (i) of $50 following each such suspension, discontinuance or cancellation. You further agree that all setup fees are non-refundable once setup is completed. You agree that until and unless You notify Provider of Your desire to cancel any or all services received, those Services will be billed on a recurring basis. You further agree that if You are paying by credit card, prepayments may be billed and charged automatically, and that Provider may apply the amount due to the provided credit card at any time. You further agree that pro-rated refunds for unused time periods will be not reimbursed in the event of account termination. You further agree that Provider is not obligated to release any of Your property, including without limitation information and other material stored on Provider’s computer hardware and/or network, until You have paid all amounts due hereunder. You further agree that at Provider’s sole election Provider is granted a lien on Your property in Provider’s 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. User may be billed for network down-time that results from security problems or network outages. Provider’s Office hours are 8:00 am to 5:00 pm, Monday through Friday, and its billing office address is:
Club Associates
814 North Webster
Petaluma, CA 95452.

Information about services and current pricing can be found on Provider’s main page, located at http://www.clubassociate.com. To update Your contact information, billing information, renew by credit card, or account information please use Your administrator tools, located at Your accounts home page, in the section of Your Account. Provider reserves the right to modify prices and service availability at any time.

(b) Payment options. Provider accepts cash, check, Master CardÔ, or VISAÔ. Please do not send cash by mail. Provider will not be responsible for any loss of funds. If You prefer to pay in cash, please visit Provider’s main office during business hours. Check payments can be made in person, by mail. To renew Your account online, please use your administrator tool located at Your accounts home page in the section of Your Account. Credit card payments may be made by telephone, in person or online. If a credit card payment is declined, Provider requests that You call and give a valid credit card number or replace the payment with a check or cash. If for any reason a credit card payment is not completely processed, You will receive email notification.

(c) Billing Cycle. You will be billed monthly unless You change the payment interval with Provider’s Billing Department. All invoices must be paid within 30 days of the billing date. Payments are credited from the date the payment is received. A grace period of five days from the due date is given for accounts. After five days without payment, the account will be locked until payment is received.

(d) Invoicing. All invoicing is done via email or, if requested, via mail. If You choose to pay by cash or check You will receive an emailed invoice, transmitted on Your due date, that identifies the due date, the amount and the address to send payments to. You will receive a payment confirmation via email when Your payment is processed.

(e) Notification of Billing Dispute or Error. If You dispute Provider’s billing, or believe in good faith that we have made an error in Provider’s billing to You, You shall notify us in writing within thirty (30) days after said billing was issued to You. Such notice shall set forth the basis for Your dispute.

32. 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 Provider’s Services or to perform any other duties under this Agreement  or any other agreement until such time that You have cured such default.

33. 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 Provider’s Services.

34. 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 accrued hereunder prior to the effective date of such termination.

35. Relationship
Provider’s relationship is that of independent contractors. Neither this Agreement nor any of the activities contemplated hereunder shall be deemed to create any partnership, joint venture, agency or employer-employee relationship between You and us.

36. 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.

37. 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 addressed, as the case may be, to You at Your last address on record with us or to us at Provider’s 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.

38. Captions
All 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.

39. Governing Law
This Agreement is made and entered into in the county of Sonoma, State of California, and shall be governed and construed under the laws of the State of California; and any suit filed in connection with this agreement shall be filed in a court of competent jurisdiction in Sonoma County, California.

40. Costs and Attorney’s Fees
In the event Provider incurs any cost or fee from an attorney, or otherwise in attempting to collect amounts due hereunder, then upon demand You shall pay Provider the amount of such cost or fee. If any party hereto commences any legal proceedings against any other party hereto respecting any of the terms and conditions of this Agreement, the nonprevailing party or parties shall pay to the prevailing party or parties all expenses of said proceedings, including reasonable attorney’s fees.

41. Severability
The invalidity of any provision(s) of this Agreement as determined by a Court of competent jurisdiction shall in no way effect the validity of any other provision hereof; and in lieu of such provision there shall be added as a part of this Agreement provision as similar in terms to such void, illegal, invalid or otherwise unenforceable provision as may be possible while also being legal, valid and enforceable. If any provision of this agreement is determined to be invalid or unenforceable, all other provisions shall remain in full force and effect and said provision shall be reformed only to the extent necessary to make it enforceable.

42. Entire Agreement
This Agreement, including any and all documents incorporated herein by reference, constitutes the complete and entire agreement between Provider and You with respect to the subject matter hereof; and this Agreement supersedes any written, electronic, or oral communication You may have had with Provider, or any agent or representative thereof, and supersedes all prior and contemporaneous agreements, contracts, proposals, understandings and negotiations with respect to such subject matter. No promises, representations, understandings or warranties have been made or extended by any party hereto other than those expressly set forth herein; and 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 Provider’s Services hereunder. Provider reserves the right to modify this Agreement at any time. In the event this Agreement is modified by Provider, User will be notified by e-mail. The most current Agreement will be made available on Provider’s web site.

43. No Assignment
You shall not assign this Agreement without Provider’s prior written consent.

44. Authority
Individually, or as the person or the authorized representative of the legal entity responsible for the use of Provider’s Services, You warrant and represent that You are at least 18 years of age; that You are authorized to enter into this Agreement by whatever entity You represent; that all necessary internal actions, including but not limited to board resolutions or corporate authorizations necessary to the effectiveness of this Agreement, have occurred; and that the execution of this Agreement has been duly approved and ratified by such entity.

45. Acknowledgment
Placing and/or continuing to maintain or place information on Provider’s hardware and/or servers, whether directly by You, at Your direction or otherwise, constitutes Your acknowledgment that You have read and understood the terms conditions of this Agreement, including all documents incorporated  herein by reference, and that You agree and continue to agree to be bound thereby. The terms and conditions of this Agreement, including without limitation Provider’s 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.

46. NO WARRANTIES; LIMITATION OF LIABILITY; FORCE MAJEURE.
PROVIDER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES AND/OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, FOR THE SERVICES BEING OFFERED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE AND/0R NON-INFRINGEMENT, AND/OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND/OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AND NO ADVICE OR INFORMATION GIVEN BY PROVIDER OR ITS MANAGEMENT OR AGENTS OR EMPLOYEES HAS CREATED OR SHALL CREATE A WARRANTY. IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY CLAIM ARISING FROM OR RELATED TO CUSTOMER’S BUSINESS, OR ARISING OUT OF OR RELATED TO THE PROVISION OF SERVICES PURSUANT TO THIS AGREEMENT OR THE TERMINATION OF SUCH SERVICES, INCLUDING CLAIMS FOR DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS.

PROVIDER’S SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
UNDER NO CIRCUMSTANCES SHALL PROVIDER BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN ANY WAY CAUSED BY OR RESULTING FROM EQUIPMENT DAMAGE, EQUIPMENT FAILURE, LOSS OF DATA, DELAYS, NON-DELIVERIES, OR SERVICE INTERRUPTIONS, WHETHER SAID CONDITIONS ARE CAUSED BY PROVIDER’S NEGLIGENCE OR BY YOUR NEGLIGENCE OR MISUSE, OR CAUSED BY YOUR INABILITY TO USE THE SERVICE, OR RESULTING FROM THIRD PARTIES’ USE OF THE SERVICE TO ACCESS YOUR WEB SPACE OR THE INTERNET OR ANY PART THEREOF, OR CAUSED BY YOUR OR ANY THIRD PARTIES’ RELIANCE ON OR USE OF INFORMATION, SERVICES, OR MERCHANDISE PROVIDED ON OR THROUGH PROVIDER’S SERVICES, OR CAUSED BY MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE WHATSOEVER OF PERFORMANCE.

YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF PROVIDER’S SERVERS AND THE INTERNET. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT PROVIDER HAS NOT WARRANTED, GUARANTEED OR PROMISED THAT PROVIDER’S SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR SECURE, OR THAT SAID SERVICES WILL PERFORM AT A PARTICULAR SPEED; OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH PROVIDER OR ITS SERVICES IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.

PROVIDER HAS NOT MADE ANY WARRANTIES, GUARANTEES OR PROMISES WITH REGARD TO THE EXACT DATE OF THE COMPLETE INSTALLATION AND/OR OPERATIONAL STATUS OF SERVICE TO CUSTOMER.

BY PLACING INFORMATION ON PROVIDER’S HARDWARE AND/OR SERVERS, YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT SUCH INFORMATION BECOMES AVAILABLE OR MAY BECOME AVAILABLE TO ALL INTERNET USERS; AND YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT PROVIDER HAS NO WAY OF LIMITING OR RESTRICTING ACCESS TO SUCH INFORMATION OR PROTECTING SUCH INFORMATION FROM COPYRIGHT INFRINGEMENT. YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, QUALITY AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES AND OTHER INFORMATION PROVIDED THROUGH PROVIDER OR ON THE INTERNET GENERALLY, AS WELL AS THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE.

PROVIDER SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DELAYS IN THE PERFORMANCE OF SERVICES HEREUNDER OR FOR ANY FAILURE TO PERFORM HEREUNDER IF SUCH DELAYS OR FAILURES ARE DUE TO STRIKES, INCLEMENT WEATHER, ACTS OF GOD, OR OTHER CAUSES BEYOND PROVIDER’S REASONABLE CONTROL. PROVIDER WILL NOT BE RESPONSIBLE FOR PERFORMANCE OF ITS OBLIGATIONS HEREUNDER WHERE DELAYED OR HINDERED DUE TO WAR, RIOTS, EMBARGOS, STRIKES, OR OTHER ACTS OF ITS VENDORS AND SUPPLIERS, CONCEALED ACTS OF WORKMEN (WHETHER PROVIDER OR OTHERS), OR ACCIDENTS. SHOULD SUCH OCCURRENCE CONTINUE FOR MORE THAN 90 DAYS, PROVIDER OR CUSTOMER MAY CANCEL SERVICE FOR THE AFFECTED SERVICES AND/OR PRODUCTS WITH NO FURTHER LIABILITY; AND PROVIDER WILL NOT BE LIABLE FOR ANY ACT, OMISSION TO ACT, NEGLIGENCE OR DEFECT IN THE QUALITY OF SERVICE OF ANY UNDERLYING CARRIER OR OTHER SERVICE PROVIDER WHOSE FACILITIES OR SERVICES ARE USED IN FURNISHING ANY PORTION OF THE SERVICE RECEIVED BY THE CUSTOMER; NOR WILL PROVIDER BE LIABLE FOR ANY FAILURE OF PERFORMANCE THAT IS CAUSED BY OR THE RESULT OF ANY ACT OR OMISSION BY CUSTOMER OR ANY OTHER ENTITY THAT FURNISHES SERVICES, FACILITIES, OR EQUIPMENT USED IN CONNECTION WITH PROVIDER’S SERVICES OR FACILITIES.

ANY CLAIM OR LEGAL ACTION ARISING OUT OF FAILURE, MALFUNCTION OR DEFECT IN PROVIDER’S SERVICES OR GOODS, OR ARISING FROM THIS CONTRACT IN ANY RESPECT, SHALL BE BROUGHT WITHIN A PERIOD OF NINETY (90) DAYS FOLLOWING THE OCCURRENCE OF SAID CLAIM OR SAID CLAIM SHALL BE DEEMED WAIVED.

IF YOU ARE DISSATISFIED WITH PROVIDER’S SERVICES OR POLICIES OR PRACTICES OR ANY OF THIS AGREEMENT’S TERMS AND/OR CONDITIONS YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING PROVIDER’S SERVICES.

Copyright 2005 Club Associates. All rights reserved.