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1. GENERAL. All provisions of CIS's Service Agreement ("Agreement") apply to the Customer's Principal Account and Associate Accounts billed to the Principal Account. The benefits of or rights conferred by this agreement are nontransferable. Use of CIS's accounts is expressly limited to the individual or business whose name appears on the account and dependents of the account holder living at the same address. If Customer is less than 18 years of age, Agreement must be signed by a parent or legal guardian, who is responsible for all charges related to use of Customer's account(s). CIS reserves to right to change without notice the Company's service, including, but not limited to, access procedures, hours of operation, menu structures, commands, documentation, vendors and services offered.
2. DATA AND PROPRIETARY RIGHTS IN DATA. Customer acknowledges that CIS provides certain Data Services to Customer ("Services") and that (i) the Services provided by CIS hereunder contain trade secrets belong to CIS; (ii) the Services provided by CIS hereunder are proprietary to CIS and Customer shall not disassemble, decompile, or otherwise reverse engineer any product delivered to Customer by CIS or otherwise attempt to learn the source code, structure, algorithms, or ideas underlying the products; (iii) Customer agrees not to provide, lease, lend, use or otherwise allow others to use the Services to or for the benefit of third parties and (iv) Customer will not modify, incorporate into or with other software or create a derivative work of any part of the Services.
3. TERMS AND CREDIT. Customer agrees to pay CIS all charges relating to the use of Customer's account(s) according to rates and prices stated on invoices at the time of commencement in U.S. Dollars. Invoices are sent on or about the 15th day of each month. Payment is due by the date indicated on the invoice. Payments more than 15 days late will be subject to a charge of one and on-half percent (1 1/2%) per month or the maximum rate of interest allowed by law, whichever is less. In addition, a late charge of ten dollars (US$10.00) will be assessed. Returned checks will result in a twenty dollar (US$20.00) fee to be charged to the Customer. Accounts unpaid 60 days after date of invoice may have their service interrupted. Such interruption does not relieve Customer from the obligation to pay the full amount due.
4. TAXES. In addition to any price specified herein, Customer shall be responsible for the gross amount of any present or future federal, state, municipal or other government sales, use, excise, value added or other similar taxes applicable to the price, sales or delivery of any Services furnished here under or to their use by Customer.
5. ACCEPTABLE AND LAWFUL USE. Any material published by Customer in connection with the use of services provided by CIS must not violate or infringe any copyright, trademark, patent, statutory, common law or proprietary rights of others, or contain anything threatening, obscene or libelous. Customer must abide by the Acceptable Use Policy (Appendix A) of CIS. Any violation of the Acceptable Use Policy may result in the suspension or cancellation of services provided to Customer by CIS without notice.
6. SECURITY. No information contained in any transmission or otherwise exchanged between Customer and CIS shall be considered confidential except to the extent provided by written agreement between the parties. Customer shall be responsible for creating back-up copies of any information it delivers or receives from CIS. CIS is not responsible for Customer's personal files residing on CIS's equipment. Customer shall properly use those security procedures that are reasonably sufficient to ensure that all transmissions of information are authorized and to protect its business records and data from improper access.
7. LIMITED WARRANTY. The services are provided to Customer on an "as is, as available" basis and CIS makes no other warranties, statutory, express or implied, with respect to products or services supplied under this Agreement and disclaims all other warranties, including the warranties of merchantability, fitness for particular purpose and noninfringement. This provision states Customer's exclusive and sole remedy for breach of warranty and the entire extent of CIS's liability for defective products.
8. LIMITATION ON CIS'S LIABILITY. In no event shall CIS be liable under any contract, torts, negligence, strict liability or other legal theory for (a) damages in excess of the purchase price or (b) any special, consequential, incidental or indirect damages (including without limitation loss of profit, loss of savings, loss of or damage to data, loss of goodwill, computer failure or malfunction or any and all other commercial damages or losses) whether or not CIS has been advised of the possibility of such loss and however caused. This exclusion includes any liability that may arise out of third-party claims against Customer. In no event will CIS be liable for costs of procurement of substitute goods by Customer. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
In addition, CIS shall not be liable to Customerfor any incidental, consequential, indirect or special damages arising or resulting from any delay, omission or error in the electronic transmission or receipt of any order or contract pursuant to this agreement. Without limiting the obligations of Customer under this agreement, CIS shall not be liable for any failure to perform its obligations where such failure results from any cause beyond CIS's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference) that prevents such party from transmitting or receiving orders or contracts.
9. CANCELLATION AND TERMINATION. No cancellation of this agreement by Customer for default shall be effective unless and until CIS shall have failed to correct such alleged default within ninety (90) days after receipt by CIS of a written notice specifying such default. In the event of Customer's default in payment of the products or services purchased hereunder, Customer shall be responsible for all reasonable costs and expenses incurred by CIS in collection of any sums owing by Customer (including reasonable attorney's fees), and CIS may decline to provide Services to Custoemr without in any way affecting its rights under this contract. If, despite any such breach by Customer, CIS elects to continue to provide Services, such provision of Services shall not constitute a waiver of any breach by Customer or in any way affect CIS's legal remedies arising from such breach. Should Customer elect to cancel this agreement, Customer shall be liable to CIS for reasonable cancellation charges. If Customer becomes bankrupt or insolvent, or files or has filed against it any petition in bankruptcy, or makes an arrangement for the benefit of its creditors, or suffers a receiver or similar party to be appointed, CIS shall be entitled to cancel this contract or any order then outstanding without judicial intervention or declaration of default of Customer and without prejudice to any right or remedy which shall have accrued or shall thereafter accrue to CIS.
10. ENTIRE AGREEMENT. It is intended that this agreement, in the absence of a separately negotiated contract, shall be the final expression of the entire agreement between the parties hereto with respect to the subject matter hereof and shall be a complete and exclusive statement thereof, superseding all prior or written or electronic agreements, orders, understandings, stipulations or negotiations with respect hereto. The terms and conditions hereof cannot be varied, altered, modified or abandoned in whole or in part, except by an agreement in writing signed by parties hereto subsequent to the date hereof, and in any event, acceptance by Customer of any Services provided by CIS shall constitute unqualified acceptance of CIS's terms and conditions of sale as herein set forth. No employee of CIS has authority to waive verbally or otherwise, any term or condition hereof except by a written document signed by an executive officer of CIS.
11. CUSOTMER'S PURCHASE ORDER. CIS will not be bound by any terms of Customer's order that are inconsistent with the terms of this agreement. All orders are subject to acceptance by CIS. No form of acceptance except CIS's written acknowledgement mailed to Customer or CIS's commencement of performance shall constitute a valid acceptance of a Customer's Order. Any such acceptance is expressly conditioned on assent to the terms hereof and the exclusion of all other terms; the Customer shall be deemed to have assented to the terms hereof, whether or not previously received, upon accepting delivery of anything shipped by CIS or by use of any service privided by CIS. If tender of these terms is deemed an offer, acceptance is expressly limited to the terms hereof.
12. GOVERNING LAW: JURISDICTION. This agreement shall be governed by and enforced in accordance with California law as applied to contracts entered into in California by California residents to be performed entirely within the State of California, without reference to its conflict of law principles. The parties agree that the exclusive jurisdiction and venue of any action with respect to this contract shall be the state courts of Orange County, California (or, if there is federal jurisdiction, the United States District Court for the Southern District of California).
13. VALIDITY AND ENFORCEABILITY. The terms and conditions hereof are binding on the parties whether transmitted between the parties in paper format or electronically. In the case of an electronic transmission the parties agree not to contest the validity or enforceability of these terms and conditions under the provisions of any applicable law relating to whether certain agreements are to be in writing or signed by the party to be bound thereby. If introduced as evidence in paper format in any judicial, arbitration, mediation or administration proceeding, both parties agree that the terms and conditions hereof will be admissible against either party to the same extent and with the same force as other documents originated and maintained in paper format.
14. NOTICES. Any notices required or permitted to be given shall be in writing, sent via the United States mail or otherwise delivered personally to such addresses as may be specified from time to time and such notice shall be deemed to be given when sent.
15. ERRORS. Stenographic and clerical errors are subject to correction.
16. SEVERABILITY. In the event that any provision of these terms and conditions shall be declared void and unenforceable by a court of competent jurisdiction, the remaining provisions herein shall remain in full force and effect.
17. ASSIGNMENT. This contract shall bind and inure to the benefit of CIS's successors and assigns, including without limitation, any entity into which CIS shall merge or consolidate. Customer may not assign any of Customer's rights or obligations under this contract without CIS 's prior written consent. Any attempted assignment, delegation, or transfer by Customer without such consent of CIS shall be void.
18. COMPUTER VIRUS. Customer agrees to hold CIS harmless for any and all damage caused to Customer in any manner whatsoever, if such damage is a result of a computer virus or the like contract by Customer's computer system or network during the time Customer is connected to CIS's database, CIS's network, CIS's systems or occurs during the electronic transmission of any information between the parties.
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