Parties. This agreement is between DigiTex.com ( PROVIDER ) and the party as specified in the application ( CLIENT).
INTERNET Services only. This agreement covers the INTERNET services only. Not covered by this agreement are the hardware, the communication lines and/or the software for access to the INTERNET, although the provider can sell those to the client subject to a different contract.
Price change. PROVIDER has the right to change the price of the services at any time with 30 days notice.
Start of services. The Services will be activated usually the same or next working day provided that the CLIENT has everything to be on the Internet. A schedule will be provided otherwise. The Schedule for line installation, domain activation, equipment and software setup and services activation is an estimate only.
Quality of Services. PROVIDER will make the best efforts to provide quality and uninterrupted services.
Fees. CLIENT agrees to pay setup fee, access fee, usage fee (if any), and web traffic fee (if any). The setup fee and first payment is due upon sign up. PROVIDER will present a fee schedule to CLIENT before sign up.
Collateral. CLIENT’s servers and other equipment located at PROVIDER’s premises will be used as collateral for unpaid bills and penalties. Such servers and equipment will not be released until CLIENT pays his bills and/or penalties in full.
Late Payment. Dialup CLIENT agrees to pay a one time penalty of $6.00 for each account 20 days or more past due.
Hosting CLIENT agrees to pay a one time penalty of 10% of the amount due plus 5% per month for delayed payments.
Billing information updates. CLIENT agrees to provide to PROVIDER any changes to the billing information promptly. This includes credit card info, address, phone, checking account info etc.
Acceptable use policy. CLIENT agrees to comply strictly with PROVIDERS “Acceptable use policy”. CLIENT understands that the services are subject to immediate termination without compensation for non-compliance with the “Acceptable use policy”. Further, CLIENT will be responsible for the full amount of any tangible and intangible damages this may cause. PROVIDER reserves the right to change the “Acceptable use policy” from time to time to reflect the dynamic nature of the Internet. “Acceptable use policy” is available on-line any time at http://www.digitex.com/legal/usepolicy.htm or as a hard copy by request only.
Keep harmless. CLIENT agrees to keep PROVIDER harmless if CLIENT’s actions or non-actions on the INTERNET create any legal responsibilities.
Account sharing. CLIENT agrees to keep his account information confident. PROVIDER shall not be responsible for lack of privacy, large overtime bills or any other consequences of account sharing. Sharing of any account is not allowed. PROVIDER will cancel without any compensation any account used by more than one user.
Unlimited attended usage. All unlimited attended dialup-up usage accounts are subject to the following restrictions: Click Here
Right of refusal. PROVIDER has the right to refuse services to anyone
LIMITED LIABILITY. PROVIDER shall not be liable under any circumstances for any special, consequential, incidental or exemplary damages arising out of or in any way connected with this agreement or the product, including but not limited to damages for lost profits, loss of use, lost data, phone bills, communication lines bills, loss of privacy, damages to third party even if PROVIDER has been advised of the possibility of such damages. The foregoing limitation of liability shall apply whether any claims based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose or otherwise. Further, PROVIDER will not censor any content on the INTERNET. It will be CLIENT’s responsibility for the usage of his account and any consequences of this usage.
Refunds DigiTex.com offers a 10 day money back satisfaction guarantee. DigiTex.com will refund service fees and connection fees if user notifies us within the 10 day limit. (repair work or installation fees will not be refunded) Refunds will be mailed to address shown on application within 30 days from customer’s termination. No refund will be made in CASH, no matter how the account was paid. All checks are required to clear our bank prior to refund. All credit card charges will be credited to the original credit card used. Refunds issued after the initial 10 day period will be charged a $25.00 early cancellation fee.
Cut off period for billing errors. 90 days cut off period is set for billing error claims. CLIENT agrees that he has no rights to claim any billing errors for period earlier than 90 days from the date of the claim. All bills are final after 90 days.
Terms. CLIENT can terminate the services with advance notice in writing only to the billing department by mail or e-mail billing@DigiTex.net. CLIENT understands that there will be no reimbursement and no pro-rate if he decides to terminate the services before the end of a prepaid term, regardless of the reason for the termination. PROVIDER can terminate this agreement at the end of a billing period, with a 30 days notice. PROVIDER can terminate the agreement immediately without any compensation if CLIENT does not comply with the “Acceptable use policy” available on-line at this address http://www.digitex.com/usepolicy.htm
Entire Agreement. This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings and agreements between the parties with respect to the subject matter hereof, all of which representations, communications, understandings and agreements are hereby canceled to the extent they are not specifically merged herein. The parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein.
Modification. This Agreement shall not be modified, amended, canceled or in any way altered, nor may it be modified by custom and usage of trade or course of dealing, except by an instrument in writing and signed by both of the parties hereto.
Waiver. Performance of any obligation required of a party thereunder may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. The waiver by either party hereto of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.
Separability. If any provision of this Agreement shall be unlawful, void, or for any reason, unenforceable, it shall be deemed separable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this Agreement, which shall remain valid and enforceable according to its terms.
Governing Law. This Agreement was entered into in the State of Texas, Johnson County and its validity, construction, interpretation and legal effect shall be governed by the laws and judicial decisions of the State of Texas applicable to contracts entered into and performed entirely within the State of Texas.
Choice of Forum. Any action at law or in equity arising under this Agreement shall be filed only in Courts of the State of Texas for the County of Johnson. The parties hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
Authority to Execute. Each of the parties to this Agreement represents and warrants that it has full power to enter into this Agreement and that it hasn’t assigned, encumbered, or in any manner transferred all or any portion of the claims covered by this Agreement.
Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has received advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement. Further, each party and their counsel have cooperated in the drafting and preparation of this Agreement. It shall be deemed their joint work product and may not be construed against any party be reason of its preparation or word processing.
Benefit of Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto, and except as otherwise provided herein, their respective legal successors and permitted assigns.
Cumulative Remedies. Except as specifically provided herein, no remedy made available to either party hereunder is intended to be exclusive of any other remedy provided hereunder or available at law or in equity.
No Partnership or Agency. Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment relationship, franchise relationship or taxable entity between the parties, nor shall either party have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other party hereto, it being understood that the parties are independent contractors vis-a-vis one another.
No Third Party Beneficiaries. Nothing contained in this Agreement, express or implied, shall be deemed to confer any rights or remedies upon, nor obligate any of the parties hereto, to any person or entity other than such parties, unless so stated to the contrary.
Excused Performances. Provider shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Services, resulting directly or indirectly from acts of God, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes and disturbances, fire, transportation contingencies, shortages of facilities, fuel, energy, labor or materials, or laws, regulations, acts or order of any government agency or official thereof, other catastrophes, or any other circumstances beyond Provider’s reasonable control. In the event of any such delay or failure, the parties shall defer performance of the Services to a date and time mutually agreeable.
Captions. The section headings and captions contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement.
Gender. Where the context so requires, the masculine gender shall include the feminine or neuter, and the singular shall include the plural and the plural the singular.
Recitals. The recitals above set forth are incorporated herein by reference.
Arbitration. Any dispute arising under this agreement shall be resolved by binding arbitration under the rules of the American Arbitration Association.