1. INDEPENDENT PARTY
ASCI is an independent contracting party and no agency relationship has been established with the Client. No aspect of this Agreement, nor any activities of the Client arising directly or indirectly out of this Agreement, are intended to establish any partnership or joint venture between Client and ASCI.
2. STANDARD OF CARE/WARRANTY DISCLAIMER
The standard of care applicable to the Professional Consulting / Information Technology (PC/IT) or Internet Service Provider (ISP) services arising under this Agreement will be the degree of skill and diligence normally employed by PC/IT consultants or ISP's performing the same or similar services. No further warranty of guaranty, expressed or implied, is made with respect to the services furnished hereunder and all implied warranties are hereby disclaimed including the warranty of merchantability and fitness for a particular purpose. ASCI does not warrant that its service will be free from interruptions or error or that any information or software accessible on the Internet will be free of viruses or other harmful components.
3. INDEMNIFICATION & LIMITATION OF LIABILITY
Client agrees to indemnify defend and save harmless ASCI from and against any and all liabilities, demands, claims, penalties, damages, forfeitures, suits, actions, legal or administrative proceedings and the costs and expenses incident thereto including the costs of defense, settlement and reasonable attorneys' fees asserted against or incurred by ASCI arising out of directly or indirectly the services provided by ASCI, or its operating divisions of ASCInet or ASCI Services, under this Agreement. Such damages include, but are not limited to, loss of or damage to property (including loss of use thereof), alleged injury or death of any person, direct or indirect, incidental, special, punitive, or consequential damages.
Notwithstanding the above, ASCI's liability for damages resulting from services shall be limited to a sum not to exceed ASCI's fee. This limitation will apply regardless of the form of action or claim, whether contractually or tort, under any theory of liability including strict liability, including without limitation negligence. This limitation also applies as a result of the users use or inability to access the Internet through ASCI's system, or the users reliance on information obtained on the Internet, including services or merchandise purchased on the Internet, or services that result from errors and omissions, defects, delays, failures, viruses, telecommunication line failures, theft, destruction, or alteration of users accounts. In the event Client makes any claim against ASCI, and Client fails to prove such claim, then Client shall be responsible for costs and expenses ASCI incurred in defending itself against the claim, including its reasonable attorneys' fees.
4. DELAY OF SERVICES
In the event that ASCI or any of its subconsultants or subcontractors is delayed at any time in the performance of its services arising under this Agreement or by any act or neglect of the Client, or any representative, contractor or employee of Client, or by labor disputes, fire and other casualty, unusual delay in transportation, inclement weather, act of war or government preemption, or any delay in the specific tasks set forth herein, or any delay in approval by any governmental body, or any causes beyond ASCI's control, or by delay authorized by the Client pending resolution of a dispute, or any significant modification or changes in the services being performed by ASCI, then the time for performance shall be extended to provide ASCI with an appropriate time to complete the services. ASCI shall not be responsible for and the Client shall hold ASCI harmless from any expenses or other consequences resulting from such delays
5. OWNERSHIP AND REUSE OF DOCUMENTS
All documents, including original drawings, estimates, specifications, notes and other data prepared by ASCI pursuant to this Agreement are and remain the property of ASCI as instruments of services of ASCI. They are not intended or represented to be suitable for reuse by the Client or others on any other project. Any reuse without written verification or adaptation by ASCI for the specific purpose intended will be at Client's sole risk and without liability to ASCI and the Client shall indemnify and hold ASCI harmless from all claims and damages, losses, expenses, including attorneys fees, arising out of or resulting either directly or indirectly from the improper use thereof.
6. ASSIGNMENT AND THIRD PARTY BENEFICIARIES
This Agreement and its obligations shall be binding upon the successors, assigns, executors, and the legal representatives of both ASCI and the Client. Client shall not assign or transfer any rights or obligations hereunder, or interest in this Agreement, without the written consent of ASCI. ASCI may assign this agreement to its subsidiaries and affiliates as appropriate. Nothing in this Agreement shall create any rights or benefits to any other party, including third party beneficiaries.
7. INTELLECTUAL PROPERTY
Client recognizes that the PC/IT or ISP services arising out of this Agreement may either directly or indirectly involve the development, implementation or use of ASCI patents, copyrights, trademarks and trade secrets. ASCI shall retain all rights arising under this Agreement which involve its interest in the development, implementation, use and application of patents, copyrights, trademarks and trade secrets. Client further agrees to indemnify and defend ASCI from any actual or asserted loss from the disclosure of intellectual property to outside or third parties or the use of any ASCI intellectual property without the express written consent of ASCI. This indemnification does not extend to property that was a) in the public domain at the time it was disclosed, or b) becomes part of the public domain without breach of this Agreement, or c) was independently developed by the receiving party, or d) is disclosed pursuant to the provisions of a court order.
8. ARBITRATION / LAWS / ORDER OF PRECENDENCE
All claims disputes and other matters in question arising out of this Agreement, or the breach thereof, which can not be immediately resolved between the Client and ASCI shall be decided by arbitration in accordance with the Arbitration Rules of the American Arbitration Association unless the parties mutually agree otherwise. No arbitration arising out of or relating to this Agreement shall include by consolidation, joinder, or in any other manner, any additional person not possessing contractual privity to this Agreement. Arbitration under this Agreement shall take place in Columbus, Ohio. The demand for arbitration shall be made within a reasonable time and in no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute, or other matter in question would be barred by the applicable statute of limitations. This Agreement and all rights and obligations of the parties hereunder, and any disputes arising out of this Agreement shall be construed and governed by the laws of the State of Ohio.
To the extent they are inconsistent or contradictory, the express terms of this Agreement its attachments take precedence over any document or proposal offered by Client or ASCI. To the extent that any provision is held invalid, then that provision shall be deemed to be deleted and the remaining provisions shall remain in full force and effect.
9. NONDISCLOSURE OF ASCI BUSINESS PROPRIETARY AND CONFIDENTIAL INFORMATION
Client recognizes that ASCI may provide services, equipment, drawings, specifications, notes, estimates, and other datum to Client for use in their normal business operations which may intrinsically be either business proprietary or confidential to ASCI, the release of which, to outside parties, may cause irreparable harm to ASCI's ability to compete in the marketplace. Client shall take all reasonable and precautionary measures to protect ASCI business proprietary and confidential information. Nothing contained in the non-disclosure aspect of this Agreement shall, by express grant, implication, estoppel or otherwise, create in either party any right, title, interest, or license in or to the inventions, patents, technical data, computer software, or software documentation of the other party.
10. SPECIAL CONDITIONS FOR INTERNET SERVICES
Client agrees to bear risks associated with subject matter, accuracy, or usefulness of content available from ASCI or the Internet. Client also agrees that ASCI has the right to remove any content from ASCI's computers, servers, or any property owned by ASCI at any time, at ASCI's sole discretion. Client also agrees that it shall not transmit any data through ASCI's services or any material that, in ASCI's sole discretion, is threatening, abusive, libelous, or encourages conduct that is contrary to public morality standards, give rise to civil or criminal liability, or violates any local, state, national or international laws, statutes, or regulations. ASCI does not own, represent, or have influence over the content of material on the Internet, therefore Client agrees that it is solely responsible for and shall take every necessary precaution to prevent any offensive material from being viewed or accessed by those under the legal age of consent. Client agrees to indemnify and save harmless ASCI for any action or inaction with respect to content posted on or through ASCI's ISP and the Internet.
This service may provide access to content that is protected by copyrights, trademarks, and intellectual property rights of third parties. Client agrees that all use of content through this agreement is governed by all applicable laws and regulations and any additional restriction that may be placed on the material by its owner. Client further agrees not to post or transmit content that is subject to another party's rights, on or through the Internet or ASCI's ISP without the party's express permission.
Client's use of the Internet is solely at its own risk. ASCI provides no warranty, express or implied and Client's sole remedy for use of ASCI's ISP is limited to the extent permitted by law. Client agrees to indemnify ASCI for any breach of agreement in accordance with the provisions contained in paragraph 3 above.
Client agrees to not engage in prohibited or abusive activities on the Internet. Such activities may include the posting in any manner material in print, graphic or visual arts, audio, or any other communication form such material that amounts to fraud, false advertising, copyright or trademark violations, patent infringements, trade secret violations, obscenity, threats, harassments, inappropriate material, chain letters, any sexually explicit materials or materials that may be offensive, any transmission that encourages conduct that would result in a criminal offense, posting or publishing any software which contains a virus, violate the security system of any computer network or attempt to bypass or overcome encryption codes illegally, or deceive or defeat the intentions of any idle time or unattended usage/auto time out detection methods.
ASCI's ISP service does not provide back up for email accounts.
Client agrees to abide by the ASCInet "Acceptable Use Policy" and ASCInet "Privacy Statement"
11. EARLY TERMINATION CHARGES
Client agrees that it shall be responsible for any applicable early termination charges as a result of service termination.