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The
following terms of service (these "Terms of Service" or
this “Agreement”) govern the provision by
DOMINIOSENLINEA.COM. ("Dominios en Linea") to the
customer executing this online transaction ("Customer"),
of the products and services described in (i) the Order
Form submitted in connection with this online
transaction (the “Order Form”), (ii) the Service Level
Agreement (as in effect from time to time and set forth
on Dominios en Linea’s website, the “SLA”) governing the
Customer’s limited right to recover certain service
credits and (iii) Dominios en Linea’s technical support
descriptions (collectively clauses (i) through (iii),
the "Products and Services"). These Terms of Service
shall be effective as of the date that Customer executes
its online transaction and thereby accepts these Terms
of Services (the “Effective Date”). These Terms of
Service hereby incorporate by reference the SLA, Dominios
en Linea’s Acceptable Usage Policy (as in effect from
time to time as set forth on Dominios en Linea’s website,
the “AUP”) and the Order Form each of which is made a
part of these Terms of Service and collectively referred
to herein as the “Agreement.” Capitalized terms used
herein without being defined herein shall have the
meaning ascribed to such capitalized term in the SLA or
AUP, as applicable. Customer’s use of Dominios en
Linea’s website, Dominios en Linea Network, Products and
Services is also subject to Customer’s acceptance and
compliance with Dominios en Linea’s Privacy Policy which
Dominios en Linea hereby reserves the right to amend,
alter, modify, replace or suspend, from time to time in
its sole discretion. Current copies of Dominios en
Linea’s SLA, AUP and Privacy Policy may be reviewed or
printed by Customer at the Legal section of Dominios en
Linea’s website. CUSTOMER HEREBY REPRESENTS AND WARRANTS
THAT IT HAS READ, UNDERSTOOD AND ACCEPTED THE TERMS OF
THE SLA AND AUP. By submitting an Order Form online or
by using Dominios en Linea’s website, Dominios en Linea
Network (as defined in the SLA), products or services,
Customer hereby agrees to the terms and conditions of
the Agreement. 1. Services and Monthly Commitments. Dominios
en Linea agrees to provide the Products and Services in
accordance with the terms and conditions of this
Agreement beginning on the Effective Date. Dominios en
Linea may perform additional technical, supplemental, or
professional services (other than the Products and
Services) for Customer at either Dominios en Linea’s
published pricing rates or at rates mutually agreed to
in writing between Customer and Dominios en Linea. Also,
Dominios en Linea may perform remedial services as
provided for in the AUP at the pricing set forth therein
and without obtaining Customer’s consent in advance. If
a Customer subscribes for any Product and Service for a
term other than on a month-to-month basis, then each
month of such term Customer shall pay Dominios en Linea
the greater of (i) the actual fees and expenses payable
by Customer for the Products and Services for which
Customer has subscribed for such term (based on all
actual licensing and usage of such Products and Services
on a monthly basis) and (ii) the Minimum Monthly
Commitment. For purposes of this Agreement, “Minimum
Monthly Commitment” shall be determined each month and
shall mean with respect to each Product and Service
subscribed for by Customer other than on a month-to-month
basis, the greater of (A) the amount specified as the
“Minimum Monthly Commitment” in the Order Form
associated with the subscription for such Products and
Services and (B) the highest aggregate monthly amount
paid or payable by Customer with respect to all Products
and Services subscribed to for a term other than on a
month-to-month basis, during the current term for which
Customer subscribed for such Products and Services. If
for any month Customer’s aggregate monthly fees and
expenses actually paid or payable by Customer for the
Products and Services for which Customer has subscribed
for such term (based on all actual licensing and usage
of such Products and Services on a monthly basis) does
not exceed the Minimum Monthly Commitment, then Customer
shall pay the Minimum Monthly Commitment in lieu of the
charges that would otherwise be due with respect to such
Products and Services. All payments made by Customer
with respect to such Products and Services shall be
credited first towards the Minimum Monthly Commitment.
2. Term and Renewal. Unless Customer agrees to a one-year
term or unless otherwise stated in an Order Form or any
service description, the initial term (“Initial Term”)
of this Agreement shall be month-to-month, commencing on
the Effective Date and shall automatically renew (A) in
the case of a month-to-month term, the first day of each
month for successive one-month periods unless cancelled
or terminated earlier pursuant to the express terms of
this Agreement or (B) in the case of a one-year term,
each yearly anniversary of the Effective Date for
successive one-year periods unless cancelled or
terminated earlier pursuant to the express terms of this
Agreement (in each case, a “Renewal Period”). Customer
agrees to be bound by the service term selected on the
Order Form or via applicable promotional codes. Dominios
en Linea may cancel or elect not to renew the Products
and Services for any reason or no reason at all by
delivering to Customer a written notice of non-renewal
at least five (5) days prior to the expiration of the
Initial Term or the then-current Renewal Period, as
applicable. 3. Customer Cancellation or Non-Renewal. In
order to cancel or elect not to renew any Product or
Service, Customer must (i) submit an online service
cancellation request (a “Cancellation Notice”) by
completing the cancellation form provided for in Orbit (www.dominiosenlinea.com)
at least 7 days prior to expiration of the Initial Term
or the then-current Renewal Term and (ii) upon
submission of the Cancellation Notice Customer must
contact via telephone a Dominios en Linea customer
service representative to confirm the information set
forth on the Cancellation Notice, unless otherwise
instructed in writing by Dominios en Linea to do so
otherwise. CUSTOMER AKNOWLEDGES AND AGREES THAT NO
PRODUCT AND SERVICE WILL BE CANCELLED, ALL PRODUCTS AND
SERVICES SHALL CONTINUE TO RENEW AND CUSTOMER WILL
CONTINUE TO BE BILLED FOR ALL PRODUCTS AND SERVICES
UNLESS CUSTOMER CONFIRMS VIA TELEPHONE THE INFORMATION
PROVIDED IN THE CANCELLATION NOTICE AS PROVIDED IN
SECTION 3 CLAUSE (ii) ABOVE. 4. Termination. Dominios en
Linea may immediately terminate this Agreement at any
time, and without liability, upon the occurrence of any
of the following events (“Dominios en Linea Termination”):
(i) Customer’s failure to pay any overdue amount within
ten days after written notice by Dominios en Linea is
given to Customer or (ii) Customer’s material breach or
violation of any provision of this Agreement (other than
such violations set forth in clauses (iii), (iv) and (v)
below) that is not cured within ten (10) days of
Customer’s receipt of written notice from Dominios en
Linea referencing such breach or violation; (iii)
Customer ceasing to do business in the normal course,
becoming or being declared insolvent or bankrupt, being
the subject of any proceeding relating to liquidation or
insolvency which is not dismissed within ninety (90)
calendar days, or making an assignment for the benefit
of its creditors; (iv) Customer’s violation of the AUP
or the Privacy Policy; or (v) Dominios en Linea
determines in its sole discretion that Customer
continues to host content that may subject Dominios en
Linea to legal liability (in which case, Dominios en
Linea may terminate or modify the Products and Services
to avoid such liability). Customer may terminate this
Agreement with respect to all, and not less than all, of
the Products and Services without liability (except for
Charges due through the effective date of such
termination) upon the occurrence of a material breach by
Dominios en Linea of its obligations to provide the
Products and Services according to the terms of this
Agreement that is not cured within ten (10) business
days after written notice from Customer describing such
breach in detail is received by Dominios en Linea (“Customer
Termination”). In the event of a Customer Termination,
Customer shall pay (1) all outstanding amounts payable
through the effective date of such termination and (2)
if the Products and Services include software for which
Dominios en Linea does not then provide general customer
support, Customer shall pay to Dominios en Linea an
amount equal to Dominios en Linea's cost of such
software for the entire Initial Term and any applicable
Renewal Periods. If Customer terminates this Agreement
for any reason other than a Customer Termination,
Customer shall pay to Dominios en Linea an amount equal
to all unpaid Charges through the effective date of such
termination and (A) in the case of any Product and
Service subscribed for on a month-to-month basis, all
Charges for the Products and Services through the
remainder of the Initial Term or the then-current
Renewal Term, as applicable and (B) in the case of any
Product and Service subscribed for other than on a month-to-month
basis, all Charges for the Products and Services through
the remainder of the Initial Term or the then-current
Renewal Term, as applicable, calculated based upon the
then-current Minimum Monthly Commitment payable by
Customer upon the date of termination. CUSTOMER
ACKNOWLEDGES THAT CUSTOMER WILL NOT BE ENTITLED TO ANY
REFUND OR CREDIT IN THE EVENT THAT ANY PRODUCT OR
SERVICE THAT IS PROVIDED ON THE BASIS OF A ONE-YEAR TERM
IS TERMINATED, WITH OR WITHOUT CAUSE, PRIOR TO THE
EXPIRATION OF THE ONE-YEAR TERM. CUSTOMER HEREBY WAIVES
ALL RIGHTS TO ANY SUCH REFUND OR CREDIT. Upon
termination of this Agreement, Dominios en Linea and
Customer shall have no obligations to each other, except
as provided for in this Agreement. Upon termination of
this Agreement, Customer shall (i) pay all Charges and
other amounts due and owing to Dominios en Linea under
these Terms of Service, (ii) immediately remove from Dominios
en Linea's premises all property owned by Customer,
including, but not limited to, immediately removing all
of Customer’s data from Dominios en Linea Network (including
all servers owned or operated by Dominios en Linea), and
(iii) return to Dominios en Linea all software, access
keys, and any other property provided to Customer by Dominios
en Linea under this Agreement. Any physical property of
Customer not removed from Dominios en Linea’s premises
within forty-five (45) days after such termination shall
become the property of Dominios en Linea, which may,
among other things, dispose of such property without the
payment of any compensation to Customer. Sections 4, 5,
6, 7 and 8 shall survive the expiration, cancellation
and termination of this Agreement for any reason. 5.
Payment. Customer agrees to pay all charges, fees,
penalties, early cancellation charges, reconnection fees,
service interruption fees, installation fees and other
amounts due under this Agreement (collectively “Charges”)
in US dollars. Each Customer that is a Texas resident
agrees to pay all taxes applicable to its account.
Except as otherwise provided for herein, all Charges for
the Products and Services, and for any additional
services described herein, shall be invoiced to the
Customer and paid in advance of the Initial Term and
each Renewal Term (but may include any applicable pro-rated
amounts for partial months of for Products and Services
provided on a month-to-month basis) and shall be due and
payable upon receipt. Any additional one-time charges,
including early cancellation charges, accrued interest,
late fees, service reinstatement fees, and any usage-based
charges (installation or set-up fees) shall be invoiced
in arrears and appear on either regular monthly invoices
or separate invoices. Server rental charges are incurred
immediately at signup and are prorated by 3 days to
allow for server provisioning and delivery. Customer
also shall pay to Dominios en Linea all expenses
incurred by Dominios en Linea in exercising any of its
rights under this Agreement or applicable law with
respect to the collection of a payment default,
including attorneys' fees, court costs, and collection
agency fees. If Customer fails to pay any past due
amount within five (5) days after written notice by Dominios
en Linea is given to Customer, Dominios en Linea may
suspend performance under this Agreement and if such
past due amounts remain unpaid within five (5) days
thereafter, Dominios en Linea may terminate this
Agreement. Dominios en Linea may charge interest on any
invoice amounts that are overdue by more than ten (10)
days at the lesser of (a) 1.5% per month or (b) the
maximum non-usurious rate under applicable law. Customer
shall be deemed to have accepted as conclusively
accurate any invoice that it has not disputed in a
writing delivered to Dominios en Linea within sixty (60)
days of the invoice date. Customer may withhold the
disputed portions of payments that are properly and
timely disputed hereunder as long as it timely pays all
undisputed charges that are outstanding. The parties
shall work together in good faith to resolve any such
disputed charge. In the event that this Agreement is
terminated by Dominios en Linea for any reason
constituting “Dominios en Linea Termination” (as defined
above) or by Customer for any reason other than
“Customer Termination” (as defined above), all Charges
under the Agreement, including all remaining monthly or
yearly fees due for the remaining portion of the Initial
Term and each applicable Renewal Period, shall
accelerate and are immediately due and payable. All set-up
fees, monthly service fees and usage fees are non-refundable.
Customer shall not be entitled to any refunds or credits,
pro-rated or otherwise, in the event of early
termination of this Agreement by Dominios en Linea
according to the terms herein. 6. Indemnification.
Customer agrees to indemnify and hold harmless Dominios
en Linea, its subsidiaries, their affiliates and each of
their respective directors, officers, employees,
shareholders and agents (each an "Indemnified Party")
against any losses, claims, damages, liabilities,
penalties, actions, proceedings, judgments, or any and
all costs thereof (collectively, "Losses") to which an
Indemnified Party may become subject and which Losses
arise out of, or relate to the Agreement, Customer’s use
of the Products and Services, breach of any
confidentiality obligation or any alleged infringement
of any trademark, copyright, patent or other
intellectual property right and will reimburse an
Indemnified Party for all legal and other expenses,
including reasonable attorneys' fees incurred by such
Indemnified Party, in connection with investigating,
defending, or settling any Loss, whether or not in
connection with pending or threatened litigation in
which such Indemnified Party is a party. 7. Disclaimers;
Limitation on Company Liability. Dominios en Linea SHALL
NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR
LOSS OF REVENUE RESULTING FROM THE USE OF THE PRODUCTS
AND SERVICES BY THE CUSTOMER OR ANY THIRD PARTIES OR ANY
FAILURE OF THE PRODUCTS AND SERVICES OR (ii) ANY LOSS OF
DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES
OR SERVICE INTERRUPTIONS. IN NO EVENT SHALL Dominios en
Linea’S AGGREGATE LIABILITY FOR ANY CLAIM UNDER THIS
AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER
TO Dominios en Linea IN THE BILLING CYCLE IMMEDIATELY
PRECEEDING SUCH CLAIM. Dominios en Linea PROVIDES ALL
PRODUCTS AND SERVICES “AS IS,” WITHOUT WARRANTY OF ANY
KIND, WHETHER EXPRESS OR IMPLIED AND DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE
FOR THE SELECTION, USE AND SUITABILITY OF THE PRODUCTS
AND SERVICES AND Dominios en Linea SHALL HAVE NO
LIABILITY THEREFORE. NO CLAIM MAY BE ASSERTED BY
CUSTOMER AGAINST Dominios en Linea MORE THAN TWO (2)
YEARS FOLLOWING THE DATE OF THE EVENT THAT UNDERLIES ANY
SUCH CLAIM. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT
ITS SOLE REMEDY IN THE EVENT OF Dominios en Linea’S
FAILURE TO PROVIDE ANY PRODUCTS AND SERVICES IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AS A RESULT
OF A “QUALIFIED DOWNTIME EVENT” (AS DEFINED IN THE SLA)
SHALL BE THE RIGHT TO SERVICE CREDITS (AS DEFINED IN THE
SLA) SOLELY AS PROVIDED FOR IN THE SLA. 8. Miscellaneous
Terms. Notices. Unless otherwise specified herein, all
notices, requests and other communications hereunder
shall be sufficiently given if in writing and delivered
personally or sent by facsimile transmission,
internationally recognized overnight courier, or
registered or certified mail (return receipt requested)
to the address or facsimile number of Customer listed in
Dominios en Linea’s records or if to Dominios en Linea
then to the address set forth below. Such notices or
other communications shall be deemed to have been given
(a) on the date delivered (if delivered personally), (b)
on the date that return confirmation is received (if
sent by facsimile), (c) on the business day after being
sent by an internationally recognized overnight air
courier, or (c) five days after being sent (if sent by
registered or certified mail). DOMINIOSENLINEA.COM.
Carrera 33 #51a-26 Ed. La Fuente Of. 304 Bucaramanga
Colombia Attn: Legal Department Phone: +57 7 6577212
Fax: +57 7 6577212 Email: admin@dominiosenlinea.com .
Waiver.
It is agreed that no waiver by any party hereto of any
breach or default of any of the covenants or agreements
herein set forth shall be deemed a waiver as to any
subsequent and/or similar breach or default.
Severability. If one or more of the provisions contained
in this Agreement are found to be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not be
affected. Force Majeure. Neither party shall lose any
rights hereunder or be liable to the other party for
damages or losses on account of failure of performance
by the defaulting party if the failure is occasioned by
any occurrence or contingency beyond its reasonable
control, including war, strike, fire, Act of God,
earthquake, flood, lockout, embargo, governmental acts
or orders or restrictions, failure of suppliers, or any
other reason where failure to perform is beyond the
reasonable control of the nonperforming party; provided
that such party shall use commercially reasonable
efforts to promptly mitigate any damages or losses. Dominios
en Linea’s Use of Customer’s Name. Customer agrees that
Dominios en Linea may, upon written consent by Customer,
publicly disclose that Dominios en Linea is providing
services to Customer and may include Customer’s name in
any promotional materials, such as press releases or
Dominios en Linea’s web site. Neither party may publicly
use the other party’s logo or other trade or service
mark without that party’s written consent. Non-Solicitation.
During the term of this Agreement and for twelve (12)
months following termination of this Agreement, Customer
agrees that it shall not solicit for employment with
Customer (or with any other party) any employee of Dominios
en Linea or interfere in the employment relationship
between Dominios en Linea and any of its employees with
whom Customer has had contact in connection with this
Agreement. Ownership. Dominios en Linea shall be the
sole owner of all intellectual property, and all
derivatives thereof, that Dominios en Linea may develop
in the course of providing the Products and Services.
Each party to this Agreement retains exclusive ownership
and rights in its trade secrets, inventions, copyrights,
and other intellectual property. Upon termination of the
Agreement, Customer agrees to promptly release any
Internet protocol numbers, addresses, or address blocks
assigned to Customer in connection with the Products and
Services. Customer Hardware. Dominios en Linea
acknowledges and agrees that the hardware provided by
Customer to Dominios en Linea to be used in connection
with any Products and Services (the “Customer Hardware”)
is the property of Customer and shall be tagged and
identified as such. Dominios en Linea shall not pledge,
hypothecate or otherwise encumber the Customer Hardware
in any way and upon demand by Customer shall surrender
the Customer Hardware to Customer, unless Customer fails
to remove such Customer Hardware as provided for in
Section 4 above. Third-Party Beneficiaries. There shall
be no third party beneficiaries to the Agreement,
including customers, employees, agents, or insurers.
Assignment. This Agreement shall not be assignable by
Customer without Dominios en Linea’s prior written
consent. Dominios en Linea may assign the Agreement in
whole or in part upon written notice to Customer. This
Agreement shall be binding upon and accrue to the
benefit of any permitted assignee, and any such assignee
shall agree to perform the obligations of the assignor.
Governing Law, Jurisdiction, Venue. THIS AGREEMENT AND
ANY DISPUTE ARISING FROM THE PERFORMANCE OR BREACH
HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS,
WITHOUT REFERENCE TO CONFLICTS OF LAWS PRINCIPLES AND
EXCLUDING ANY APPLICATION OF THE UNITED NATIONS
CONVENTION ON THE INTERNATIONAL SALE OF GOODS. CUSTOMER
(I) HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS LOCATED
IN HARRIS COUNTY AND THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS, FOR THE PURPOSES OF
ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY BROUGHT BY THE CUSTOMER
OR Dominios en Linea OR THEIR RESPECTIVE SUCCESSORS OR
ASSIGNS, (II) HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS
IN RESPECT OF SUCH SUITS, ACTIONS OR PROCEEDINGS MAY BE
HEARD AND DETERMINED IN SUCH TEXAS STATE COURT OR, TO
THE FULLEST EXTENT PERMITTED BY LAW, IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
AND (III) TO THE EXTENT PERMITTED BY APPLICABLE LAW,
HEREBY IRREVOCABLY WAIVE, AND AGREE NOT TO ASSERT, BY
WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH
SUIT, ACTION OR PROCEEDING ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED
COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT
IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT
OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR
BY SUCH COURT. A FINAL JUDGMENT OBTAINED IN RESPECT OF
ANY ACTION, SUIT OR PROCEEDING REFERRED TO IN THIS
SECTION 7 SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT OR JUDGMENT OR IN ANY MANNER
AS PROVIDED BY APPLICABLE LAW. |
