eTraffic service agreement

1. Parties. This agreement is between Aplus.Net (PROVIDER) and the party as specified in the on-line application or the signature line below (CLIENT).
2. eTraffic services only. This agreement covers the eTraffic services only. Other Internet services by the same PROVIDER are available at www.aplus.net  and are subject to one or more other agreements.
3. Services provided. PROVIDER agrees to refer certain number of visitors to CLIENT’s web site for a fee. The number of visitors as well as the service fee varies per plan and it is listed at PROVIDER’s web site and subscription form. PROVIDER will apply the best effort to qualify the visitors by using specific keywords. The commitment is on annual basis beginning from the starting date of this agreement as defined in the “Terms” below.
4. Service refusal. PROVIDER reserves the right to refuse services to anyone at its sole discretion.
5. Terms. This agreement starts at the date when the first payment is received from the CLIENT. The agreement is for one year and automatically renews for another year unless either party sends a cancel notification to the other party within 30 days before the expiration. The agreement terminates automatically for a material breach (see below).
6. Ruling reports. PROVIDER’s reports about number of visitors rule. PROVIDER may generate its own reports or use reports from its vendors.  No other reports will be considered including any reports by CLIENT or third party reports brought by CLIENT.
7. Client’s cooperation. CLIENT agrees to cooperate with PROVIDER in determining what keywords best describe CLIENT’s business. PROVIDER reserves the right for final decision. If client does not return more than 3 calls or does not respond to request for cooperation for more than 3 weeks, than material breach of this agreement will take place and service will be terminated without any remedies to the client.
8. Client’s web site. CLIENT agrees to keep the subject of his web site unchanged during the term of the service. Significant subject change of CLIENT’s web site will be considered material breach of this contract and the contract will terminate.
9. Fees. CLIENT agrees to pay a setup fee and monthly fee in accordance with the plan specification. PROVIDER will charge 1.5% per mo. late fees, or the maximum permitted by the law. Lack of payment is material breach of this contract and will result in contract termination without any remedy to the client.
10. No refunds. PROVIDER will not refund service fees under no circumstances.
11. Termination for material breach. In case of material breach of this agreement, the CLIENT will be notified and given 30 days to cure the breach. In case this does not happen, this agreement is terminated without any remedies for the CLIENT and without any further obligations to PROVIDER.
12. No solicitation. CLIENT agrees not to approach PROVIDER's employees with proposals to hire them as his own employees or contractors. If CLIENT were to hire any of Provider's employees, CLIENT agrees to pay PROVIDER for each employee thus hired customary fees charged by top employment agencies plus 60% surcharge.
13. 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, 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 CONTENT AND ANY CONSEQUENCES OF THIS USAGE.
14. Indemnification. CLIENT shall indemnify, defend by counsel reasonably accepted by PROVIDER, protect and hold PROVIDER harmless from and against any and all claims, liabilities, losses, costs, damages, expenses, including consultants' and attorneys' fees and court costs, demands, causes of action, or judgments directly or indirectly arising out of or related to the web design and other services provided by PROVIDER to the CLIENT.
15. 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.
16. 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.
17. Waiver. Performance of any obligation required of a party hereunder 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.
18. Severability. If any provision of this Agreement shall be unlawful, void, or for any reason, unenforceable, it shall be deemed severable 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.
19. Governing Law. This Agreement was entered into in the State of California and its validity, construction, interpretation and legal effect shall be governed by the laws and judicial decisions of the State of California applicable to contracts entered into and performed entirely within the State of California.
20. 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.
21. 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.
22. 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.
23. 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-à-vis one another.
24. 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.
25. 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, performance of the Services shall be deferred to a date and time mutually agreeable by the parties.
26. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
27. 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.
28. 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.
29. Recitals. The recitals above set forth are incorporated herein by reference.
30. Arbitration. Any dispute arising under this agreement shall be resolved by binding arbitration in the city of San Diego, California and under the rules of the American Arbitration Association.