USER AGREEMENT
This User Agreement is
an agreement between Wehostem.com (PROVIDER) and the party set forth in the
order form (CLIENT) incorporated herein by reference (together with any
subsequent order forms submitted by Customer, the "Order Form"), and
applies to the purchase of all services ordered by Customer on the Order Form
(collectively, the "Services").
PLEASE READ THIS AGREEMENT CAREFULLY.
BY SIGNING UP FOR THE SERVICES CREATES
A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE
APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT AND YOU ARE AGREEING TO
BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS
INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY'S USAGE POLICY.
YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
1.
Acceptable Use Policy. Under this Agreement,
CLIENT shall comply with PROVIDER’S current Acceptable Use Policy (“AUP”), as
amended, modified or updated by PROVIDER, which currently can be viewed under
the Legal Details section of this website, and which is incorporated in this
Agreement by reference. CLIENT hereby acknowledges that it has reviewed
the AUP and that the terms of the AUP are incorporated herein by
reference. In the event of any inconsistencies between this Agreement and
the AUP, the terms of the AUP shall govern. PROVIDER does not intend to
systematically monitor the content that is submitted to, stored on or
distributed by CLIENT’S content. CLIENT’S content includes content of CLIENT’S
customers and/or users of CLIENT’S website. Accordingly, under this Agreement,
CLIENT will be responsible for CLIENT’S customers content and activities on
CLIENT’S website. Notwithstanding anything to the contrary contained in this
Agreement, Company may immediately take corrective action, including removal of
all or a portion of the CLIENT content, disconnection or discontinuance of any
and all Services, or termination of this Agreement in the event of notice of
possible violation by CLIENT of the AUP. In the event PROVIDER takes corrective
action due to a violation of the AUP, PROVIDER shall not refund to CLIENT any
fees paid in advance of such corrective action. CLIENT hereby agrees that
PROVIDER shall have no liability to CLIENT or any of CLIENT’S customers due to any
corrective action that PROVIDER may take (including, without limitation,
disconnection of Services).
2.
TERM, TERMINATION, CANCELLATION POLICY
a.
The initial term of this Agreement shall be as set forth in the
Order Form. The Initial Term shall begin upon commencement of the Services to
Customer. After the Initial Term, this Agreement shall automatically
renew. ADDITIONALLY AFTER
THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE COMPANY TO AUTOMATICALLY
BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS
THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN
THIS SECTION.
b.
This Agreement may be terminated
i.
By either party giving the other party ten (10) days written
notice.
ii.
By PROVIDER in the event of nonpayment by CLIENT.
iii.
By PROVIDER, at any time, without notice, if, in PROVIDER’S sole
and absolute discretion and/or judgment, CLIENT is in violation of any term or
condition of the this Agreement and related agreements, AUP, or CLIENT’S use of
the Services disrupts or, in PROVIDER’S sole and absolute discretion and/or
judgment, could disrupt, PROVIDER’S business operations.
iv.
By PROVIDER as provided herein.
c.
If CLIENT cancels this Agreement, upon proper notice to
PROVIDER, prior to the end of the Initial Term or any Term thereafter,
.
CLIENT shall be obligated to pay all fees and charges accrued
prior to the effectiveness of such cancellation.
i.
PROVIDER may (but is not obligated to) refund to CLIENT all
pre-paid fees for basic hosting services for the full months remaining after
effectiveness of cancellation (i.e., no partial month fees shall be refunded),
less any setup fees and any discount applied for prepayment, provided that,
CLIENT is not in breach of any terms and conditions of this AUP, User
Agreement, Spamming Policy or Domain Policy.
ii.
CLIENT shall be obligated to pay one hundred percent (100%) of
all charges for all Services for each month remaining in the Term (other than
basic hosting fees as provided in (ii) above). Any cancellation request shall
be effective ten (10) days after receipt by PROVIDER, unless a later date is
specified in such request.
d.
PROVIDER may terminate this Agreement, without penalty,
.
If the Services are prohibited by applicable law, or become
impractical or unfeasible for any technical, legal or regulatory reason, by
giving CLIENT as much prior notice as reasonably practicable.
i.
Immediately, if PROVIDER determines that CLIENT’S use of the
Services, the Website or the CLIENT’S content violates any of PROVIDER’S term
or condition, including this AUP, User Agreement, Spamming Policy, or Domain
Policy. If PROVIDER cancels this Agreement prior to the end of the Term for
CLIENT’S breach of this Agreement and related agreements, including the AUP,
User Agreement, Spamming Policy, or Domain Policy or CLIENT’S use of the
Services disrupts PROVIDER’S network, PROVIDER shall not refund to CLIENT any
fees paid in advance of such cancellation and CLIENT shall be obligated to pay
all fees and charges accrued prior to the effectiveness of such cancellation;
further, CLIENT shall be obligated to pay 100% of all charges for all Services
for each month remaining in the Term and PROVIDER shall have the right to
charge CLIENT an administrative fee of a minimum of $50.00.
e.
Upon termination of this Agreement for any cause or reason
whatsoever, neither party shall have any further rights or obligations under
this Agreement, except as expressly set forth herein. The provisions of
Sections 2(e), 3, 4, 10, 11, 13, 15 and 16 of this Agreement shall survive the
expiration or termination of this Agreement for any cause or reason whatsoever,
and, notwithstanding the expiration or termination of this Agreement, the
parties shall each remain liable to the other for any indebtedness or other
liability theretofore arising under this Agreement. Termination of this
Agreement and retention of pre-paid fees and charges shall be in addition to,
and not be in lieu of, any other legal or equitable rights or remedies to which
Company may be entitled.
3.
CLIENT’S RESPONSIBILITIES
a.
CLIENT is solely responsible for the quality, performance and
all other aspects of the CLIENT’S content and the goods or services provided
through the CLIENT’S Website.
b.
CLIENT will cooperate fully with PROVIDER in connection with
PROVIDER’S performance of the Services. CLIENT must provide any equipment or
software that may be necessary for CLIENT to use the Services. Delays in
CLIENT’S performance of its obligations under this Agreement will extend the
time for PROVIDER’S performance of its obligations that depend on CLIENT’S
performance. CLIENT will notify PROVIDER of any change in CLIENT’S mailing
address, telephone, electronic mail or other contact information.
c.
CLIENT assumes full responsibility for providing end users with
any required disclosure or explanation of the various features of the CLIENT’S
website and any goods or services described therein, as well as any rules,
terms or conditions of use.
d.
Because the services permit CLIENT to electronically transmit or
upload content directly to their customer’s website, CLIENT shall be fully
responsible for uploading all content to their Customer’s website and
supplementing, modifying and updating their Customer’s website, including all
back-ups. CLIENT is also responsible for ensuring that their customer’s content
and all aspects of their customer’s website are compatible with the hardware
and software used by PROVIDER to provide the Services, as the same may be
changed by PROVIDER from time to time. Specifications for the hardware and
software used by PROVIDER to provide the Services will be available on
PROVIDER’S website. CLIENT shall periodically access PROVIDER’S website to
determine if PROVIDER has made any changes thereto. PROVIDER shall not be
responsible for any damages to CLIENT’S content, the CLIENT’S website or other
damages or any malfunctions or service interruptions caused by any failure of
the CLIENT’S content or any aspect of the CLIENT’S website to be compatible
with the hardware and software used by PROVIDER to provide the Services.
e.
CLIENT is solely responsible for making back-up copies of the
CLIENT’S website and CLIENT’S content.
4.
CLIENT’S REPRESENTATIONS AND WARRANTIES.
a. CLIENT hereby represents and warrants to
PROVIDER, and agrees that during the Initial Term and any Term thereafter
Customer will ensure that:
I CLIENT is the owner or valid licensee of
the CLIENT’S content and each element thereof, and CLIENT has secured all
necessary licenses, consents, permissions, waivers and releases for the use of
the CLIENT content and each element thereof, including without limitation, all
trademarks, logos, names and likenesses contained therein, without any
obligation by PROVIDER to pay any fees, residuals, guild payments or other
compensation of any kind to any Person.
II CLIENT’S use, publication and display of
the CLIENT content will not infringe any copyright, patent, trademark, trade
secret or other proprietary or intellectual property right of any person, or
constitute a defamation, invasion of privacy or violation of any right of
publicity or any other right of any person, including, without limitation, any
contractual, statutory or common law right or any “moral right” or similar
right however denominated.
III CLIENT will comply with all applicable
laws, rules and regulations regarding the CLIENT content and the CLIENT’S
website and will use said website(s) only for lawful purposes.
IV CLIENT has used its best efforts to ensure
that the CLIENT’S content is and will at all times remain free of all computer
viruses, worms, Trojan horses and other malicious code.
b.
CLIENT shall be solely responsible for the development,
operation and maintenance of CLIENT’S website, online store and electronic
commerce activities, for all products and services offered by CLIENT, or
appearing online and for all contents and materials appearing online or on
CLIENT’S products, including, without limitation
I The accuracy and
appropriateness of the CLIENT content and content and material appearing in its
store or on its products.
II Ensuring that the CLIENT content and
content and materials appearing in its store or on its products do not violate
or infringe upon the rights of any person.
III Ensuring that the CLIENT content and the
content and materials appearing in its store or on its products are not
defamatory or otherwise illegal. CLIENT shall be solely responsible for
accepting, processing and filling customer orders and for handling customer
inquiries or complaints. CLIENT shall be solely responsible for the payment or
satisfaction of any and all taxes associated with its web site and online
store.
c.
CLIENT grants PROVIDER the right to reproduce, copy, use and
distribute all and any portion of the CLIENT content to the extent needed to
provide and operate the Services.
d.
In addition to transactions entered into by Customer on CLIENT’S
behalf, Customer also agrees to be bound by the terms of this Agreement for
transactions entered into on CLIENT’S behalf by anyone acting as CLIENT’S
agent, and transactions entered into by anyone who uses CLIENT’S account,
whether or not the transactions were on CLIENT’S behalf.
5.
LICENSE TO COMPANY
a. CLIENT hereby grants to PROVIDER a
non-exclusive, royalty-free, worldwide right and license during the Initial Term and any Term
thereafter to do the following to the extent necessary in the performance of
Services under the Order.
b.
Digitize, convert, install, upload, select, order, arrange,
compile, combine, synchronize, use, reproduce, store, process, retrieve,
transmit, distribute, publish, publicly display, publicly perform and hyperlink
the CLIENT content.
c.
Make archival or back-up copies of the CLIENT’S content and the
website(s).
d.
Except for the rights expressly granted above, PROVIDER is not
acquiring any right, title or interest in or to the CLIENT’S content, all of
which shall remain solely with CLIENT.
e.
PROVIDER, in its sole discretion, reserves the right to deny,
cancel, suspend, transfer or alter, modify, correct, amend, change, program, or
take any other corrective action to protect the integrity and stability of the
Services (including altering, modifying, correcting, amending, changing,
programming, or taking any other corrective action regarding any malicious
code, software or related abusive activity, CLIENT content, website(s), to comply with any applicable laws,
government rules, or requirements, requests of law enforcement, or to avoid any
liability, civil or criminal. CLIENT further agrees that PROVIDER shall
not be liable to CLIENT for any loss or damages that may result from such
conduct.
6.
BILLING AND PAYMENT
a. CLIENT
will pay to PROVIDER the service fees for the Services in the manner set forth
in the Order Form.
b.
PROVIDER may increase the Service Fees in the manner permitted
in the service description, at any time on or after expiration of the Initial
Term by providing ten (10) days prior written notice to CLIENT.
c.
Service Fees do not
include any applicable sales, use, revenue, excise or other taxes imposed by
any taxing authority with respect to the Services or any software provided
hereunder (excluding any tax on PROVIDER net income). All such taxes will be
added to PROVIDER’S invoices for the fees as separate charges to be paid by
CLIENT. All fees are fully earned when due and non-refundable when paid.
d.
Unless otherwise specified, all fees and related charges shall
be due and payable within fifteen (15) days after the date of the
invoice. If any invoice is not paid within five (5) days after the date
of the invoice, PROVIDER may charge CLIENT a late fee of $15.00. In addition
any amounts payable to PROVIDER not paid when due will bear interest at the
rate of one and one half percent (1.5%) per month or the maximum rate permitted
by applicable law, whichever is less.
e.
If PROVIDER collects any payment due at law or through an
attorney at law or under advice therefrom or through a collection agency, or if
PROVIDER prevails in any action to which the CLIENT and PROVIDER are parties,
CLIENT will pay all costs of collection, arbitration and litigation, including,
without limitation, all court costs and PROVIDER’S reasonable attorneys’ fees.
f.
In the event that any amount due to PROVIDER remains unpaid
seven (7) days after such payment is due, PROVIDER, in its sole discretion, may
immediately terminate this Agreement, and/or withhold or suspend Services.
g.
There may be a minimum $50.00 charge to reinstate accounts that
have been suspended or terminated.
7.
COMPANY AS RESELLER OR LICENSOR
a. PROVIDER is acting only as a reseller or
licensor of the hardware, software and equipment used in connection with the
products and/or Services that were or are manufactured or provided by a third
party ("Non-Company Product"). PROVIDER shall not be responsible for
any changes in the Services that cause the Non-PROVIDER Product to become
obsolete, require modification or alteration, or otherwise affect the performance
of the Services. Any malfunction or manufacturer's defects of Non-PROVIDER
product(s) either sold, licensed or provided by PROVIDER to CLIENT or purchased
directly by CLIENT used in connection with the Services will not be deemed a
breach of PROVIDER’S obligations under this Agreement. Any rights or remedies
CLIENT may have regarding the ownership, licensing, performance or compliance
of Non-PROVIDER Product are limited to those rights extended to Customer by the
manufacturer of such Non-PROVIDER product(s). CLIENT is entitled to use any
Non-PROVIDER product supplied by PROVIDER only in connection with CLIENT’S
permitted use of the Services. CLIENT shall use its best efforts to protect and
keep confidential all intellectual property provided by PROVIDER to CLIENT
through any Non-PROVIDER product and shall make no attempt to copy, alter,
reverse engineer, or tamper with such intellectual property or to use it other
than in connection with the Services. CLIENT shall not resell, transfer, export
or re-export any Non-PROVIDER product, or any technical data derived therefrom,
in violation of any applicable
8.
INTERNET PROTOCOL (IP) ADDRESS OWNERSHIP
a. If PROVIDER assigns CLIENT an Internet
Protocol (“IP”) address for CLIENT’S use, the right to use that IP address
shall belong only to PROVIDER, and CLIENT shall have no right to use that IP
address except as permitted by PROVIDER in its sole and absolute discretion in
connection with the Services, during the term of this Agreement. PROVIDER shall
maintain and control ownership of all Internet Protocol numbers and addresses
that may be assigned to CLIENT by PROVIDER, and PROVIDER reserves the right to
change or remove any and all such Internet Protocol numbers and addresses, in
its sole and absolute discretion.
9.
CACHING
a. Customer expressly
I Grants to PORVIDER a license to cache the
entirety of the CLIENT’S content and website, including content supplied by
third parties, hosted by provider under this agreement.
II Agrees that such caching is not an
infringement of any of CLIENT’S intellectual property rights or any third
party's intellectual property rights.
10. CPU
USAGE
a. CLIENT agrees that CLIENT shall not use
excessive amounts of CPU processing on any of PROVIDER’S servers. Any violation
of this policy may result in corrective action by PROVIDER, including
assessment of additional charges, disconnection or discontinuance of any and
all Services, or termination of this Agreement, which actions may be taken is
at PROVIDER’S sole and absolute discretion. If PROVIDER takes any corrective
action under this section, CLIENT shall not be entitled to a refund of any fees
paid in advance prior to such action.
11. BANDWIDTH
AND DISK USAGE
a. PROVIDER shall provide CLIENT with a large
volume of bandwidth, disk space and other resources, such as email and/or
file-transfer-protocol ("FTP") accounts. The services are
intended for normal use only. Any activity that results in excessive
usage inconsistent with normal usage patterns is strictly prohibited.
CLIENT agrees that such bandwidth and disk usage shall not exceed the amounts
set by PROVIDER for the Services. These allotments are optimized and dedicated
towards serving the content and CLIENT’S electronic mail services related
solely to CLIENT’S web hosting account(s) with PROVIDER. CLIENT shall not use
any bandwidth, disk usage for materials other than the CLIENT’S website,
CLIENT’S content, and CLIENT’S electronic mail services. For example,
CLIENT may not use bandwidth or disk usage as offsite storage area for
electronic files or as a provisioning service for third party electronic mail
or FTP hosts. PROVIDER will monitor CLIENT’S bandwidth and disk usage.
PROVIDER, in its sole discretion, shall have the right to take any corrective
action if CLIENT’S bandwidth or disk usage exceeds the Agreed Usage or other
improper storage or usage. Such corrective action may include the
assessment of additional charges, disconnection or discontinuance of any and
all Services, removal or deletion of CLIENT’S website, CLIENT’S Content,
CLIENT’S electronic mail services or other materials or termination of this
Agreement, which actions may be taken is at PROVIDER’S sole and absolute
discretion. If PROVIDER takes any such corrective action under this section,
CLIENT shall not be entitled to a refund or credit of any fees paid prior to
such action.
b. CLIENT will comply with all applicable
laws, rules and regulations regarding CLIENT’S website, CLIENT’S content, and
CLIENT’S electronic mail services and will use each, including bandwidth, disk
space and other resources only for lawful purposes.
c.
CLIENT may not utilize the services to copy material from third
parties (including text, graphics, music, videos or other copyrightable
material) without proper authorization. The services to misappropriate or
infringe the patents, copyrights, trademarks or other intellectual property
rights of any third party; the services to traffic in illegal drugs, illegal
gambling, obscene materials or other any products or services that are
prohibited under applicable law. The services to export encryption software to
points outside the
d.
Services to forge or misrepresent message headers, whether in
whole or in part, to mask the originator of the message. If POVIDER
learns or discovers that CLIENT is violating any law related to CLIENT’S
website, CLIENT content or CLIENT’S electronic mail services. Use of bandwidth,
disk usage or agreed Usage, PROVIDER maybe obligated to inform the necessary
law enforcement or any related agency(ies) of such
conduct and may provide such agency(ies) with information related to CLIENT,
CLIENT’S website, CLIENT content or CLIENT’S electronic mail.
12. PARKED
DOMAIN SERVICES
a. In addition to
the applicable terms and conditions contained herein:
I If CLIENT signs up to
register and park a domain name with PROVIDER, CLIENT agrees to pay PROVIDER
the annual fee as set forth on our web site. CLIENT’S annual billing date
will be determined based on the month CLIENT establishes service.
Payments are non-refundable. If for any reason PROVIDER is unable to charge
CLIENT’S payment method for the full amount owed for the service provided, or
if Company is charged a penalty for any fee it previously charged to CLIENT’S
payment method, CLIENT agrees that PROVIDER may pursue all available remedies
in order to obtain payment. CLIENT agrees that among the remedies PROVIDER may
pursue in order to effect payment, shall include but will not be limited to,
immediate cancellation without notice to CLIENT of service. PROVIDER reserves
the right to charge a reasonable service fee for administrative tasks outside
the scope of its regular services. These include, but are not limited to,
customer service issues that cannot be handled over email but require personal
service, and disputes that require legal services. These charges will be billed
to the payment method we have on file for CLIENT.
II CLIENT agrees to be responsible for
notifying PROVIDER should CLIENT desires to terminate use of any of the
services, including, but not limited to, those purchased. Notification of
CLIENT’S intent to terminate must be provided to Company no earlier than
fifteen (15) days prior to CLIENT’S billing date. In the absence of
notification from CLIENT, PROVIDER will automatically continue the Services
indefinitely and will charge CLIENT’S payment method that is on file with
PROVIDER, at PROVIDER’S then current rates. It is CLIENT’S responsibility to
keep their payment method information current, which includes the expiration
date if using a credit card. In the event Customer terminates their services,
moving their website off of the PROVIDER’S hosting servers is CLIENT’S
responsibility. PROVIDER will not transfer or FTP such website to another
provider. Any change by CLIENT of their name-server is not deemed
cancellation of the services.
III PROVIDER will provide CLIENT with the
services as long as CLIENT abides by the terms and conditions set forth herein
and in each of PROVIDER’S policies and procedures.
IV By using any of the services, CLIENT agrees
that PROVIDER may point the domain name or DNS to one of PROVIDER’S or
PROVIDER’S affiliates web pages, and that they may place advertising on
CLIENT’S web page and that PROVIDER specifically reserves this right.
CLIENT shall have no right to any compensation and shall not be entitled and
shall have no right to receive any funds related to the monetization of
CLIENT’S Parked Pages.
V CLIENT agrees to indemnify and hold
harmless PROVIDER for any complications arising out of use of the services,
including, but not limited to, actions PROVIDER chooses to take to remedy
CLIENT’S improper or illegal use of a website hosted by PROVIDER. CLIENT agrees
it is not be entitled to a refund of any fees paid to PROVIDER if, for any
reason, PROVIDER takes corrective action with respect to any improper or
illegal use of the services.
VI If a dispute arises as a result of one or
more of CLIENT’S Parked Pages, CLIENT will indemnify, defend and hold PROVIDER
harmless for damages arising out of such dispute. CLIENT also agrees that if
PROVIDER is notified that a complaint has been filed with a governmental,
administrative or judicial body, regarding a website hosted by PROVIDER it in
its sole discretion, may take whatever action deems necessary regarding further
modification, assignment of and control of the website to comply with the
actions or requirements of the governmental, administrative or judicial body
until such time as the dispute is settled.
13.
PROPERTY RIGHTS
a. PROVIDER hereby grants to CLIENT a limited,
non-exclusive, non-transferable, royalty-free license, exercisable solely
during the term of this Agreement, to use PROVIDER’S technology, products and
services solely for the purpose of accessing and using the services. CLIENT may
not use PROVIDER’S technology for any purpose other than accessing and using
the services. Except for the rights expressly granted above, this Agreement
does not transfer from PROVIDER to CLIENT any PROVIDER technology, rights,
titles or interests. PROVIDER’S technology shall remain solely with PROVIDER.
CLIENT shall not, directly or indirectly, reverse engineer, decompile,
disassemble or otherwise attempt to derive source code or other trade secrets
from any of the Company.
b.
PROVIDER owns all right, title and interest in and to the
services and PROVIDER’S trade names, trademarks, service marks, inventions,
copyrights, trade secrets, patents, know-how and other intellectual property
rights relating to the design, function, marketing, promotion, sale and
provision of the services and the related hardware, software and systems
("Marks"). Noting in this agreement constitutes a license to Customer
to use or resell the Marks.
14.
DISCLAIMER OF WARRANTY
a. CLIENT agrees to use all services and any
information obtained through or from PROVIDER, at CLIENT’S own risk. CLIENT
acknowledges and agrees that PROVIDER exercises no control over, and accepts no
responsibility for, the content of the information passing through PROVIDER’S
host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE
PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF PROVIDER’S, ITS PARENT,
SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES,
OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS,
THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN
"COMPANY PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED
OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY
EQUIPMENT COMPANY PROVIDES. NO PROVIDER PERSON MAKES ANY WARRANTIES THAT THE
SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY
WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES
OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR
MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. PROVIDER IS NOT LIABLE,
AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED
EITHER TO OR FROM CLIENT OR STORED BY CLIENT OR ANY OF CLIENT’S CUSTOMERS VIA
THE SERVICES PROVIDED BY PROVIDER. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN
BY ANY PROVIDER PERSON, WILL CREATE A WARRANTY; NOR
MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of
this section shall survive any termination of this Agreement.
15.
Limited Warranty.
a. PROVIDER represents and warrants to CLIENT
that the services will be performed (a) in a manner consistent with industry
standards reasonably applicable to the performance thereof; (b) at least at the
same level of service as provided by PROVIDER generally to its other customers
for the same services; and (c) in compliance in all material respects with the
applicable service descriptions. CLIENT will be deemed to have accepted such
services unless CLIENT notifies PROVIDER, in writing, within fifteen (15) days
after performance of any services of any breach of the foregoing warranties.
CLIENT’S sole and exclusive remedy, and PROVIDER’S sole obligation, for breach
of the foregoing warranties shall be for PROVIDER, at its option, to re-perform
the defective services at no cost to CLIENT, or, in the event of interruptions
to the services caused by a breach of the foregoing warranties, issue CLIENT a
credit in an amount equal to the current monthly service fees pro rated by the
number of hours in which the services have been interrupted. PROVIDER may
provision the services from any of its data centers and may from time to time
re-provision the services from different data centers.
b. The foregoing warranties shall not apply to
performance issues or defects in the services (a) caused by factors outside of
PROVIDER’S reasonable control; (b) that resulted from any actions or inactions
of CLIENT or any third parties; or (c) that resulted from CLIENT’S equipment or
any third-party equipment not within the sole control of PROVIDER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION,
PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY
RIGHTS, AND PROVIDER HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE
FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CLIENT HEREUNDER IS PROVIDED
“AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. PROVIDER DOES NOT WARRANT
THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
16.
Limitation of Liability.
a. IN NO EVENT WILL PROVIDER’S LIABILITY IN CONNECTION WITH THE
SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY
FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE,
EXCEED THE AGGREGATE SERVICE FEES PAID TO PROVIDER BY CLIENT DURING THE
12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
b.
PROVIDER CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT
ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR
TRANSMITTED VIA THE INTERNET. PROVIDER WILL NOT BE LIABLE FOR ANY UNAUTHORIZED
ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR
INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED
OR STORED ON ITS SYSTEM.
c.
EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE
LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS
OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE
GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE,
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE,
WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER,
ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY
ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF
WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
d.
The limitations contained in this section apply to all causes of
action in the aggregate, whether based in contract, tort or any other legal
theory (including strict liability), other than claims based on fraud or
willful misconduct. The limitations contained in section 15(c) shall not apply
to CLIENT’S indemnification obligations.
e.
Notwithstanding anything to the contrary in this agreement,
PROVIDER’S maximum liability under this Agreement for all damages, losses,
costs and causes of actions from any and all claims (whether in contract, tort,
including negligence, quasi-contract, statutory or otherwise) shall not exceed
the actual dollar amount paid by Customer for the services which gave rise to
such damages, losses and causes of actions during the 12-month period prior to
the date the damage or loss occurred or the cause of action arose.
f.
CLIENT understands, acknowledges and agrees that if PROVIDER
takes any corrective action under this agreement because of an action of CLIENT
or one if its customers or a reseller, that corrective action may adversely
affect other customers of CLIENT or other reseller customers, and CLIENT agrees
that PROVIDER shall have no liability to CLIENT, any of its customers or any
Reseller Customer due to such corrective action by PROVIDER.
g.
This limitation of liability reflects an informed, voluntary
allocation between the parties of the risks (known and unknown) that may exist
in connection with this agreement. The terms of this section shall survive any
termination of this agreement.
17.
INDEMNIFICATION
a. CLIENT agrees to indemnify, defend and hold
harmless PROVIDER and its parent, subsidiary and affiliated companies, and each
of their respective officers, directors, employees, shareholders, attorneys and
agents (each an "indemnified party" and, collectively,
"indemnified parties") from and against any and all claims, damages,
losses, liabilities, suits, actions, demands, proceedings (whether legal or
administrative), and expenses (including, but not limited to, reasonable
attorney's fees) threatened, asserted, or filed by a third party against any of
the indemnified parties arising out of or relating to CLIENT’S use of the
Services, (ii) any violation by CLIENT of the AUP, (iii) any breach of any
representation, warranty or covenant of CLIENT contained in this Agreement or
(iv) any acts or omissions of CLIENT. The terms of this section shall survive
any termination of this agreement.
18. MISCELLANEOUS
a. Independent Contractor PROVIDER and CLIENT are
independent contractors and nothing contained in this agreement places PROVIDER
and CLIENT in the relationship of principal and agent, master and servant,
partners or joint venturers. Neither party has, expressly or
by implication, or may represent itself as having, any authority to make
contracts or enter into any agreements in the name of the other party, or to
obligate or bind the other party in any manner whatsoever.
b.
Governing Law; Jurisdiction. Any controversy or
claim arising out of or relating to this agreement, the formation of this
agreement or the breach of this agreement, including any claim based upon
arising from an alleged tort, shall be governed by the substantive laws of the
State of Illinois. The United Nations Convention on Contracts for the
International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS
AGREEMENT MUST BE BROUGHT IN A STATE OR FEDERAL COURT LOCATED IN MONROE COUNTY,
ILLINOIS, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM)
IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
c.
Headings. The headings herein
are for convenience only and are not part of this agreement.
d.
Entire Agreement; Amendments. This agreement,
including documents incorporated herein by reference, supersedes all prior
discussions, negotiations and agreements between the parties with respect to
the subject matter hereof, and this agreement constitutes the sole and entire
agreement between the parties with respect to the matters covered hereby. In
case of a conflict between this agreement and any purchase order, service
order, work order, confirmation, correspondence or other communication of
CLIENT or PROVIDER, the terms and conditions of this agreement shall control.
No additional terms or conditions relating to the subject matter of this
agreement shall be effective unless approved in writing by any authorized
representative of CLIENT and PROVIDER. This agreement may not be modified or
amended except by another agreement in writing executed by the parties hereto;
provided, however, that these Terms of Service may be modified from time to
time by PROVIDER in its sole discretion, which modifications will be effective
upon posting to Company's web site.
e.
Severability. All rights and
restrictions contained in this agreement may be exercised and shall be
applicable and binding only to the extent that they do not violate any
applicable laws and are intended to be limited to the extent necessary so that
they will not render this agreement illegal, invalid or unenforceable. If any
provision or portion of any provision of this agreement shall be held to be
illegal, invalid or unenforceable by a court of competent jurisdiction, it is
the intention of the parties that the remaining provisions or portions thereof
shall constitute their agreement with respect to the subject matter hereof, and
all such remaining provisions or portions thereof shall remain in full force
and effect.
f.
Notices. All notices and
demands required or contemplated hereunder by one party to the other shall be
in writing and shall be deemed to have been duly made and given upon date of
delivery if delivered in person or by an overnight delivery or postal service,
upon receipt if delivered by facsimile the receipt of which is confirmed by the
recipient, or upon the expiration of five days after the date of posting if
mailed by certified mail, postage prepaid, to the addresses or facsimile
numbers set forth below the parties’ signatures. Either party may change its
address or facsimile number for purposes of this agreement by notice in writing
to the other party as provided herein. PROVIDER may give written notice to
CLIENT via electronic mail to the CLIENT’S electronic mail address as
maintained in PROVIDER’S billing records.
g.
Waiver. No failure or delay
by any party hereto to exercise any right or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any right or
remedy by any party preclude any other or further exercise thereof or the
exercise of any other right or remedy. No express waiver or assent by any party
hereto to any breach of or default in any term or condition of this agreement shall
constitute a waiver of or an assent to any succeeding breach of or default in
the same or any other term or condition hereof.
h.
Assignment; Successors. CLIENT may not assign
or transfer this agreement or any of its rights or obligations hereunder, without
the prior written consent of PROVIDER. Any attempted assignment in violation of
the foregoing provision shall be null and void and of no force or effect
whatsoever. PROVIDER may assign its rights and obligations under this
agreement, and may engage subcontractors or agents in performing its duties and
exercising its rights hereunder, without the consent of CLIENT. This agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
I. Limitation of Actions. No action, regardless
of form, arising by reason of or in connection with this agreement may be
brought by either party more than two years after the cause of action has
arisen.
j.
Counterparts. If this agreement is
signed manually, it may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together shall constitute
one and the same instrument. If this agreement is signed electronically,
PROVIDER’S records of such execution shall be presumed accurate unless proven
otherwise.
k.
Force Majeure. Neither party is
liable for any default or delay in the performance of any of its obligations
under this agreement (other than failure to make payments when due) if such
default or delay is caused, directly or indirectly, by forces beyond such
party’s reasonable control, including, without limitation, fire, flood, acts of
God, labor disputes, accidents, acts of war or terrorism, interruptions of
transportation or communications, supply shortages or the failure of any third
party to perform any commitment relative to the production or delivery of any
equipment or material required for such party to perform its obligations
hereunder.
l.
No Third-Party Beneficiaries. Except as otherwise
expressly provided in this agreement, nothing in this agreement is intended,
nor shall anything herein be construed to confer any rights, legal or
equitable, in any person other than the parties hereto and their respective
successors and permitted assigns. Notwithstanding the foregoing, CLIENT
acknowledges and agrees that Microsoft, and any supplier of third-party
supplier that is identified as a third-party beneficiary in the service
description, is an intended third-party beneficiary of the provisions set forth
in this agreement as they relate specifically to its products or services and
shall have the right to enforce directly the terms and conditions of this
agreement with respect to its products or services against CLIENT as if it were
a party to this agreement.
m.
Government Regulations. CLIENT may not
export, re-export, transfer or make available, whether directly or indirectly,
any regulated item or information to anyone outside the United States in
connection with this agreement without first complying with all export control
laws and regulations which may be imposed by the United States government and
any country or organization of nations within whose jurisdiction CLIENT
operates or does business.
n.
Marketing. Customer agrees that
during the term of this agreement PROVIDER may publicly refer to CLIENT, orally
and in writing, as a customer of PROVIDER. Any other public reference to CLIENT
by PROVIDER requires the written consent of CLIENT.
Revised: January 2007