USER AGREEMENT
This User Agreement ("Agreement")
is an agreement between Anchored Host ("Company") and the party
set forth in the related order form (¡§Customer¡¨ or ¡§You¡¨)
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.
Acceptable Use Policy.
Under this Agreement, Customer shall comply with Company's then
current Acceptable Use Policy ("AUP"), as amended, modified or
updated from time to time by Company, which currently can be
viewed under the Legal Details section of this web site, and
which is incorporated in this Agreement by reference. Customer
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. Company does not intend to
systematically monitor the content that is submitted to, stored
on or distributed or disseminated by Customer via the Service
(the "Customer Content"). Customer Content includes content of
Customer's customers and/or users of Customer's website.
Accordingly, under this Agreement, You will be responsible for
Your customers content and activities on Your 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 Customer Content,
disconnection or discontinuance of any and all Services, or
termination of this Agreement in the event of notice of possible
violation by Customer of the AUP. In the event Company takes
corrective action due to a violation of the AUP, Company shall
not refund to Customer any fees paid in advance of such
corrective action. Customer hereby agrees that Company shall
have no liability to Customer or any of Customer's customers due
to any corrective action that Company may take (including,
without limitation, disconnection of Services).
Term; Termination; Cancellation
Policy.
a.
The initial term of this Agreement shall be as set forth in the
Order Form (the "Initial Term"). 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. The Initial Term and all successive renewal periods
shall be referred to, collectively, as the "Term".
This Agreement may be terminated
by either party by giving the other party thirty (30) days prior
written notice subject to a minimum $50.00 charge as an early
cancellation fee payable by Customer, by Company in the event of
nonpayment by Customer, by Company, at any time, without notice,
if, in Company's sole and absolute discretion and/or judgment,
Customer is in violation of any term or condition of the this
Agreement and related agreements, AUP, or Customer's use of the
Services disrupts or, in Company's sole and absolute discretion
and/or judgment, could disrupt, Company's business operations
and/or by Company as provided herein.
If You cancel this Agreement,
upon proper notice to Company, prior to the end of the Initial
Term or any Term thereafter, You shall be obligated to pay all
fees and charges accrued prior to the effectiveness of such
cancellation;
Company will NOT refund to You all pre-paid fees for hosting services
resulting from cancellation including monthly, bi-annual and
annual subscription.
You 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 thirty (30) days after receipt by Company, unless a
later date is specified in such request.
Company 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 Customer as
much prior notice as reasonably practicable; or immediately, if
Company determines that Customer¡¦s use of the Services, the Web
site or the Customer Content violates any Company term or
condition, including this AUP, User Agreement, Spamming Policy,
or Domain Policy. If Company cancels this Agreement prior to the
end of the Term for Your breach of this Agreement and related
agreements, including the AUP, User Agreement, Spamming Policy,
or Domain Policy or Customer's use of the Services disrupts our
network, Company shall not refund to You any fees paid in
advance of such cancellation and You shall be obligated to pay
all fees and charges accrued prior to the effectiveness of such
cancellation; further, You shall be obligated to pay 100% of all
charges for all Services for each month remaining in the Term
and Company shall have the right to charge You an administrative
fee of a minimum of $50.00.
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.
Customer's Responsibilities.
Customer is solely responsible
for the quality, performance and all other aspects of the
Customer Content and the goods or services provided through the
Customer Web site.
Customer will cooperate fully
with Company in connection with Company¡¦s performance of the
Services. Customer must provide any equipment or software that
may be necessary for Customer to use the Services. Delays in
Customer¡¦s performance of its obligations under this Agreement
will extend the time for Company¡¦s performance of its
obligations that depend on Customer¡¦s performance on a day for
day basis. Customer will notify Company of any change in
Customer¡¦s mailing address, telephone, electronic mail or other
contact information.
Customer assumes full
responsibility for providing end users with any required
disclosure or explanation of the various features of the
Customer Web site and any goods or services described therein,
as well as any rules, terms or conditions of use.
Because the Services permit
Customer to electronically transmit or upload content directly
to the Customer Web site, Customer shall be fully responsible
for uploading all content to the Customer Web site and
supplementing, modifying and updating the Customer Web site,
including all back-ups. Customer is also responsible for
ensuring that the Customer Content and all aspects of the
Customer Web site are compatible with the hardware and software
used by Company to provide the Services, as the same may be
changed by Company from time to time. Specifications for the
hardware and software used by Company to provide the Services
will be available on Company¡¦s Web site. Customer shall
periodically access Company¡¦s Web site to determine if Company
has made any changes thereto. Company shall not be responsible
for any damages to the Customer Content, the Customer Web site
or other damages or any malfunctions or service interruptions
caused by any failure of the Customer Content or any aspect of
the Customer Web site to be compatible with the hardware and
software used by Company to provide the Services.
Customer is solely responsible
for making back-up copies of the Customer Web site and Customer
Content.
Customer's Representations and
Warranties.
Customer hereby represents and
warrants to Company, and agrees that during the Initial Term and
any Term thereafter Customer will ensure that:
Customer is the owner or valid
licensee of the Customer Content and each element thereof, and
Customer has secured all necessary licenses, consents,
permissions, waivers and releases for the use of the Customer
Content and each element thereof, including without limitation,
all trademarks, logos, names and likenesses contained therein,
without any obligation by Company to pay any fees, residuals,
guild payments or other compensation of any kind to any Person;
Customer¡¦s use, publication and
display of the Customer 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;
Customer will comply with all
applicable laws, rules and regulations regarding the Customer
Content and the Customer Web site and will use the Customer Web
site only for lawful purposes; and
Customer has used its best
efforts to ensure that the Customer Content is and will at all
times remain free of all computer viruses, worms, Trojan horses
and other malicious code.
Customer shall be solely
responsible for the development, operation and maintenance of
Customer's web site, online store and electronic commerce
activities, for all products and services offered by Customer or
appearing online and for all contents and materials appearing
online or on Customer's products, including, without limitation
the accuracy and appropriateness of the Customer Content and
content and material appearing in its store or on its products,
ensuring that the Customer Content and content and materials
appearing in its store or on its products do not violate or
infringe upon the rights of any person, and ensuring that the
Customer Content and the content and materials appearing in its
store or on its products are not defamatory or otherwise
illegal. Customer shall be solely responsible for accepting,
processing and filling customer orders and for handling customer
inquiries or complaints. Customer shall be solely responsible
for the payment or satisfaction of any and all taxes associated
with its web site and online store.
Customer grants Company the right
to reproduce, copy, use and distribute all and any portion of
the Customer Content to the extent needed to provide and operate
the Services.
In addition to transactions
entered into by Customer on Your behalf, Customer also agrees to
be bound by the terms of this Agreement for transactions entered
into on Customer¡¦s behalf by anyone acting as Customer¡¦s agent,
and transactions entered into by anyone who uses Customer¡¦s
account, whether or not the transactions were on Customer¡¦s
behalf.
License to Company .
Customer hereby
grants to Company 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: 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
Customer Content; and make archival or back-up copies of the
Customer Content and the Customer Web site.
Except for the rights expressly
granted above, Company is not acquiring any right, title or
interest in or to the Customer Content, all of which shall
remain solely with Customer.
Company, in its sole discretion,
reserves the right (i) 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, Customer Content and/or web site(s)), and/or (ii) to
comply with any applicable laws, government rules, or
requirements, requests of law enforcement, or to avoid any
liability, civil or criminal. Customer further agrees that
Company shall not be liable to Customer for any loss or damages
that may result from such conduct.
Billing and Payment.
Customer will pay to Company the
service fees for the Services in the manner set forth in the
Order Form.
Company may increase the Service
Fees (i) in the manner permitted in the service description and
(ii) at any time on or after expiration of the Initial Term by
providing ten (10) days prior written notice thereof to
Customer.
The 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 Company¡¦s
net income). All such taxes will be added to Company¡¦s invoices
for the fees as separate charges to be paid by Customer. All
fees are fully earned when due and non-refundable when paid.
Unless otherwise specified, all
fees and related charges shall be due and payable within thirty
(30) days after the date of the invoice. If any invoice is not
paid within seven (7) days after the date of the invoice,
Company may charge Customer a late fee of $15.00 for; in
addition any amounts payable to Company 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.
If Company collects any payment
due at law or through an attorney at law or under advice
therefrom or through a collection agency, or if Company prevails
in any action to which the Customer and Company are parties,
Customer will pay all costs of collection, arbitration and
litigation, including, without limitation, all court costs and
Company¡¦s reasonable attorneys¡¦ fees.
If any check is returned for
insufficient funds Company may impose a minimum processing
charge of $25.00.
In the event that any amount due
to Company remains unpaid seven (7) days after such payment is
due, Company, in its sole discretion, may immediately terminate
this Agreement, and/or withhold or suspend Services.
There may be a minimum $50.00
charge to reinstate accounts that have been suspended or
terminated.
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Wire transfers will be assessed a
minimum $35.00 charge.
There may be a minimum $35.00
charge to for all credit card chargebacks.
Customer acknowledges and agrees
that Company may pre-charge Customer's fees for the Services to
its credit card supplied by Customer during registration for 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 SECTION 2.
Company as Reseller or
Licensor. Company 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"). Company shall
not be responsible for any changes in the Services that cause
the Non-Company Product to become obsolete, require modification
or alteration, or otherwise affect the performance of the
Services. Any malfunction or manufacturer's defects of
Non-Company Product either sold, licensed or provided by Company
to Customer or purchased directly by Customer used in connection
with the Services will not be deemed a breach of Company's
obligations under this Agreement. Any rights or remedies
Customer may have regarding the ownership, licensing,
performance or compliance of Non-Company Product are limited to
those rights extended to Customer by the manufacturer of such
Non-Company Product. Customer is entitled to use any Non-Company
Product supplied by Company only in connection with Customer's
permitted use of the Services. Customer shall use its best
efforts to protect and keep confidential all intellectual
property provided by Company to Customer through any Non-Company
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. Customer shall not
resell, transfer, export or re-export any Non-Company Product,
or any technical data derived therefrom, in violation of any
applicable United States or foreign law.
Internet Protocol (IP) Address
Ownership. If Company assigns Customer an Internet Protocol
(¡§IP¡¨) address for Customer's use, the right to use that IP
address shall belong only to Company, and Customer shall have no
right to use that IP address except as permitted by Company in
its sole and absolute discretion in connection with the
Services, during the term of this Agreement. Company shall
maintain and control ownership of all Internet Protocol numbers
and addresses that may be assigned to Customer by Company, and
Company reserves the right to change or remove any and all such
Internet Protocol numbers and addresses, in its sole and
absolute discretion.
Caching. Customer
expressly grants to Company a license to cache the entirety of
the Customer Content and Customer's web site, including content
supplied by third parties, hosted by Company under this
Agreement and agrees that such caching is not an infringement of
any of Customer's intellectual property rights or any third
party's intellectual property rights.
CPU Usage. Customer agrees
that Customer shall not use excessive amounts of CPU processing
on any of Company's servers. Any violation of this policy may
result in corrective action by Company, including assessment of
additional charges, disconnection or discontinuance of any and
all Services, or termination of this Agreement, which actions
may be taken in Company's sole and absolute discretion. If
Company takes any corrective action under this section, Customer
shall not be entitled to a refund of any fees paid in advance
prior to such action.
Bandwidth and Disk Usage.
Company shall provide Customer 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. Customer agrees that such bandwidth and
disk usage shall not exceed the amounts set by Company for the
Services (the "Agreed Usage"). These allotments are optimized
and dedicated towards serving the Content and Customer's
electronic mail services related solely to Customer's web
hosting account(s) with Company. Customer shall not use any
bandwidth and/or disk usage for materials other than the
Customer¡¦s Web site, Customer Content and/or Customer's
electronic mail services. For example, Customer 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. Company will monitor Customer's bandwidth
and disk usage. Company, in its sole discretion, shall have the
right to take any corrective action if Customer'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 Customer¡¦s Web site,
Customer Content, Customer's electronic mail services and/or
other materials or termination of this Agreement, which actions
may be taken in Company's sole and absolute discretion. If
Company takes any such corrective action under this section,
Customer shall not be entitled to a refund or credit of any fees
paid prior to such action. Customer will comply with all
applicable laws, rules and regulations regarding Customer¡¦s Web
site, Customer Content and/or Customer's electronic mail
services and will each, including bandwidth, disk space and
other resources only for lawful purposes. Customer 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 United States in violation of applicable
export control laws; the Services to forge or misrepresent
message headers, whether in whole or in part, to mask the
originator of the message. If Company learns or discovers that
Customer is violating any law related to Customer¡¦s Web site,
Customer Content and/or Customer's electronic mail services, use
of bandwidth, disk usage or Agreed Usage, Company maybe
obligated to inform the necessary law enforcement and/or any
related agency(ies) of such conduct and may provide such
agency(ies) with information related to Customer, Customer¡¦s Web
site, Customer Content and/or Customer's electronic mail.
Parked Domain Services.
In addition to the applicable terms and conditions contained
herein:
If Customer signs up to register
and park a domain name with Company, Customer agrees to pay
Company the annual fee a set forth on our web site (the ¡§Parked
Page Services¡¨). Customer¡¦s annual billing date will be
determined based on the month Customer establishes the Parked
Page Services with Company. Payments are non-refundable. If for
any reason Company is unable to charge Customer¡¦s payment method
for the full amount owed Company for the service provided, or if
Company is charged a penalty for any fee it previously charged
to Your payment method, Customer agrees that Company may pursue
all available remedies in order to obtain payment. Customer
agrees that among the remedies Company may pursue in order to
effect payment, shall include but will not be limited to,
immediate cancellation without notice to Customer of Customer¡¦s
service. Company 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 Customer.
Customer agrees to be responsible
for notifying Company should Customer desire to terminate use of
any of the Parked Page Services, including, but not limited to,
those purchased. Notification of Customer¡¦s intent to terminate
must be provided to Company no earlier than thirty (30) days
prior to Customer¡¦s billing date but no later than ten (10) days
prior to the billing date. In the absence of notification from
Customer, Company will automatically continue the Parked Page
Services indefinitely and will charge Customer¡¦s payment method
that is on file with Company, at Company's then current rates.
It is Customer¡¦s responsibility to keep their payment method
information current, which includes the expiration date if using
a credit card. In the event Customer terminates the Parked Page
Services, moving their web site off of the Company hosting
servers is Customer¡¦s responsibility. Company will not transfer
or FTP such web site to another provider. Any change by
Customer of their name-server is not deemed cancellation of the
Parked Page Services.
Company will provide Customer
with the Parked Page Services as long as Customer abides by the
terms and conditions set forth herein and in each of Company's
policies and procedures.
By using any of the Parked Pages
Services, Customer agrees that Company may point the domain name
or DNS to one of Company's or Company's affiliates web pages,
and that they may place advertising on Customer¡¦s web page and
that Company specifically reserves this right. Customer 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 Customer¡¦s Parked Pages.
Customer agrees to indemnify and
hold harmless Company for any complications arising out of use
of the Parked Page Services, including, but not limited to,
actions Company chooses to take to remedy Customer¡¦s improper or
illegal use of a web site hosted by Company. Customer agrees it
is not be entitled to a refund of any fees paid to Company if,
for any reason, Company takes corrective action with respect to
any improper or illegal use of the Parked Page Services.
If a dispute arises as a result
of one or more of Customer¡¦s Parked Pages, Customer will
indemnify, defend and hold Company harmless for damages arising
out of such dispute. Customer also agrees that if Company is
notified that a complaint has been filed with a governmental,
administrative or judicial body, regarding a web site hosted by
Company, that Company, in its sole discretion, may take whatever
action Company deems necessary regarding further modification,
assignment of and/or control of the web site to comply with the
actions or requirements of the governmental, administrative or
judicial body until such time as the dispute is settled.
Property Rights.
Company hereby grants to Customer
a limited, non-exclusive, non-transferable, royalty-free
license, exercisable solely during the term of this Agreement,
to use Company technology, products and services solely for the
purpose of accessing and using the Services. Customer may not
use Company¡¦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 Company to Customer
any Company technology, and all rights, titles and interests in
and to any Company technology shall remain solely with Company.
Customer 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.
Company owns all right, title and
interest in and to the Services and Company'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.
Disclaimer of Warranty.
Customer agrees to
use all Services and any information obtained through or from
Company, at Customer's own risk. Customer acknowledges and
agrees that Company exercises no control over, and accepts no
responsibility for, the content of the information passing
through Company'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
COMPANY, 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 COMPANY 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.
COMPANY IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY,
FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM
CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS
VIA THE SERVICES PROVIDED BY COMPANY. NO ORAL ADVICE OR WRITTEN
INFORMATION GIVEN BY ANY COMPANY 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.
Limited Warranty.
Company represents and warrants
to Customer 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 Company generally to its other customers for the
same services; and (c) in compliance in all material respects
with the applicable Service Descriptions. Customer will be
deemed to have accepted such Services unless Customer notifies
Company, in writing, within thirty (30) days after performance
of any Services of any breach of the foregoing warranties.
Customer¡¦s sole and exclusive remedy, and Company¡¦s sole
obligation, for breach of the foregoing warranties shall be for
Company, at its option, to re-perform the defective Services at
no cost to Customer, or, in the event of interruptions to the
Services caused by a breach of the foregoing warranties, issue
Customer 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. Company may provision the
Services from any of its data centers and may from time to time
re-provision the Services from different data centers.
The foregoing warranties shall
not apply to performance issues or defects in the Services (a)
caused by factors outside of Company¡¦s reasonable control; (b)
that resulted from any actions or inactions of Customer or any
third parties; or (c) that resulted from Customer¡¦s equipment or
any third-party equipment not within the sole control of
Company. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY
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 COMPANY
HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE
FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER
HEREUNDER IS PROVIDED ¡§AS IS¡¨ WITHOUT ANY CONDITION OR WARRANTY
WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
Limitation of Liability.
IN NO EVENT WILL COMPANY¡¦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 COMPANY BY CUSTOMER
DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT
GIVING RISE TO SUCH LIABILITY.
COMPANY CANNOT GUARANTEE
CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF
DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE
INTERNET. COMPANY 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.
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.
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 Customer¡¦s indemnification obligations.
Notwithstanding anything to the
contrary in this Agreement, Company'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.
Customer understands,
acknowledges and agrees that if Company takes any corrective
action under this Agreement because of an action of Customer or
one if its customers or a reseller, that corrective action may
adversely affect other customers of Customer or other reseller
customers, and Customer agrees that Company shall have no
liability to Customer, any of its customers or any Reseller
Customer due to such corrective action by Company.
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.
Indemnification.
Customer agrees to
indemnify, defend and hold harmless Company 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
Customer's use of the Services, (ii) any violation by Customer
of the AUP, (iii) any breach of any representation, warranty or
covenant of Customer contained in this Agreement or (iv) any
acts or omissions of Customer. The terms of this section shall
survive any termination of this Agreement.
Miscellaneous.
Independent Contractor.
Company and Customer are independent contractors and nothing
contained in this Agreement places Company and Customer 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.
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 Arizona. 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
MARICOPA COUNTY, ARIZONA, 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.
Headings.
The headings herein are for
convenience only and are not part of this Agreement.
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 Customer or Company,
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 Customer and Company. 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 Company in its sole discretion, which modifications
will be effective upon posting to Company's web site.
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.
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. Company
may give written notice to Customer via electronic mail to the
Customer¡¦s electronic mail address as maintained in Company¡¦s
billing records.
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.
Assignment; Successors.
Customer may not assign or transfer this Agreement or any of its
rights or obligations hereunder, without the prior written
consent of Company. Any attempted assignment in violation of the
foregoing provision shall be null and void and of no force or
effect whatsoever. Company 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 Customer. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
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.
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,
Company¡¦s records of such execution shall be presumed accurate
unless proven otherwise.
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.
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,
Customer 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 Customer as if it were a party to this
Agreement.
Government Regulations.
Customer 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 Customer operates or does business.
Marketing.
Customer agrees that during the term of this Agreement Company
may publicly refer to Customer, orally and in writing, as a
customer of Company. Any other public reference to Customer by
Company requires the written consent of Customer.
Revised: March 2007
