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Violation of Bizarre-Host Internet's Terms
Of Service will be considered immediate grounds for termination of services
and no refunds will be given.
Dedicated Terms and
Conditions
Last updated
February 15 2006 01:59:11 (GMT +1)
1. TERM AND TERMINATION
1.1. Effective Date and Term
The initial term will begin on the Effective Date. The period between the
Effective Date, and the date of Termination or Expiration, if any, is the
“Term.”
1.2. Termination
Unless otherwise specified in a Service Attachment, following the expiration
of a service’s respective term, the term will automatically renew for the
length of the initial term (“Renewal Term”) unless cancelled in writing by
either party at least 30 days before the expiration of the Term or Renewal
Term.
We reserve the right to terminate this Agreement for a violation of our AUP.
One party may also terminate this Agreement upon the occurrence of a
material breach, which has not been cured by the other party within 30 days
of their receipt of written notice of the breach. For the purposes of
defining a material breach, materiality shall be determined from the
perspective of a reasonable business person with significant experience in
conducting business on the Internet. Notices of material breach must contain
sufficient detail for the party against whom the assertion of material
breach is directed to identify the breach and attempt to take corrective
action.
1.3. Guarantees
In certain cases, this Agreement, or particular Service Attachments may be
terminated by you within a defined period of time for any reason, or no
reason at all (“Guarantee”). Any time provisions of this Guarantee begin to
elapse on the Effective Date and are calculated on a calendar day basis. A
Guarantee only applies during the Term and does not apply to any Renewal
Terms. Non-recurring charges, as defined below, are never subject to the
Guarantee.
2. PAYMENT
2.1. Credit
During the Term and any Renewal Terms, we may periodically review your
credit history. This review may consist of a review of your payment history
with us, your broader credit history as reported elsewhere, and the amount
of fraud reported to us as originating with your account. By entering into
this Agreement, you consent to this review, and the disclosure of your
credit history, at our option, to recognized credit agencies.
2.2. Non-recurring Charges
You must pay any non-recurring charges, such as set up fees, as set out on
our web site. Payment of these non-recurring charges is a pre-requisite to
our obligation to provide services to you. All setup fees will be refunded,
have you not violated our Terms/AUP.
2.3. Recurring Charges
We reserve the right to bill you for fees charged to us by the payment processor, plus $200 special
processing fee, for disputes initiated by you, which are resolved in our
favour.
Unless otherwise set out on an individual Service Attachment, you agree to
pay all charges by the due date indicated on the invoice ("Due Date"). You
will be charged a $50 late fee if you fail to pay yoru renewal before the
"Due Date". You will be billed if we incur administrative and/or legal costs
associated with your late payment. Those
costs are calculated on an hourly basis, rounded up to the next full hour,
and are based on our current hourly rates. If your check is returned by your
bank, you will be billed any return check fee charged to us plus a $25
special handling & processing fee. If you do not pay all undisputed amounts
by the Due Date, we reserve the right to disconnect services and refuse to
continue to provide them to you.
2.4. Refunds
We have calculated our fees based on the Term. Accordingly, fees will only
be refunded as is expressly set out in this Agreement. Regardless of the
Guarantee, Effective Date, Term, or Renewal Term, should you be required to
make advance payment for certain services, or pay certain service fees,
those fees are not refundable should you choose to terminate the Agreement
for any reason. All setup fees will be refunded, have you not violated our
Terms/AUP.
2.5. Charges for Previously Provided Services and Storage of Equipment
We reserve the right to bill you retroactively for any services provided to
you for which we had not previously billed. We also reserve the right to
bill you retroactively for the costs of the removal and storage of equipment
you have placed in our facility if this Agreement is terminated and this
equipment is not removed by you. We also reserve the right to sell your
equipment to satisfy your outstanding storage charges.
2.6. Bill Disputes
You have up to 25 days (commencing five days after the date of our bill, or
on the date on which your credit card is charged) to initiate a dispute over
charges or to receive credits, if applicable. In order to dispute your bill,
you must send us a written itemized description of the specific items you
dispute in your bill. This itemization must be in sufficient detail for us
to identify the items in dispute. We must receive this information prior to
the date set out above. You agree to pay by the Due Date all charges not
specifically itemized in your written notice of dispute.
3. TAXES
You are responsible for all taxes assessed by local, state/provincial,
and/or federal authorities, regardless of your physical location. If these
taxes are assessed on us, based on the services provided to you, and we are
required to pay these taxes, they will be billed to you, in addition to a
reasonable special handling & processing fee. You are not responsible for
taxes based on our income.
4. USE OF SERVICES
You are bound by our AUP, and may only use services provided by us for the
purposes set out in the AUP. You are responsible for the activities of your
customers and third party users of services provided by us through you.
4.1. Material, Products, Information and Services.
4.1.1. Server Ready
You will provide us with material and data in a condition that is capable of
being deployed by us without any specialized effort on our part. In most
cases, that requires that the material and data be “Server Ready” and that
term is used throughout this Agreement to refer to this obligation.
4.1.2. Working Order
All Server Ready material provided to us must be previously validated and
tested. We have no responsibility, and will make no effort to validate
material and data placed on our servers and network. In the event that
material provided to us is not Server Ready, we may at any time reject and
delete this material. You may be offered the opportunity to make rejected
material Server Ready; however, we are under no obligation to allow you to
do so. Rejection of material for its failure to be Server Ready shall not
constitute a material breach of this Agreement by us.
4.1.3. Knowledge
Use of our services requires that you possess a certain level of knowledge.
At a minimum, you represent and warrant that you have sufficient knowledge
about administering, designing and operating a web site, and if engaged in
commercial activity, have significant experience in conducting business on
the Internet, and operating the hardware and software necessary to conduct
that business. Your failure to anticipate the complexity of operation of the
services purchased from us shall not be a basis for you to terminate this
Agreement.
Bizarre-Host offers a number of services designed to assist you in the use
and operation of your hardware and software. These services are provided at
an additional cost, and pursuant to various contract addenda. We may
terminate this agreement, at our sole and exclusive option, should your
requests for support exceed those typically experienced by us for similarly
situated customers.
5. MATERIAL, SERVICES AND INFORMATION
5.1. Connection Speed
Connection speed represents the maximum speed of a connection and does not
represent guarantees of available end-to-end bandwidth.
5.2. Hardware, equipment and software
You are responsible for, and must provide, all telephone, computer, hardware
and software equipment, and services necessary to access our network. It is
your obligation to determine if the equipment necessary to connect with our
network, and interact with it, is compatible. We are not responsible for
incompatibility of our equipment and network with yours. Such an
incompatibility is not grounds for termination of this Agreement by you, nor
shall it constitute a material breach by us.
5.3. Reasonable use
We have determined what constitutes reasonable use of our network for the
particular services and products you purchase from us. These standards are
based on typical customer use of our network, for similar services and
products. It is your obligation to monitor the use of your service and/or
server(s) –to ensure that there are not unusual spikes and peaks in your
bandwidth or disk usage. We understand that your business often succeeds
beyond your initial expectations, or that you may face, at times, unexpected
or unforeseen traffic levels. For that reason, we are pleased to offer you
unlimited bandwidth, up to the capacity of the server’s connection (while
metering and billing you based on the total traffic per month). However,
should your use of our network and/or products exceed the limits described
above, you will incur additional charges for that use. These charges will
apply regardless of whether you initiated the additional use, or it was
caused by a third party.
5.4. Reselling
You are allowed to resell to third-parties, the storage and transfer
services provided by us, under the following conditions:
- You must provide to third-parties an active link to our current AUP;
- Third-parties to whom you provide services, must specifically disclaim any
right to legal recourse against us for services provided by us, or our
suppliers, to you, or to the third-party through you;
- You take full and unlimited responsibility for the actions of the
third-parties, and agree to cooperate with us unconditionally should we be
made aware that the third-party is acting in a way that violates our AUP,
this Agreement, or the law;
- You are required to have at least one other non-resold account; and
- You are required to provide all support to the third-parties for any
resold products or services.
In addition to being a material breach of this Agreement, your failure to
comply with the provisions of this section shall entitle us to full recourse
against you for any damages, losses, or expenses sustained by that failure.
This remedy shall be in addition to, and not in lieu of, those provided for
in this Agreement and at law, and shall survive termination of this
Agreement.
6. WARRANTIES, LIMITATION OF WARRANTIES, AND LIMITATION OF LIABILITY
For each service we provide, we warrant that we will perform in a competent
manner.
EXCEPT AS SPECIFIED IN THIS SECTION, ALL EXPRESS OR IMPLIED CONDITIONS,
REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OR CONDTIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, SATISFACTORY QUALITY, AGAINST INFRINGEMENT OR ARISING FROM A COURSE
OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT
ALLOWED BY APPLICABLE LAW. This disclaimer and exclusion shall apply even if
the express warranty set forth above fails of its essential purpose.
PRODUCTS AND SERVICES PURCHASED THROUGH US ARE SOLD AS-IS. TO THE EXTENT
THAT THESE PRODUCTS AND SERVICES HAVE WARRANTIES, YOU AGREE TO LOOK TO THE
MANUFACTURER OR SUPPLIER FOR ALL CLAIMS. WARRANTIES MADE BY THESE
MANUFACTURERS AND SUPPLIERS MAY NOT BE PASSED THROUGH TO YOU, AND WE
EXPRESSLY DISCLAIM ANY OBLIGATION TO AFFECT SUCH A PASS THROUGH SHOULD ONE
BE POSSIBLE.
IN NO EVENT WILL Bizarre-Host’S LIABILITY HEREUNDER EXCEED THE AGGREGAGE
FEES ACTUALLY RECEIVED BY Bizarre-Host FROM CUSTOMER FOR THE 12 MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE
PURPOSES OF THIS PARAGRAPH ONLY, THE TERM Bizarre-Host SHALL BE INTERPRETED
TO INCLUDE Bizarre-Host’S EMPLOYEE’S, AGENTS, OWNERS, DIRECTORS, OFFICERS,
AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH
Bizarre-Host.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL
NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD
Bizarre-Host OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD
PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR
LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER
PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU
AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT
OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF Bizarre-Host HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW
THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS Bizarre-Host’S LIABILITY WILL
BE LIMITED TO THE EXTENT PERMITTED BY LAW.
7. INDEMNIFICATION
You agree to indemnify, defend and hold harmless Bizarre-Host and its
parent, subsidiary and affiliated companies, and each of their respective
officers, directors, employees, shareholders 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 (i) your use of our products (ii) any
violation by you of the AUP; (iii) any breach of any of your
representations, warranties or covenants contained in this Agreement; or
(iv) any acts or omissions by you. The terms of this section shall survive
any termination of this Agreement. For the purpose of this paragraph only,
the terms used to designate you include you, your customers, visitors to
your website, and users of your products or services, the use of which is
facilitated by us.
If you fail to comply with any terms of this Agreement, you shall be fully
responsible for the cost of labour and any and all other costs, losses or
legal expenses incurred by us in order to rectify the damage caused by you,
or due to that damage.
8. OPERATION OF FACILITIES
In order to implement the services, you may be required to provide us with
technical information. If we do not receive this information in a
commercially reasonable amount of time, and the Agreement is terminated by
us, you will continue to be responsible for all non-recurring charges, and
any recurring charges accrued and/or invoiced up to and until termination.
9. NOTICES
All notices must be sent in one of the following manners (i) by a recognized
express carrier using delivery confirmation; (ii) by registered mail, return
receipt requested; or (iii) by facsimile in which both the broadcasting
machine and receiving machine date stamp each page of a transmitted
document. Notices shall be deemed effective 2 business days following the
date upon which receipt is indicated. However, if in the case of items (i)
or (ii) above, should the notices be refused or the date of receipt be
otherwise unavailable, notice will be deemed received 10 business days from
actual deposit with the carrier. We reserve the right to contact you by
e-mail regarding issues related to your account and this contract, other
than material breaches and our termination of this Agreement. Our e-mail
notices are effective 10 minutes after they are sent by our servers. Your
e-mail communications to us shall not constitute notice. All notices will be
sent to you at the address set out on your initial order form. It is your
obligation to ensure that we have correct information to which to send
notices. All notices to us shall be sent as follows.
All notices:
Bizarre-Host
Sanatoriev12
282 31 Tyringe
Sweden
Fax: +4645151946
10. OPERATION OF OUR FACILITIES
We retain the right to maintain and operate our facilities in such a manner
as will best enable us to conduct our normal business operations. You may
not terminate this Agreement based on changes in this operation unless such
a change materially alters the type of product or service provided by us. In
particular, you are not guaranteed a particular IP or IP block, shared
server allocation, server rack, colocation space, or other physical
location. At times, IP renumbering of server/equipment moves may be
necessary; you agree to cooperate with us in the case of such a renumbering
or move.
11. GENERAL
11.1. Choice of law, jurisdiction and forum
This Agreement shall be governed by the laws of the Commonwealth of Virginia
without regard to its choice of law rules. The parties specifically disclaim
the application of the United Nations Convention for the International Sale
of Goods. Federal courts located in Fairfax County, Virginia shall have sole
and exclusive jurisdiction over this Agreement. All actions relating to this
Agreement shall be brought in the U.S. District Court for the Eastern
District of Virginia. The parties expressly agree that jurisdiction is
proper in the court set out in this paragraph.
11.2. Force Majure
Other than obligations regarding payments or confidentiality, neither party
shall be in default or otherwise liable for any delay in or failure to
perform under this Agreement if such a delay or failure is caused by an
event beyond its reasonable control. Events beyond a party’s reasonable
control include, but are not limited to, any act of God, any act of a common
enemy, the elements, earthquakes, floods, fires, epidemics, inability to
secure products or services from other persons, entities or transportation
facilities, failures or delay in transportation or communications, or any
act or failure to act by the other party or such other party’s employees,
agents or contractors. Such a delay or failure shall not constitute a breach
of this Agreement. Lack of funds shall not constitute a reason beyond a
party’s reasonable control.
11.3. Transfer and Assignment
You may not sell, assign or transfer any of your rights or obligations under
this Agreement without our prior written consent. We reserve the right to
transfer services we provide to you, or assign this Agreement, at any time,
without your consent or knowledge.
11.4. Waiver
Any failure or delay on our part in exercising any of the rights or powers
given to us in this Agreement shall not operate as a waiver of such a right
or power, or affect our right to exercise the same or any other right or
power at a later date.
11.5. Severability
Should any paragraph or aspect of this Agreement be determined to be
contrary to law, the remainder of the Agreement shall be interpreted in such
a manner as if the omitted portions had not been included.
11.6. Drafting
Each party acknowledges that they have been given the opportunity to review
this Agreement and discuss it with counsel of their choice. The Agreement
shall be interpreted as if it had been jointly drafted, and shall not be
construed against the drafter.
11.7. Survival
The following paragraphs shall survive the termination or expiration of this
Agreement: 2 (Payment), 3 (Taxes), 5.4 (Reselling), 6 (Warranties and
Limitation of Warranties), 7 (Indemnification), 9 (Notices), 11 (General).
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