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This documentation is a combination of Terms of Serviuce(TOS) from the various services we use. These policies must be uphelp to ensure that our services will continue to run undisrupted for all users.
No-Ware, Networks ("No-Ware") is the leading comprehensive hosting
solutions provider to middle market companies. This Services Agreement ("Agreement")
governs your purchase and use, in any manner, of all services provided by No-Ware
and any of its affiliates (the "Services").
You must accept the terms of this Agreement in order to use
the Services.
NOTWITHSTANDING, BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ
THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN
AS WELL AS ALL ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE.
No-Ware reserves the right to change or modify any of the terms and conditions
contained in this Agreement, any Addendums and any policy or guideline incorporated
by reference at any time and from time to time in its sole discretion, and to
determine whether and when any such changes apply to both existing or future customers.
Any changes or modification will be effective upon posting of the revisions on
the No-Ware Web site (the "Site"). Your continued use of Services
following No-Ware's posting of any changes or modifications will constitute
your acceptance of such changes or modifications.
1. Term and Payment for Services
1.1. Term This Agreement shall be for an "Initial Term"
as chosen by you in the Order Form located on this Site at the time you register
for the Services. This Agreement will be automatically renewed (the "Renewal
Term") at the end of the Initial Term for the same period as the Initial
Term unless you provide No-Ware with notice of termination thirty (30) days
prior to the end of the Initial Term or the Renewal Term. You must provide No-Ware
with your notice of termination by clicking on the "Cancel Service"
button located on the Site or as otherwise provided by this Agreement. Upon
clicking on the "Cancel Service" button, you will be asked to provide
No-Ware with sufficient customer identification information so that No-Ware
may properly identify you and your account. Any notice of termination will be
effective following thirty (30) days after No-Ware's receipt thereof.
1.2. Termination Policy If you terminate your receipt of the
Services prior to the end of the Initial Term or the Renewal Term, whichever
is then applicable, (a) No-Ware will not refund to you any fees paid in
advance of such termination and (b) you shall be required to pay 100% of No-Ware's
standard monthly charge for each month remaining in the term, unless otherwise
expressly provided in this Agreement. Notwithstanding the foregoing, if you
terminate your receipt of Shared Hosting Services prior to the end of the first
thirty (30) days of the Initial Term, you are entitled to a refund of the fees
you paid in advance for the monthly Services, not including any set-up fees.
Your termination request or notice must be submitted to No-Ware in the manner
described in Section 1.1. No-Ware may terminate this Agreement at any time
and for any reason by providing to you written notice thirty (30) days prior
to the date of termination. If No-Ware terminates this Agreement, No-Ware
will refund to you the pro-rata portion of pre-paid fees attributable to Services
(excluding set-up fees) not yet rendered as of the termination date unless otherwise
expressly provided in this Agreement.
1.3 Default and Cure In the event that either party hereto defaults
in the performance of any of its material duties or obligations under this Agreement,
including failure to make any payments due under this Agreement, and such default
is not cured within five (5) days after written notice is given to the defaulting
party specifying the default, then the party not in default, after given written
notice thereof to the defaulting party, may terminate this Agreement.
1.4. Charges You agree to pay for all charges attributable to
your use of the Services at the then current No-Ware prices, which shall
be exclusive of any applicable taxes. You are responsible for the payment of
all federal, state, and local sales, use, value added, excise, duty and any
other taxes assessed with respect to the Services, other than taxes based on
No-Ware's net income.
1.5. Payment All charges for Services must be paid in advance
according to the then current prices applicable to the Services. Upon entering
this Agreement, you must choose to pay either by direct charge to a credit or
debit card, or receive an invoice and submit subsequent payment. If you choose
to pay by credit or debit card upon registering for the Services, you thereby
authorize No-Ware to charge your credit or debit card to pay for any charges
that may apply to your account. You agree that No-Ware may accumulate any
supplemental charges, incurred by you in your use of the Services ("Supplemental
Charges") until such charges exceed $20 and then charge your account. You
must notify No-Ware of any changes to your card account (including, without
limitation, applicable account number or cancellation or expiration of the account),
your billing address, or any information that may prohibit No-Ware from
charging your account. If you choose to be invoiced upon registration for Services,
No-Ware will invoice you for the Services applicable to the period for which
you have registered for the Services. No-Ware may also create periodic invoices
for any applicable Supplemental Charges associated with your use of the Services.
No-Ware will send you a statement reflecting the accumulated invoices. You
agree to pay to No-Ware the amount indicated in each invoice by the due
date reflected on that invoice. If you fail to pay any fees and taxes by the
applicable due date for credit card or invoice payments, late charges of the
lesser of one and one-half per cent (1.5%) per month or the maximum allowable
under applicable law but at no time less than $15 shall also become payable
by you to No-Ware. In addition, your failure to fully pay any fees and taxes
within five (5) days after the applicable due date will be deemed a material
breach of this Agreement, and No-Ware may, in addition to any other remedy
it may have: (i) suspend its performance of the Services and/or terminate this
Agreement; and/or (ii) take possession and ownership of any of your property
(including any and all intellectual property) in No-Ware's possession at
the time of such non-payment and liquidate such property in any reasonable manner
in partial or full satisfaction of any unpaid amounts. You agree to sign any
documents to facilitate such a transfer of your property and, in the event that
No-Ware is unable for any reason to secure your signature to any document
required for such transfer, you hereby irrevocably designate and appoint No-Ware
and its authorized officers and agents as your agent and attorney-in-fact to
act on your behalf to execute such documents. Any such suspension or termination
of the Services would not relieve you from paying past due fees plus interest.
In the event of collection enforcement, you will be liable for any costs associated
with such collection, including, without limitation, reasonable attorneys' fees,
court costs and collection agency fees. All charges are considered valid unless
disputed in writing with sixty(60) days of the billing date. Adjustments will
not be made for charges that are over 60 days old. Delinquent accounts may be
suspended or cancelled at No-Ware's sole discretion; however charges will
continue to accrue until the account is cancelled.
2. Use of Services
2.1. Applicable Use Policy The No-Ware Acceptable Use Policy
(the "Usage Policy") govern the general policies and procedures for
use of the Services. The Usage Policy is posted on No-Ware's Web site (or
such other location as No-Ware may specify) and may be updated from time-to-time.
YOU SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE
TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. No-Ware
RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE
POLICY OR THIS AGREEMENT.
2.2. Material and Product Requirements Unless we have agreed
otherwise in a separate agreement, you must ensure that all material and data
placed on No-Ware's equipment is in a condition that is "server-ready,"
which is in a form requiring no additional manipulation by No-Ware. No-Ware
will make no effort to validate any of this information for content, correctness
or usability. If your material is not "server-ready", No-Ware
has the option at any time to reject this material. No-Ware will notify
you of its refusal of the material and afford you the opportunity to amend or
modify the material to satisfy the needs and/or requirements of No-Ware.
Use of the Services requires a certain level of knowledge in the use of Internet
languages, protocols and software. This level of knowledge varies depending
on the anticipated use and desired content of your Web site. You must have the
necessary knowledge to create and maintain a Web site. It is not No-Ware's
responsibility to provide this knowledge or customer support outside of the
Services agreed to by you and No-Ware.
2.3. Bandwidth and Storage Usage You agree that use of the Services
under this Agreement will not exceed the bandwidth and storage usage limits
set out. If you use any bandwidth or storage space in excess of the agreed upon
number of megabytes per month, you agree to pay the associated additional charges.
3. Enforcement
3.1. Investigation of Violations No-Ware may investigate any
reported or suspected violation of this Agreement, its policies or any complaints
and take any action that it deems appropriate and reasonable under the circumstance
to protect its systems, facilities, customers and/or third parties. No-Ware
will not access or review the contents of any e-mail or similar stored electronic
communications except as required or permitted by applicable law or legal process.
3.2. Actions No-Ware reserves the right and has absolute
discretion to restrict or remove from its servers any content that violates
this Agreement or related policies or guidelines, or is otherwise objectionable
or potentially infringing on any third party's rights or potentially in violation
of any laws. If we become aware of any possible violation by you of this Agreement,
any related policies or guidelines, third party rights or laws, No-Ware
may immediately take corrective action, including, but not limited to, (a) issuing
warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting
any and all uses of content hosted on No-Ware's systems, and/or (d) disabling
or removing any hypertext links to third party Web sites, any of your content
distributed or made available for distribution via the Services, or other content
not supplied by No-Ware which, in No-Ware's sole discretion, may violate
or infringe any law or third-party rights or which otherwise exposes or potentially
exposes No-Ware to civil or criminal liability or public ridicule. It is
No-Ware's policy to terminate repeat infringers. No-Ware's right to
take corrective action, however, does not obligate us to monitor or exert editorial
control over the information made available for distribution via the Services.
If No-Ware takes corrective action due to such possible violation, No-Ware
shall not be obligated to refund to you any fees paid in advance of such corrective
action.
3.3. Disclosure Rights To comply with applicable laws
and lawful governmental requests, to protect No-Ware's systems and customers,
or to ensure the integrity and operation of No-Ware's business and systems,
No-Ware may access and disclose any information it considers necessary or
appropriate, including, without limitation, user profile information (i.e.,
name, e-mail address, etc.), IP addressing and traffic information, usage history,
and content residing on No-Ware's servers and systems. No-Ware also
reserves the right to report any activity that it suspects violates any law
or regulation to appropriate law enforcement officials, regulators, or other
appropriate third parties.
4. Intellectual Property Rights
4.1. Your License Grant to No-Ware You hereby grant
to No-Ware a non-exclusive, worldwide, and royalty-free license for the
Initial Term and any Renewal Term to use your content as necessary for the purposes
of rendering and operating the Services to you under this Agreement. You expressly
(a) grant to No-Ware a license to cache materials distributed or made available
for distribution via the Services, including content supplied by third parties,
and (b) agree that such caching is not an infringement of any of your intellectual
property rights or any third party's intellectual property rights.
4.2. No-Ware Materials and Intellectual Property All materials,
including but not limited to any computer software (in object code and source
code form), data or information developed or provided by No-Ware or its
suppliers or agents pursuant to this Agreement, and any know-how, methodologies,
equipment, or processes used by No-Ware to provide the Services to you,
including, without limitation, all copyrights, trademarks, patents, trade secrets
and other proprietary rights are and will remain the sole and exclusive property
of No-Ware or its suppliers, including but not limited to any software programs,
inventions, products and/or technology innovations and methodologies utilized,
developed, or disclosed by No-Ware during the term of this Agreement. Unauthorized
copying, reverse engineering, decompiling, and creating derivative works based
on the any such software is expressly forbidden except as permitted in this
Agreement. You may be held legally responsible for violation of any patent rights,
copyright or trade secret rights that is caused or encouraged by failure to
abide by the terms of this Agreement.
4.3. Trademarks You hereby grant to No-Ware a limited right
to use your trademarks, if any, for the limited purpose of permitting No-Ware
to fulfill its duties under this Agreement. This is not a trademark license
and no other rights relating to the trademarks are granted by this Agreement.
Specifically, but without limitation, the rights granted by this Agreement do
not include the right to sublicense use of your trademarks or to use your trademarks
with any other products or services outside the scope of the Services provided
under this Agreement. The limited trademark use rights granted under this section
terminate upon termination of this Agreement.
5. Warranty; Warranty Disclaimer
5.1. Customer and/or Third Party Acts No-Ware is not responsible
in any manner for any nonconforming Services to the extent caused by you or
your customers. In addition, No-Ware is not responsible for loss or corruption
of data in transmission, or for failure to send or receive data due to events
beyond No-Ware's reasonable control.
5.2. No Express or Implied Warranty ALL SERVICES, SYSTEMS AND
PRODUCTS PROVIDED BY No-Ware UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY
EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. YOU ACKNOWLEDGE AND
AGREE THAT No-Ware EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY
FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH No-Ware'S COMPUTERS,
NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. No-Ware DOES NOT WARRANT
THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY
SECURE, AND DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT,
TRADE SECRET OR TRADEMARK INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT
ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE
INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION
SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, No-Ware DOES NOT
MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS
OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING,
WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT,
COPYRIGHT, TRADESECRET OR TRADEMARK INFRINGEMENT.
5.3 Your Warranties and Representations to No-Ware You warrant,
represent, and covenant to No-Ware that (a) you are at least eighteen (18)
years of age or are a duly organized and validly existing entity; (b) you possess
the legal right and ability to enter into this Agreement; (c) you will use the
Services only for lawful purposes and in accordance with this Agreement and
all applicable policies and guidelines; (d) you will be financially responsible
for the use of your account; (e) you have acquired or will acquire all authorization(s)
necessary for hypertext links to third-party Web sites or other content; (f)
you have verified or will verify the accuracy of materials distributed or made
available for distribution via the Services, including, without limitation,
your content, descriptive claims, warranties, guarantees, nature of business,
and address where business is conducted, and (g) your content and/or any software
that you install or provide does not and will not infringe or violate any right
of any third party (including any intellectual property rights) or violate any
applicable law, regulation or ordinance.
6. Limitation and Exclusion of Liability
6.1. Limitations IN NO EVENT SHALL No-Ware HAVE ANY
LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR
DESTRUCTION OF INFORMATION PROVIDED TO No-Ware, DISTRIBUTED OR MADE AVAILABLE
FOR DISTRIBUTION VIA THE SERVICES. No-Ware SHALL HAVE NO LIABILITY UNDER
THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL,
OR PUNITIVE DAMAGES EVEN IF No-Ware HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF No-Ware TO YOU FOR ANY REASON
AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO
No-Ware BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY
PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL
CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH
OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS,
AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY No-Ware UNDER THIS AGREEMENT
HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY,
YOU HEREBY RELEASE No-Ware FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND
CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME STATES
DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY
LAW.
6.2. Interruption of Service You hereby acknowledge and agree
that No-Ware will not be liable for any temporary delay, outages or interruptions
of the Services. Further, No-Ware shall not be liable for any delay or failure
to perform its obligations under this Agreement, where such delay or failure
results from any act of God or other cause beyond its reasonable control (including,
without limitation, any mechanical, electronic, communications or third-party
supplier failure).
6.3. Maintenance You hereby acknowledge and agree that No-Ware
reserves the right to temporarily suspend services for the purposes of maintaining,
repairing, or upgrading its systems and network. No-Ware will use best efforts
to notify you of pending maintenance however at no time is under any obligation
to inform you of such maintenance.
7. Indemnification You will
defend, indemnify and hold harmless No-Ware and its officers, directors,
shareholders, employees, consultants, agents, affiliates and suppliers (an "Indemnitee")
from any and all threatened or actual claims, demands, causes of action, suits,
proceedings (formal or informal), losses, damages, fines, penalties, liabilities,
costs and expenses of any nature, including attorneys' fees and court costs,
sustained or incurred by or asserted against any Indemnitee by any person, firm,
corporation, governmental authority, partnership or other entity by reason of
or arising out of or relating to: (i) your violation or breach of any term,
condition, representation or warranty of this Agreement or any applicable policy
or guideline; (ii) your conduct, including but not limited to your negligence,
gross negligence, or willful misconduct; (iii) your use of the Services, including
any improper or illegal uses; (iv) any claim by a former employee of yours whose
employment has been or may be terminated in connection with or as a result of
the execution of this Agreement and performance of the Services by No-Ware;
or (v) any claim relating to your services or products, or your installation
and/or use of any third-party software, including but not limited to advertising,
product liability claims or infringement of any trademark, copyright, patent,
trade secrets or non-proprietary right of a third party (including, without
limitation, defamation, libel, or violation of privacy or publicity).
8. Miscellaneous
8.1 Confidentiality The parties each agree that all Confidential
Information (as defined below) communicated to it by the other is done so in
confidence and will be used only for the purposes of this Agreement and will
not be used to compete with the other party or disclosed to any third party
without the prior written consent of the other party except as permitted under
this Agreement. "Confidential Information" means all information in
any form, including, without limitation, printed or verbal communications and
information stored in printed, optical or electromagnetic format, which relates
to the Services; or computer, data processing or electronic commerce programs
and software; electronic data processing applications, routines, subroutines,
techniques or systems; information which incorporates or is based upon proprietary
information of either party; or information concerning business or financial
affairs, product pricing, financial conditions or strategies, marketing, technical
systems of either party; or any information concerning customers or vendors
of either party; or any data exchange between a party and any customers or vendors.
Exceptions to Confidential Information include (1) information in the public
domain; (2) information developed independently by a party without reference
to information disclosed under this Agreement; or (3) information received from
a third party without restriction and/or breach of this or a similar Agreement.
It is not a violation of this provision to disclose Confidential Information
in compliance with any legal, accounting or regulatory requirement beyond the
control of either Party or, but in such case, prior to disclosure, the disclosing
Party shall give written notice to the other Party to permit that Party an opportunity
to challenge such disclosure. If either Party is subpoenaed, such Party shall
give written notice to the other Party to permit that Party an opportunity to
challenge the disclosure of Confidential Information. Upon the termination of
this Agreement and upon written request of the disclosing Party, each Party
shall promptly return all Confidential Information of the other Party. This
provision shall survive the termination of this Agreement for two (2) years.
8.2. Notices All notices, reports, requests, or other communications
given pursuant to this Agreement shall be made in writing, shall be delivered
by hand delivery, overnight courier service, fax, or electronic mail, shall
be deemed to have been duly given when delivered.
8.3. Choice of Law and Forum THIS AGREEMENT, WILL BE
GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF TEXAS, WITHOUT REFERENCE
TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST
BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN TEXAS, AND YOU IRREVOCABLY
CONSENT TO THE JURISDICTION OF SUCH COURTS.
8.4. Entire Agreement This Agreement and all policies and guidelines
incorporated in this Agreement by reference constitutes the entire Agreement
of the parties and may not be modified or altered orally but only by an agreement
in writing signed by both parties.
8.5. No Fiduciary Relationship; No Third‑Party Beneficiaries
No-Ware is not the agent, fiduciary, trustee or other representative of
you. Nothing expressed or mentioned in or implied from this Agreement is intended
or shall be construed to give to any person other than the parties hereto any
legal or equitable right, remedy or claim under or in respect to this Agreement.
This Agreement and all of the representations, warranties, covenants, conditions
and provisions hereof are intended to be and are for the sole and exclusive
benefit of the parties hereto.
8.6. Assignments You may not transfer or assign your rights,
duties, or obligations under this Agreement without No-Ware's prior written
consent. No-Ware may assign its rights and obligations under this Agreement
and may utilize affiliate and/or agents in performing its duties and exercising
its rights under this Agreement, without your consent. Subject to that restriction,
this Agreement will be binding on, inure to the benefit of, and be enforceable
against the parties and their respective successors and assignees.
8.7. No Waiver No-Ware's failure to enforce the strict performance
of any provision of this Agreement will not constitute a waiver of No-Ware's
right to subsequently enforce such provision or any other provisions under this
Agreement.
8.8. Severability If any provision of this Agreement
is deemed illegal, invalid, void or otherwise unenforceable in whole or in part,
that provision shall be severed or shall be enforced only to the extent legally
permitted, and the remainder of the provision and the Agreement shall remain
in full force and effect. If any provision of this Agreement is deemed to be
invalid, void or unenforceable only with respect to a particular application,
such term or provision shall remain in full force and effect with respect to
all other applications.
8.9. Survival All provisions of this Agreement relating
to your warranties, intellectual property rights, limitation and exclusion of
liability, your indemnification obligations and payment obligations shall survive
the termination or expiration of this Agreement.
___________________________________________________________________
Copyright © 2003 No-Ware, Networks
Sincerely,
Brian McBride
IV-XX / No-Ware Network - Founder
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