Webservio Terms of Service
READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR OTHERWISE USE THE SERVICES. YOUR USE OF THE SERVICES INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS AND CONDITIONS.
This Terms of Service agreement (the "Agreement") sets forth the terms and conditions of your use of the information technology services, support, and products (collectively, the "Services") sold by Webservio, Inc. (the "Company"). The Company retains the right to modify the Agreement at any time and any such modification shall be automatically effective when posted on its websites, including without limitation www.webservio.net and www.webservio.com (the "Sites"). By utilizing the Company's Services, you agree to be bound by the terms herein and as modified. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions. The Terms of Access are incorporated herein by reference.
2. Registration and Password.
In consideration of use of the Services, you agree to: (i) provide true, accurate, current and complete payment information and all other information about yourself (such information being the "Registration Data"); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You are solely responsible for maintaining the confidentiality of all passwords and accounts provided to you for the Services or Sites, and are fully responsible for all activities that occur under your password or account. You agree to: (i) immediately notify the Company of any unauthorized use of your password or account or any other breach of security; and (ii) ensure that you exit from your account at the end of each session. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 2. The Company, in its sole discretion, reserves the right to refuse to register you for the Services within thirty (30) calendar days from receipt of your payment for such Services. In the event the Company does not register you for Services within such thirty (30) calendar day period, the Company agrees to refund your applicable fee(s). You agree that the Company shall not be liable to you for loss or damages that may result from our refusal to register for the Services.
3. Contract and Non-Contract Services.
This Agreement hereby incorporates by reference any and all proposals for services, quotations, and any attachments or addendums thereto, which are submitted in writing to you by Company and accepted by an authorized representative of both parties (the "Approved Contracts"). The Approved Contracts will describe the services and products to be provided to you (the "Contract Services"). In the event that the scope of the Contract Services is expanded, revised, or modified, the parties shall prepare and approve an amended or new Approved Contract or provide a description of the changed or additional service(s) being requested with the additional fees for such services or out-of-scope work (the "Change Request"), which likewise, once approved, shall be incorporated as an addendum to the existing Approved Contract. Any products or services ordered by you and provided by Company which are not provided pursuant to an Approved Contract (the "Non-Contract Services") may be ordered and provided on an as-needed or hourly basis, or as otherwise agreed by the parties, subject to the terms and conditions of this Agreement.
4. Term and Payment for Services.
4.1 Term and Termination.
This Agreement shall be for an initial term as chosen by you during the registration process at the time you register for the Services for each of the respective Services, or as specified in an Approved Contract (the "Initial Term"). This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term for each respective Service unless you provide Company with notice of termination thirty (30) days prior to the end of the Initial Term or the Renewal Term. You must provide Company with your notice of termination in writing thirty (30) days prior to the actual termination date of the Services unless otherwise provided by this Agreement or an Approved Contract. Upon canceling any Services, you will be asked to provide Company with sufficient customer identification information so that Company may properly identify you and your account. You agree that cancellation of any or all Services is not valid or accepted unless submitted via Company's prescribed method of cancellation, and until you are in receipt of confirmation from Company that cancellation is accepted. You agree that default, non-payment or reversal of payment does not constitute cancellation of any of the Services, nor reduce the balance due on any amounts outstanding.
4.2 Termination Policy.
You have thirty (30) days from date of account setup to be eligible for a refund. All refunds requested during such period with a "valid complaint" will receive a refund of the charged periods. The Company shall determine whether a complaint is a "valid complaint" in its sole and absolute discretion. You will not receive a refund for any setup fees or any fees other than the monthly or yearly recurring hosting fees. Fees resulting from extra services, "add-ons", domain name service and any services provided by third parties after this agreement are not classified as monthly or yearly recurring fees and thus are not refundable. Termination by you at any time after thirty days of account setup shall require payment of all fees that would have been due through the full duration of the then current Initial or Renewal Term.
4.3 Termination for Cause.
Company reserves the right to terminate this Agreement, and to delete any website or other data associated with the Services, immediately upon the occurrence of any of the following events:
- (i) non-payment of any amounts due from you;
- (ii) failure to provide a current and/or valid credit or debit card;
- (iii) breach of any term or condition of this Agreement by you. Indirect or attempted violations of this Agreement and actual or attempted violations by a third party on your behalf shall be considered violations of this Agreement by you;
- (iv) commencement of any lawsuit or proceeding against you arising from or relating to your use of the Services or any related website, whether or not such suit names Company as a party or seeks any recovery from Company; and
- (v) revocation of consent to use your personal information to an extent that prevents Company from carrying out its contractual obligations to you.
No credits will be issued for any interruption or termination of Services for cause and violators may be subject to additional fees or fines including, without limitation, any applicable reconnection fees.
You agree that all monthly or yearly fees are recurring. You agree to authorize all recurring charges to the account and any other balances incurred due to overages of limits, additions of extras to the account, service charges, late fee penalties, and/or any other fees. You agree to pay for all charges attributable to your use of the Services at the then current Company 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 Company's net income.
All charges for Services must be paid in advance according to the then current prices applicable to the Services. Upon entering this Agreement, if you provide Company with credit or debit card information, you thereby authorize Company to charge your credit or debit card to pay for any charges that may apply to your account. You must notify Company 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 Company from charging your account. 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.
4.6 Effect of Termination
Upon the effective termination or cancellation of any of the respective Services, you shall, with respect to each Service terminated or cancelled, immediately discontinue your use of the respective terminated or cancelled Services and all licenses relating thereto shall also terminate. Any and all payment obligations of you under this Agreement for Services will immediately become due and payable.
The provisions of Sections 1, 3-4, 5.2, 11-16, 18-26 will survive termination or expiration of this Agreement with respect to any or all of the Services. All other rights and obligations of the parties shall cease upon termination or expiration of this Agreement. This Agreement shall continue to apply in all respects to any Services not terminated as provided for herein.
5. Additional Terms for Colocation.
5.1 Customer Responsibilities.
Unless otherwise agreed in an Approved Contract, Company shall not be responsible for the installation, removal, operation, maintenance or replacement of any software, computer hardware, and all other equipment, goods and personal property owned by you or licensed or leased by you from third parties (the "Equipment"). If it is necessary or desirable to relocate the Equipment to another area in the facilities designated by Company, or to another facility, the parties will cooperate in good faith with each other to facilitate such relocation. You represent, warrant and covenant that:
- (i) you have and will maintain the legal right and authority to use, operate and locate any Equipment in all areas designated by Company;
- (ii) neither the execution of this Agreement nor the performance of your obligations hereunder will cause or constitute a breach of any agreements to which you are bound;
- (iii) all Equipment, materials and other tangible items placed by you in facilities designated by the Company will be installed, operated, used and maintained by you in compliance with all applicable laws and manufacturer specifications;
- (iv) all Equipment will be maintained by you in an orderly and safe condition;
- (v) you shall not (and shall not permit others operating at your request, under your instruction, direction, control or supervision to) access, rearrange, reconfigure, disconnect, remove, repair, replace, damage or otherwise tamper with (or attempt to do any of the foregoing to) any of the facilities or the properties or space of any other person or company at the facilities. Access to the Equipment will be limited solely to the representatives of you or your company that are identified by you and designated in an authorized list (the "List"), and you are solely responsible for delivering the List to Company and for updating the List. Company shall have no obligation to verify that any information provided by you in the List is current or accurate, and Company shall be entitled to rely upon all such information in admitting persons identified therein; and
- (vi) the Equipment shall be at your risk at all times and you shall be responsible for insuring the equipment against all risks. You shall also effect and maintain insurance for public liability, material damage and business interruption coverage from the start of the Initial Term until such date as is necessary to ensure that insurance is provided for all of your liabilities arising under this Agreement and which would usually be covered under such policies irrespective of when any claim in relation to any such liability is made. Such insurance shall be maintained with a reputable insurer and will include a waiver of subrogation in favor of Company and/or the facilities operator and you shall produce on demand for inspection by Company and/or the facilities operator adequate proof of such insurance.
5.2 Effect of Termination
Upon the effective termination or cancellation of colocation Services, you shall within five (5) days remove from the facilities all Equipment and any other property of yours located at the facilities and return the facilities to the Company in the same condition as existed before providing such Services to you, normal wear and tear excepted. If you do not remove the Equipment and your other property as provided herein, the Company will have the right to do one or more of the following, without liability therefore:
- (i) reclaim the facilities and remove all property there from without being guilty in any manner of trespass or any claim for damages, and without prejudice to any remedies for such breach by you;
- (ii) enter upon and take possession of and re-license the facilities and receive monthly charges and other fees therefore;
- (iii) alter all locks and other security devices at the facilities;
- (iv) move any Equipment to secure storage and charge you for the cost of such removal and storage; and/or
- (v) liquidate the Equipment in any reasonable manner, applying all proceeds first to the cost of such liquidation, then to all payment obligations due hereunder (first being applied to accrued interest), and the balance thereof, if any, shall be paid to you.
6. Additional Terms for Domain Name Registration.
You represent that, to the best of the your knowledge and belief, neither the registration of the domain name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party and that the domain name is not being registered for any unlawful purpose. You agree that, by registration or reservation of your chosen domain name, such registration or reservation does not confer immunity from objection to either the registration, reservation, or use of the domain name. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of your domain name registration information by Company. You may access your domain name registration information in our possession to review, modify or update such information, by accessing our domain manager service, or similar service, made available by Company through the registrar. In order to change any of your account information with us, you must use your user name and password that you selected when you opened your account with us. Please safeguard your user name and password from any unauthorized use. In no event will we be liable for the unauthorized use or misuse of your user name or password.
6.2 ICANN Dispute Policies and Related Issues.
If you reserved or registered a domain name through Company, or transferred a domain name to Company from another registrar, you agree to be bound by the now existing and all new versions of all dispute policies promulgated by the Internet Corporation for Assigned Names and Numbers ("ICANN"), which are incorporated by reference. You can find the most recent dispute policies on the ICANN Web site located at www.icann.org. You agree that, if the registration or reservation of your domain name is challenged by a third party, you will be subject to the provisions specified in the dispute policy in effect at the time of the dispute. You agree that your registration of the domain name shall be subject to suspension, cancellation, or transfer pursuant to any ICANN-adopted policy, or pursuant to any registrar or registry procedure not inconsistent with an ICANN-adopted policy: (i) to correct mistakes by the registrar or the registry in registering the name; or (ii) for the resolution of disputes concerning the domain name. You also agree to release, indemnify and hold the Company harmless pursuant to the terms and conditions contained in any ICANN dispute policy. You agree and acknowledge that the Company will make domain name registration information you provide available to ICANN, to the registry administrators, and to other third parties as ICANN and applicable laws may require or permit. You further agree and acknowledge that the Company may make publicly available, or directly available to third party vendors, some, or all, of the domain name registration information you provide, for purposes of inspection (such as through our WHOIS service) or other purposes as required or permitted by ICANN and the applicable laws. You hereby consent to any and all such disclosures and use of, and guidelines, limits and restrictions on disclosure or use of, information provided by you in connection with the registration of a domain name (including any updates to such information), whether during or after the term of your registration of the domain name.
6.3 Transfer of Ownership.
The person named as Registrant contact at the time the controlling user name and password are secured shall be the owner of the domain name. You agree that prior to transferring ownership of your domain name to another person (the "Transferee") you shall require the Transferee to agree, in writing, to be bound by all the terms and conditions of this Agreement. Your domain name will not be transferred until we receive such written assurances or other reasonable assurance that the Transferee has been bound by the contractual terms of this Agreement (such reasonable assurance as determined by us in our sole discretion) along with the applicable transfer fee. If the Transferee fails to be bound in a reasonable fashion (as determine by Company in Company's sole discretion) to the terms and conditions in this Agreement, any such transfer will be null and void. Should you transfer your domain name or should the domain name otherwise be transferred to another registrar, the terms and conditions of this contract shall cease and shall be replaced by the contractual terms in force for the purpose of registering domain names then in force between domain name holders and the new registrar.
7. Additional Terms for IT Services.
7.1 Customer Responsibilities.
In addition to any obligations and responsibilities described in an Approved Contract or elsewhere in this Agreement, you shall have shared responsibility with Company regarding the following:
- (i) ensure that the necessary business and application knowledge is available and conveyed from your existing support team to Company;
- (ii) provide ready access to office space, all Equipment, documentation, and personnel (i.e. end users and technical representatives) necessary to fully understand the current business systems and environments throughout the life of the engagement;
- (iii) provide external communications capability and/or access to your office(s) to enable Company's on-site employee(s) or representative(s) to access your information technology system for after hours or weekend Services as required; and
- (iv) provide passwords or other access information to Company employees as needed.
7.2 Termination Notice.
You must provide Company with your notice of termination in writing sixty (60) days prior to the actual termination date of the Services.
8. Additional Terms for Hosting Services.
8.1 Use and Storage Limits.
You acknowledge that the Company may establish general practices and limits concerning use of the Services, including without limitation the maximum number of days that email messages, message board postings or other uploaded content will be retained by the Services, the maximum number of email messages that may be sent from or received by an account on the Services, the maximum size of any email message that may be sent from or received by an account on the Services, the maximum disk space that will be allotted on the Company's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Services in a given period of time. You acknowledge that the Company reserves the right to log off accounts that are inactive for an extended period of time.
8.2 Compromised Accounts.
If Company in its sole discretion determines that your server, email, website, or other account on the Services (the "Account") has become the source or target of any violation concerning this Agreement, Company reserves the right to suspend network access to the Account. While Company will attempt to contact you prior to such action, advance notification to you is not assured. Company and its designees will act, in its sole discretion, to protect the integrity of their network, data, and property. In certain cases, Company will contact law enforcement and other agencies regarding these activities. You agree to be responsible for all charges, as well as any fees relating to the investigation, suspension, administration and handling of the Account before, during and after the suspension period. Once Company has determined that the Account has been compromised and Company has generated a support ticket to notify you of the compromised Account, you will have five (5) days after the creation of the ticket to contact Company to resolve the issue. If the issue is not resolved to the satisfaction of the Company after five days, the compromised Account may be cancelled and removed permanently from the network. Inquiries regarding security matters may be directed to firstname.lastname@example.org.
8.3 Data Backups.
Unless otherwise agreed in an Approved Contract, Company will not be responsible for your data or backups of the Services. Company will attempt to create, on a regular schedule, backups of servers which may include your websites, email, and other data. However, it is your responsibility to take and keep regular backups of your data to use in case of error or failure. Should you require a restore, data restoration from the most recent, valid, client-provided backup will be provided as quickly as the restore process allows subject to standard hourly rates.
9. Additional Terms for Marketing Services.
You hereby represent, warrant and covenant that you have the legal authority to use and all licenses necessary with respect to any materials, including without limitation, images, graphics, written copy, or contact lists, that you deliver to the Company in connection with any marketing Services.
10. Your Representations, Warranties, and Covenants.
You shall not post, transmit, email, re-transmit or store material on or through any of Services which, in the sole judgment of the Company: (i) is in violation of any local, state, federal or non-United States law or regulation; (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, "Persons"); or (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for use by you. You shall be responsible for determining what laws or regulations are applicable to your use of the Services. In addition, you may only use the Services in a manner that, in the Company's sole judgment, is consistent with the purposes of such Services. If you are unsure of whether any contemplated use or action is permitted, please contact the Company at email@example.com. By way of example, and not limitation, the following uses described below of the Services are expressly prohibited:
- (i) upload, post, email or otherwise transmit any information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (collectively, "Content") that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable. Pornography and pornographic related merchandising are prohibited under all Services, including providing links to pornographic content elsewhere;
- (ii) harm or violate the rights of minors in any way;
- (iii) impersonate any person or entity, including, but not limited to, a the Company official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- (iv) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services or develop restricted or password-only access pages, or hidden pages or images (those not linked to from another accessible page);
- (v) upload, post, email or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements;
- (vi) upload, post, email or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- (vii) upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas of the Services that are designated for such purpose;
- (viii) upload, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- (ix) disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Services are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
- (x) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
- (xi) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
- (xii) "stalk" or otherwise harass another;
- (xiii) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating "Crush" sites; and
- (xiv) effecting security breaches or disruptions of internet communication. Security breaches include, but are not limited to, accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorized to access.
Company may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Violators of this Agreement are responsible, without limitations, for the cost of labor to clean up and correct any damage done to the operation of the network and business operations supported by the network, along with the cost of labor to respond to complaints incurred by Company as a direct or indirect result of such violations. Such labor is categorized as emergency security breach recovery and is currently charged at $250 USD per hour.
11. Indemnification of Company.
You shall indemnify, defend and hold harmless Company, its employees, officers, directors, contractors, representatives and agents, and other customers of Company, from and against any and all claims, demands, actions, suits, proceedings, and all damages, judgments, liabilities, losses and expenses (including without limitation, reasonable attorneys' fees) arising out of, based upon, relating to, or resulting from:
- (i) any product or service provided by you in connection with the delivery or consumption of Services;
- (ii) the acts, omissions, negligence or willful misconduct of you, your employees, officers, directors, contractors (other than Company and its agents or representatives) and end users or customers, including, without limitation, with respect to any use of the Services, facilities provided to you, transmission of information, the operation, condition, or content of any web page, website, or other internet graphical or non-graphical interface, or the conduct of any business, advertising, marketing or sales in connection therewith;
- (iii) your, and your employees, agents and representatives' access to, use and/or occupancy of the facilities of or provided by Company in connection with the Services and Equipment;
- (iv) the infringement or misappropriation by you, your employees, officers, contractors, agents, representatives, end users or customers of the intellectual property rights of any person including, without limitation, any patent, copyright, trademark or trade secret or other third party right, in connection with your use of the Services and/or Content;
- (v) any breach of this Agreement by you;
- (vi) the use or misuse of any login and/or password;
- (vii) the use of any lists, email addresses, or other personally identifiable information provided by you to Company in connection with marketing Services; or
- (viii) any domain name dispute between you and any third party;
12. Disclaimer of Warranties.
You expressly understand and agree that your use of the Services is at your sole risk. The Services are provided on an "as is" and "as available" basis. The Company expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement, non-interference, system integration, and informational content. The Company makes no warranty that:
- (i) the Services will meet your requirements;
- (ii) the Services will be uninterrupted, timely, secure, or error-free;
- (iii) the results that may be obtained from the use of the Services will be accurate or reliable;
- (iv) the quality of any products, services, information, or other material purchased or obtained by you through the Services will meet your expectations; and
- (v) any errors in the Services or any software related thereto will be corrected.
No advice or information, whether oral or written, obtained by you from the Company or through or from the Services or the Sites shall create any warranty not expressly stated in this Agreement or an Approved Contract.
13. Limitation of Liability.
You expressly understand and agree that Company shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including without limitation, damages for loss of profits, goodwill, use, data or other intangible losses (even if Company has been advised of the possibility of such damages), resulting from:
- (i) the use or the inability to use the Services, including without limitation delays, mis-deliveries, or non-deliveries of Services, or from any interruptions in Services;
- (ii) the cost of procurement of substitute Services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Services;
- (iii) unauthorized access to or alteration of data;
- (iv) statements or conduct of any third party on the Services; or
- (v) any other matter relating to the Services.
In no event shall the total and aggregate liability of Company exceed $50.00 for any or all of the Services, unless expressly stated in an Approved Contract. In the event that an Approved Contract provides for a different total and aggregate liability, it will control for that specific Approved Contract only. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
14. Force Majeure.
The Company shall not be liable to you, nor shall any remedy be extended, for any failure of performance or equipment due to causes beyond the Company's reasonable control including, but not limited to: acts of God, fire, explosion, lightning, flood, earthquake, tornado, storms, meteorological, hydrological or geological conditions or other catastrophes caused thereby; any law, order, regulation, direction, action, or request of any governmental or regulatory entity or agency, or any civil or military authority; emergencies; civil unrest, insurrections, riots, wars; unavailability of rights-of-way, third party services or materials; or strikes, lock-outs, work stoppages, labor shortages or other labor difficulties; or transmission failures, telecommunication line or power breaks or outages, viruses, denial of service attacks, or failure of the Internet. In the event any of the foregoing occurs and the Company is unable to deliver the Service for thirty (30) consecutive days, you shall have the right to terminate this Agreement pursuant hereto. In the event of such termination, neither party shall be liable for damages arising out of any failure to perform.
15. Confidential Information.
15.1 Disclosure of Confidential Information.
The parties understand and acknowledge that, from time to time, each party may desire to disclose to and receive from the other party certain information, including without limitation, pricing and financial data, marketing strategy and activity, customer lists, service and/or sales methodology, network designs, ideas, concepts, expertise, analyses, proposals, contracts, business plans, forecasts, plans and specifications of any product or service, or other business or technical information which is marked or identified as "confidential" at the time of disclosure or confirmed in writing as confidential within thirty (30) days after disclosure (the "Confidential Information"); provided, however, that (i) the failure of the disclosing party (the "Discloser") to so designate any material shall not relieve the receiving party (the "Recipient") of the obligation to maintain the confidentiality and restrict the use of any unmarked material which Recipient knows to contain Confidential Information of the Discloser; and (ii) all written or oral pricing and contract proposals exchanged between the parties shall be deemed Confidential Information whether or not so designated. Within the 30-day period referenced above, all information communicated only orally shall be treated as Confidential Information and be subject to the use and disclosure restrictions of this Agreement.
15.2 Use of Confidential Information.
The Recipient (i) shall not disclose Confidential Information to any third party at any time without the prior written consent of the Discloser; (ii) shall take reasonable measures to prevent any unauthorized access or disclosure by its employees, agents, contractors, consultants, or any other third party; and (iii) shall use such Confidential Information only for the purpose of fulfilling its obligations for the purposes of this Agreement.
The following shall not be considered Confidential Information for the purposes of this Agreement:
- (i) information which is or becomes public domain through no fault or act of the Recipient;
- (ii) information which was independently developed by the Recipient without the use of or reliance on the Discloser's Confidential Information;
- (iii) information which was provided to the Recipient by a third party under no duty of confidentiality to the Discloser;
- (iv) information which the Discloser agrees in writing is free of such restrictions; or
- (v) information which is required to be disclosed by law, provided however, prompt prior notice thereof shall be given to the Discloser to the extend legally permitted and practicable under the circumstances.
15.4 Injunctive Relief.
If the Recipient discloses or uses (or threatens to disclose or use) any Confidential Information of the Discloser in breach of this Section 15, the Discloser shall have the right to seek and obtain injunctive relief to enjoin such acts, in addition to any other remedies available under this Agreement or at law.
16. Proprietary Rights and Responsibilities.
16.1 Company Technology.
The Company's internet operations, design, content, hardware designs, algorithms, software (in source and object forms), user interface designs, Sites and other templates and designs, architecture, class libraries, and documentation (both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world, and any derivative works, improvements, enhancements or extensions thereof used in connection with the Services (the "Company Technology") are and shall remain the sole and exclusive property of the Company.
16.2 License and Restrictions.
Company grants you a personal, non-transferable, non-sublicensable, and non-exclusive right and license to use the Services only as set forth herein. You agree that you will not (and will not allow any third party to) copy, modify, rent, lease, loan, distribute, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any code of the Company Technology, in whole or in part.
Company does not claim ownership of Content you display, upload, download, or otherwise transmit through the use of the Services. By submitting or using the Content in connection with the Services, you grant Company the right to backup, copy, use, modify, process and publish the Content solely for the purpose of displaying, distributing and promoting the Content for the purpose intended for each respective Service. You acknowledge that Company does not pre-screen Content, but that Company and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Services. Without limiting the foregoing, Company and its designees shall have the right to remove any Content that violates the Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
17. Not for Resale.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services, unless such rights are expressly granted in an Approved Contract.
18. Third Party Providers.
Company may, at its option or at your request, provide products or services to you through third parties. All such products or services shall be provided "as is" without any warranty or liability of any kind as between you and Company, and your sole remedy for any and all purposes shall be with the third party.
19. Third Party Beneficiaries.
The parties agree that there shall be no third-party beneficiaries to this Agreement.
20. Independent Contractors.
The parties are independent contractors. Neither party is the agent for the other, and neither is authorized to enter into any contract for the other.
21. Non-solicitation of Employees.
You will not, either directly or indirectly (except through Company) solicit, hire, or contract with any Company employee during the term of this Agreement and for a one (1) year period following termination thereof (the "Non-solicitation Term"). In the event that you desire to directly hire any Company employee during the Non-solicitation Term, you must first seek Company's consent to directly hire the employee and to speak with the Company employee about the employment opportunity. If you hire a Company employee without first obtaining Company's written consent, you shall pay Company a liquidated damage equal to the gross annual salary of the employee, representative or agent in question. For hourly employees, representatives or agents, the "gross annual salary" is the amount earned per hour multiplied by forty (40) hours by fifty-two (52) weeks.
You agree to pay all expenses (including reasonable attorneys' fees and court costs) that Company incurs in exercising or enforcing any of its rights under this Agreement, including without limitation, its right to fees as described in Section 4 of this Agreement.
In the event that a term or condition of a particular Approved Contract conflicts with a term or condition in this Agreement, the term or condition of this Agreement shall control, unless expressly stated herein. To the extent there is a contradiction with any representation on the Sites and this Agreement, the terms of this Agreement shall control in all respects. Any request, description of work, or other statement, whether oral or written, that is not part of an Approved Contract shall not amend the terms of this Agreement.
24. Waiver and Severability.
Any failure in the exercise by either party of its right to terminate this Agreement or to enforce any provision of this Agreement for default or violation by the other party shall not prejudice such party's rights of termination or enforcement for any further or other default or violation or be deemed a waiver or forfeiture of those rights. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected.
The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
26. Governing Law and Venue.
The Company reserves the right to revise or change this Agreement at any time. This Agreement shall be governed in all respects under the laws of the State of Tennessee applicable to contracts made, without application to principles of conflict of laws, and you agree that the sole venue and jurisdiction for any disputes arising from this Agreement shall be the appropriate federal or state court located in the State of Tennessee, County of Knox.