Web Host Policy of The Internet Works
Last Updated: September 1, 2007
THIS SERVICE AGREEMENT ("Agreement") applies to the purchase from The Internet Works of all services(collectively, the "Services") selected by Customer (hereinafter referred to as "Customer") on the Quotation, as applicable, provided to the Customer. The Internet Works and Customer are sometimes referred to in this Agreement collectively as "parties" and individually as a "party".
In consideration of the mutual agreements and promises contained herein, the parties agree as follows:
The Internet Works reserves the right to modify its network and facilities used to provide the Services for purposes including but not limited to accommodating evolving technology and increased network demand, and providing enhanced services. The Internet Works shall use reasonable efforts to notify Customer of any planned changes to The Internet Works' network or facilities that may adversely affect the Services provided hereunder.
This Agreement shall be for the term of one month. This Agreement will be automatically renewed, at the end of the Initial Term, on a month-to-month basis unless either party provides written notice to the other of termination of this Agreement prior to the end of the then current term. The Initial Term and all month-to-month extensions thereof are collectively referred to herein as the “Term” of this Agreement.
3) BILLING AND PAYMENT
a) FEES: During the term of this Agreement, Customer shall pay the fees for the Services that are set forth on the Quotation, as applicable. Such fees may include taxes, fees or assessments by governmental agencies and The Internet Works shall have the right, at any time, to pass through and invoice to Customer any new or increased taxes, fees, assessments or other charges imposed on or required to be collected by The Internet Works by any governmental agency. Customer shall also be responsible for paying all taxes, fees or assessments and other charges imposed on Customer by any governmental agency that may result from this Agreement, or any of the activities contemplated hereunder.
b) Terms Of Payment: Invoices are due and payable upon receipt. All payments shall be made in U.S. currency.
c) Service Continuation After Initial Term: The fees set forth in the Quotation are guaranteed during the Initial Term of this Agreement. If Customer continues to receive the Services after the Initial Term without entering into a new agreement or agreement extension, the fees charged after the Initial Term shall be at the then standard The Internet Works rates for such services, without discount, determined month to month.
d) Service Charge: Customer will pay a late payment charge equal to 1.5% (or the highest amount permitted by law, whichever Is lower) per month or portion thereof on the outstanding balance of any invoice remaining unpaid thirty (30) days after the date upon which payment is due.
e) Suspension Or Interruption Of Service For Non-Payment: In the event Customer's account becomes past due, or is otherwise deemed insecure, The Internet Works may, in its sole discretion, suspend, interrupt or disconnect the Services. In the event of such suspension, interruption or disconnection, Customer may be required to post a deposit or such other security, as The Internet Works deems necessary in order to resume receiving the Services. In addition, if The Internet Works in its sole discretion, deems Customer to be financially insecure, The Internet Works may require such other action of Customer, including letters of credit, security deposit(s), restrictions on available credit or other action as The Internet Works may require from time to time regardless of Customer’s then-current status or payment history. Failure to satisfy The Internet Works's request for such action within timelines set by The Internet Works may result in immediate termination of service without further notice.
4) ACCEPTABLE USES
Customer shall at all times adhere to the The Internet Works Acceptable Use Policy located at http://www.the-internetworks.com/policy/aup.cfm, as amended from time to time by The Internet Works effective upon posting of the revised policy at the URL. Notwithstanding anything to the contrary contained herein, The Internet Works may immediately take corrective action, including disconnection or discontinuance of any and all Services, or terminate this Agreement in the event of notice of possible violation by Customer of the The Internet Works Acceptable Use Policy. In the event The Internet Works takes corrective action due to a violation of the The Internet Works Acceptable Use Policy, The Internet Works shall not refund to Customer any fees paid in advance of such corrective action.
5) CANCELLATION POLICY
a) The initial term of this Agreement shall be month-to-month for virtual accounts. For month-to-month contracts or after the expiration of the initial term of this Agreement, Customer may cancel this Agreement at will at any time with written notice to The Internet Works.
b) The Internet Works can cancel this Agreement at will at any time with written notice to the Customer. In the event that The Internet Works cancels this Agreement, the Customer will have a prorated refund of any unused portion of the billing period. Set-up and non-recurring fees are non-refundable.
c) Any termination by The Internet Works or Customer shall not relieve Customer of any obligations to pay fees accrued prior to such termination. Customer remains obligated to pay all amounts remaining in the Initial Term, and if The Internet Works has purchased equipment on behalf of Customer, including but not limited to circuit and router, Customer shall assume responsibility for payments for such equipment, until paid in full.
6) IP ADDRESS OWNERSHIP
The Internet Works shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer by The Internet Works and The Internet Works reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
Customer expressly (i) grants to The Internet Works a license to cache the entirety of Customer’s Web Site, including content supplied by third parties, hosted by The Internet Works under this Agreement and (ii) agrees that such caching is not an infringement of any of Customer intellectual property rights or any third party’s intellectual property rights.
8) BANDWIDTH AND/OR DISK USAGE
Customer agrees that bandwidth and/or disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Quotation. The Internet Works shall monitor the customer’s usage. If bandwidth or disk usage exceeds the agreed upon number of megabytes per month, The Internet Works, in its sole discretion, may assess additional standard charges, disconnect or discontinue any and all Services, or terminate this Agreement. In the event that The Internet Works elects to take such action, Customer shall not be entitled to a refund of any fees paid in advance of such corrective action.
The Internet Works is acting only as a reseller and/or provider of any hardware, software, circuit and equipment (collectively, the “Equipment”) offered under this Agreement that was manufactured by a third party. The Internet Works shall not be responsible for any changes in Service(s) that cause Equipment to become obsolete, require modification or alteration, or otherwise affect the performance of the Service(s). Any malfunction or manufacturer’s defects of Equipment either sold or provided by The Internet Works to Customer or purchased directly by Customer used in connection with the Service(s) will not be deemed a breach of The Internet Works’s obligations under this Agreement. Any rights or remedies Customer may have regarding the performance or compliance of Equipment are limited to those rights extended to Customer by the manufacturer of such Equipment. Customer is entitled to use any Equipment supplied by The Internet Works only in connection with Customer permitted use of the Service(s). Cuustomer shall not resell, transfer, export or re-export any Equipment, or any technical data derived there from, in violation of any applicable United States or foreign law.
10) DISCLAIMER OF WARRANTY
Customer acknowledges and agrees that The Internet Works exercises no control over, and accepts no responsibility for, the content of the information passing through The Internet Works’s host computers, network hubs and points of presence (the “The Internet Works Network”) or the Internet. NEITHER The Internet Works, ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS NOR THE LIKE 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 The Internet Works PROVIDES. NEITHER The Internet Works, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY 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. The Internet Works IS NOT LIABLE FOR THE CONTENT OR LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S CLIENTELE VIA THE SERVICE(S) PROVIDED BY The Internet Works.
Customer will indemnify, save harmless, and defend The Internet Works and all directors, officers, employees, and agents of The Internet Works (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 attorneys’ fees) arising out of or relating to the use of the Services by Customer, including any violation of the The Internet Works Acceptable Use Policy. Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.
12) LIMITATION OF LIABILITY
IN NO EVENT SHALL The Internet Works BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, SUFFERED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF The Internet Works HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will The Internet Works’s liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by Customer for the Service 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. Some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to Customer. In such jurisdictions, The Internet Works’s liability (and the liability of its affiliates, agents, content providers and service providers) shall be limited to the greatest extent permitted by applicable law.
13) FORCE MAJEURE
The Internet Works shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
14) INTELLECTUAL PROPERTY
Customer represents and warrants that Customer’s use of the Services shall not infringe the intellectual property or other proprietary rights of The Internet Works or any third party. Customer further acknowledges that all right, title and interest in any and all technology, including the software that is part of or provided with the Services and any trademarks or service marks of The Internet Works (collectively, “The Internet Works Intellectual Property”) is vested in The Internet Works and/or in The Internet Works’s licensors. Unless otherwise specifically provided in this Agreement, Customer shall have no right, title, claims or interest in or to the The Internet Works Intellectual Property. Customer may not copy, modify or translate the The Internet Works Intellectual Property or related documentation, or de-compile, disassemble or reverse engineer the The Internet Works Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so. Unless otherwise specifically provided in this Agreement, Customer is not authorized to distribute or to authorize others to distribute the The Internet Works Intellectual Property in any manner without the prior written consent of The Internet Works; provided, however, that nothing in this sentence would preclude Customer from using the The Internet Works Intellectual Property as incorporated in the Services. This paragraph shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which Customer may now have or hereafter acquires in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title or interest in the third-party software to Customer.
15) CONFIDENTIAL INFORMATION
a) Each party acknowledges that, in the course of the performance of this Agreement, it may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of the other party ("Confidential Information"). Except as provided in The Internet Works’s Acceptable Use Policy (AUP), each party agrees to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this Agreement. Upon request of either party or on termination or expiration of this Agreement, each party shall return the Confidential Information of the other party then in its possession. Nothing in this Agreement shall prohibit or limit either party’s use of information which (i) is now, or hereafter becomes, publicly known or available through lawful means; (ii) is rightfully in receiving party’s possession, as evidenced by receiving party’s records; (iii) is disclosed to the receiving party without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (iv) is independently developed by the receiving party without any breach of this Agreement; (v) is the subject of a written permission to disclose provided by the disclosing party; or (vi) is required by law to be disclosed.
16) CUSTOMER DATA
Customer is responsible for its content residing on The Internet Works servers, and except as otherwise agreed with The Internet Works, for the backup thereof.
17) SPECIFIC SERVICES
By selecting the specific Service(s) below as documented on the Quotation, the Customer agrees to be bond by the additional provisions within:
a) SHARED HOSTING
Server Set-Up and Updating. The Internet Works will initially configure the Server for use. After the Server is configured, the Customer will be solely responsible for all Web Server content management.
Maintenance Services. The Internet Works will perform maintenance services as The Internet Works determines reasonably necessary to maintain the continuous operation of the Server. Customer understands that such maintenance may require server downtime. The Internet Works will attempt to provide prior notice of the maintenance downtime, except when circumstances beyond The Internet Works’s control limit The Internet Works’s ability to do so.
Excessive CPU Usage. Customer agrees that Customer shall not use excessive amounts of CPU processing on any of The Internet Works’s servers. Any violation of this policy may result in corrective action by The Internet Works, in its sole discretion, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement. In the event that The Internet Works elects to take any corrective action, Customer shall not be entitled to a refund of any fees paid in advance prior to such corrective action. E-Commerce. Customer will be solely responsible for the development, operation and maintenance of Customer’s web site and products and all contents and materials appearing online or on Customer’s products, including without limitation (i) the accuracy and appropriateness of content and materials appearing within the web site or related to Customer’s products, (ii) ensuring that the content and materials appearing within the web site or related to Customer’s products do not violate or infringe upon the rights of any third party, and (iii) ensuring that the content and materials appearing within the web site or related to Customer’s products are not libelous or otherwise illegal. Customer will be solely responsible for the final calculation and application of shipping and sales tax. Customer will also be solely responsible for accepting, processing, and filling any customer orders, and for handling any customer inquiries or complaints arising there from.
Customer is also responsible for the security of any customer credit card numbers and related customer information Customer may access as a result of conducting electronic commerce transactions through the Software. Customer will keep all such information confidential and will use the same degree of care and security as Customer uses with Customer’s confidential information.
18) GOVERNING LAW
The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of California.
19) ENFORCEMENT OF AGREEMENT
In the event it is necessary for The Internet Works to enforce its rights under this agreement, Customer agrees to pay all fees incurred by The Internet Works (including, but not limited to, attorney's fees and collection agency fees)
20) AMENDMENT OR WAIVER
Except as otherwise provided herein, this Agreement may not be amended except upon the written consent of Customer and an officer of The Internet Works. No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any party of the time for performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself.
21) ASSIGNMENT AND SEVERABILITY
This Agreement shall be binding upon and inure to the benefit of Customer, The Internet Works and our respective successors, and assigns. Customer may not assign this Agreement without the prior written consent of The Internet Works, which consent will not be unreasonably withheld. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
All notices to Customer hereunder shall be given at the Billing Address provided on the signature page hereto. All notices to The Internet Works hereunder shall be given to:
The Internet Works
Any notice hereunder shall be in writing and shall be given by registered, certified or Express mail, or reliable overnight courier addressed to the addresses in this Agreement, or by facsimile. Notice shall be deemed to be given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed and with postage prepaid.
23) ENTIRE AGREEMENT
This Agreement, and any other document or agreements specifically identified in this Agreement, supercedes all previous representations, understandings or agreements.
24) ACCEPTANCE OF SERVICES
ACCEPTANCE OF THIS AGREEMENT BY The Internet Works MAY BE SUBJECT, IN The Internet Works’s ABSOLUTE DISCRETION, TO SATISFACTORY COMPLETION OF A CREDIT CHECK AND CONTINUED CREDIT WORTHINESS OF CUSTOMER. ACTIVATION OF SERVICE SHALL INDICATE The Internet Works’S ACCEPTANCE OF THIS AGREEMENT. USE OF THE The Internet Works NETWORK CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. CUSTOMER FURTHER REPRESENTS AND WARRANTS THAT CUSTOMER IS AT LEAST 18 YEARS OF AGE.