Universal Terms of Service Agreement

INMOTION HOSTING
UNIVERSAL TERMS OF SERVICE AGREEMENT
Last Revised: August 21, 2019

PLEASE READ CAREFULLY.

THIS CONTAINS TERMS AND CONDITIONS REGARDING CUSTOMER LEGAL RIGHTS AND REMEDIES FOR USING THIS WEBSITE AND/OR SIGNING UP FOR ANY SERVICES.

These Universal Terms of Service Agreement (“Agreement”) is an agreement between INMOTION HOSTING, INC. (“Company”) and the party (“Customer”) set forth in the related order form, which is incorporated herein by this reference (together with any subsequent order forms submitted by Customer, the “Order Form”), and applies to the purchase of all web based products and services ordered by Company to Customer on the Order Form (collectively, the “Services”).

BY USING THIS WEBSITE AND/OR SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER FORM, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT AND CUSTOMER ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE INTO THIS AGREEMENT, INCLUDING COMPANY’S OTHER POLICIES POSTED ON COMPANY’S WEBSITE. WHEN CUSTOMER SIGN UP FOR AND/OR CUSTOMER’S USE OF THE SERVICES SUCH CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

  1. Modification to this Agreement and/or the Services.
    1. Company may, in its sole and absolute discretion, change or modify this Agreement, and any other policies or agreements posted on Company’s website (“Policies”) which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to Company’s website (“Company’s Site”).
    2. Customer’s use of Company’s Site or the Services after such changes or modifications have been made shall constitute Customer’s acceptance of this Agreement as of the last revised date stated above. If Customer does not agree to be bound by this Agreement as of the last revised date, Customer should not use or continue to use Company’s Site or the Services.
    3. Company may occasionally notify Customer of changes or modifications to this Agreement by electronic mail. It is therefore important that Customer keep Customer’s Company account (“Account”) information accurate and current. Company assumes no liability or responsibility for Customer’s failure to receive an electronic mail notification if such failure results from an inaccurate Account information.
    4. Company may terminate Customer’s use Company’s Site or the Services for any violation or breach by Customer of any of the terms of this Agreement or Policies.
    5. COMPANY RESERVES THE RIGHT TO MODIFY, CHANGE, OR DISCONTINUE ANY ASPECT OF COMPANY’S SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION PRICES AND FEES FOR THE SAME, AT ANY TIME, WITH OR WITHOUT NOTICE.
  2. Authority To Contract.
    1. Company’s Site and the Services are available only to individuals (“Users”) who can form legally binding contracts under applicable law. By using Company’s Site or the Services, Customer represents and warrants that Customer is (i) at least eighteen (18) years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, or (iii) is not a person barred from purchasing or receiving the Services found under the laws of the United States or other applicable jurisdiction.
    2. If Customer enters this Agreement as a representative or on behalf of a corporate entity or third party that retains or may retain ownership in an Account, Customer represents and warrants that Customer has the legal authority to bind such corporate entity or third party to the terms and conditions contained in this Agreement, in which case the terms “Customer” or “User” shall refer to such corporate entity or third party. If, after Customer’s electronic acceptance of this Agreement, Company finds that Customer does not have the legal authority to bind such corporate entity or third party, Customer will be personally responsible for the obligations contained in this Agreement, including, but not limited to, any payment obligations. Company shall not be liable for any loss or damage resulting from Company’s reliance on any instruction, notice, document or communication reasonably believed by Company to be genuine and originating from an authorized representative of Customer’s corporate entity or third party. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Company reserves the right (but undertakes no duty) to require additional authentication from Customer. Customer further agrees to be bound by the terms of this Agreement for transactions entered into by Customer, anyone acting as Customer’s agent and anyone who uses Customer’s account or the Services, whether or not authorized by Customer.
  3. Customer’s Account.
    1. In order to access some of the features of Company’s Site or use some of the Services, Customer must create an Account. Customer represents and warrants to Company that all information Customer submits when Customer creates an Account is accurate, current, and complete, and that Customer will keep such Account information accurate, current and complete. If Company has reason to believe that the Account information is untrue, inaccurate, out-of-date or incomplete, Company reserves the right, in its sole and absolute discretion, to suspend or terminate the Account. Customer is solely responsible for the activity that occurs on the Account, whether authorized by Customer or not, and Customer must keep the Account information secure, including without limitation all Customer number or login, password, payment method(s). For security purposes, Company strongly recommends that Customer change Customer’s password periodically for any Account.
    2. If the Customer acts on behalf of a corporate entity or third party, upon request by Company, Customer shall provide Company with any contact or other information related to the true owner of the relevant Account.
    3. Customer agrees to abide by all U.S. Export Laws (as defined herein).
    4. Customer must notify Company immediately of any breach of security or unauthorized use of the Account. Customer may be liable for any loss Company or others incur caused by an Account, whether caused by Customer, or by an authorized person, or by an unauthorized person.
  4. Acceptable Use Policy and Content
    1. Under this Agreement and Policies, Customer shall comply with Company’s then current Acceptable Use Policy (“AUP”), as amended, modified or updated from time to time by Company, which currently can be viewed here or under the Legal Details section of Company’s Site, and which is incorporated in this Agreement by this reference.
    2. Customer hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. Company does not monitor the content that is submitted to, stored on or distributed or disseminated by Customer via the Services (collectively, the “Customer Content”). Customer Content also includes (but is not limited to) content of Customer’s website(s), customer(s) and/or user(s).
    3. Some of the features of Company’s Site or the Services may allow Users to view, post, publish, share, store, or manage ideas, opinions, recommendations, or advice via forum posts, literary, artistic, musical, or other content (“User Content”). All content submitted through an Account is considered User Content. By posting or publishing User Content to Company’s Site or through the Services, Customer represents and warrants to Company that (i) Customer has all necessary rights to distribute User Content via Company’s Site or via the Services, either because Customer is the author of the User Content and has the right to distribute the same, or because Customer has the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party.
    4. Customer understands and agrees that the content posted and/or stored on the Customer’s website(s) will not contain adult content, pornography nudity of any kind, and/or the written word of a sexual nature.
    5. Customer understands and agrees that posting and/or storing of material that contains hate speech is not permitted.
    6. Customer understands and agrees that all Customer Content posted and/or stored on Customer’s website(s) will not be used for committing or promoting any type of illegal activity including, but not limited to, fraud, mailbombing, denial of service attacks, storing and/or housing and/or linking to illegal content, including but not limited to, “warez,” “hacking”/”cracking”/”key generators,” gambling, obscene material, or be used in the traffic of illegal materials.
    7. Customer is not permitted to use ad-servers, attempts to circumvent quota system owned by “nobody,” certain podcasting sites, use of torrent software, proxies, excessive resource usage or ‘core dumping’, attempting to circumvent any of our or other sites security policies, procedures or systems.
    8. Customer shall be solely responsible for any and all of Customer Content or User Content that is submitted through an Account, and the consequences of, and requirements for, distributing it.
    9. Customer shall be solely responsible and will be held liable for incorrect setting of netmasks, routes, or any other network configuration or programming issue which causes unnecessary broadcast or multicast traffic on Company’s network, or denial of service, deliberate or not, caused by forging address resolution protocol (“ARP”) queries or replies or by configuring internet protocol addresses into Customer’s hardware which were not assigned to Customer’s Account. The foregoing actions may result in disconnection of the Services. Any loss of functionality of the Account related to the foregoing actions will be and remain the Customer’s sole responsibility. If the foregoing actions are deemed by Company to not warrant an immediate and drastic action, Customer will be contacted.
    10. Notwithstanding anything to the contrary contained in this Agreement, Company may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement. In the event Company takes corrective action due to a violation of this Agreement or the AUP, Company shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that Company shall have no liability to Customer or any of Customer’s customers due to any corrective action that Company may take (including, without limitation, disconnection of the Services).
  5. Customer’s Responsibilities.
    1. Customer is solely responsible for the quality, performance, and all other aspects of the Customer Content and the goods or services provided through the Services.
    2. Customer will cooperate fully with Company in connection with Company’s performance of the Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer’s performance of its obligations under this Agreement will extend the time for Company’s performance of its obligations that depend on Customer’s performance on a day for day basis.
    3. Customer assumes full responsibility for providing any of its end users with any required disclosure or explanation of the various features related to Customer Content and any goods or services described therein, as well as any rules, terms or conditions of use.
    4. Because the Services permit Customer to electronically transmit or upload content, Customer shall be fully responsible for uploading all content and supplementing, modifying and updating the Customer Content, including all back-ups. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Content are compatible with the hardware and software used by Company to provide the Services, as the same may be changed by Company from time to time. Specifications for the hardware and software used by Company to provide the Services will be available on Company’s Site. Company shall not be responsible for any damages to the Customer Content or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Content to be compatible with the hardware and software used by Company to provide the Services.
    5. CUSTOMER IS SOLELY RESPONSIBLE FOR MAKING BACK-UP COPIES OF ALL CUSTOMER CONTENT.
  6. Data Protection.
    1. The Services may involve the submission, collection and/or use of personally identifying or identifiable information about Users, Customer and Customer own customers (“Data”) in the course of Customer use of these Services (“Covered Services”). The Data, for the purpose of this Section, excludes any User Content. Company’s Data Processing Addendum (“DPA”), which is hereby incorporated by reference and applicable to Covered Services, is meant to provide Customer contractual assurance that Company has robust mechanisms to ensure the transfer of Customer Data, including transfers of Customer Data from the European Economic Area (“EEA”) to the Covered Services, meets with compliance under applicable data privacy laws. The DPA can be viewed on the Company website.
    2. For the purposes of the DPA and the Standard Contractual Clauses attached to the DPA (when and as applicable), Customer (and Customer applicable affiliates) are considered the Data Controller/Data Exporter (as such terms are defined in the DPA), and Customer acceptance of the terms of service governing Covered Services at the time of purchase of any Covered Services will also be treated as Customer acknowledgment and acceptance of the DPA and its appendices (including the Standard Contractual Clauses and its appendices, as applicable). If Customer wishes to print, sign and return a physical copy of the DPA, please send an email request to privacy@inmotionhosting.com.
    3. General Data Protection Regulation (“GDPR”) Company has made clear the opt-out procedure for sharing of personal data, implemented security measures to safeguard the personal data that we do keep, minimized the data collected to that which is relevant to the operation of our business and the customer’s site, made available the data collected in an easily accessible way to the customers to whom it belongs, as well as provide an easy method by which they can request that their personal data be purged from our system. Company’s GDPR information can be located on the Company website.
  7. Customer’s Representations and Warranties.
    1. Customer hereby represents and warrants to Company, and agrees that during the Initial/Introductory Term and any Term (as such terms are defined herein) thereafter Customer will ensure that:
      1. Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any Person;
      2. Customer’s use, publication, and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
      3. Customer will comply with all applicable laws, rules, and regulations regarding the Customer Content and will use the Customer Content only for lawful purposes; and
      4. Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, Trojan horses, and other malicious code.
    2. Customer shall be solely responsible for the development, operation and maintenance of Customer Content, online store and electronic commerce activities, for all products and services offered by Customer or appearing online and for all contents and materials appearing online or on Customer’s products, including, without limitation: the accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products; ensuring that the Customer Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person; and ensuring that the Customer Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. Customer shall be solely responsible for accepting, processing, and filling customer orders and for handling customer inquiries or complaints. Customer shall be solely responsible for the payment or satisfaction of any and all taxes associated with its web site and online store.
    3. Customer grants Company the right to reproduce, copy, use, and distribute all and any portion of the Customer Content to the extent needed to provide and operate the Services.
    4. In addition to transactions entered into by Customer on Customer’s behalf, Customer also agrees to be bound by the terms of this Agreement for transactions entered into on Customer’s behalf by anyone acting as Customer’s agent, and transactions entered into by anyone who uses Customer’s account, whether or not the transactions were on Customer’s behalf.
  8. License to Company. Customer hereby grants to Company a non-exclusive, royalty-free, worldwide right and license during the Initial Term and any Term thereafter to do the following to the extent necessary in the performance of the Services:
    1. digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content;
    2. make archival or back-up copies of the Customer Content (although Company is not required to do so; Customer is solely responsible for backing-up any Customer Content);
    3. except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer; and
    4. Company, in its sole discretion, reserves the right (i) to deny, cancel, suspend, transfer or alter, modify, correct, amend, change, program, or take any other corrective action to protect the integrity and stability of the Services (including altering, modifying, correcting, amending, changing, programming, or taking any other corrective action regarding any malicious code, software or related abusive activity, Customer Content and/or web site(s)), and/or (ii) to comply with any applicable laws, government rules, or requirements, requests of law enforcement, or to avoid any liability, civil or criminal. Customer further agrees that Company shall not be liable to Customer for any loss or damages that may result from such conduct.
  9. Billing and Payment.
    1. Customer shall pay to Company any fees for the Services in the manner set forth in the Order Form.
    2. Any Service fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Company’s net income). All such taxes will be added to Company’s invoices for the fees as separate charges to be paid by Customer. All fees are fully earned when due and subject to Company’s refund policy, when paid to Company.
    3. Unless otherwise specified, all fees and related charges shall be due and payable within thirty (30) days after the date of the invoice. If any invoice is not paid within seven (7) days after the date of the invoice, Company may charge Customer a late fee of $15.00 for; in addition any amounts payable to Company not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less.
    4. If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Customer and Company are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company’s reasonable attorneys’ fees.
    5. If any check is returned for insufficient funds Company may impose a minimum processing charge of $25.00.
    6. In the event that any amount due to Company remains unpaid seven (7) days after such payment is due, Company, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
    7. A minimum charge of $50.00 to reinstate accounts that have been suspended or terminated.
    8. Wire transfers will be assessed a minimum $35.00 charge.
    9. A minimum charge of $35.00 for all credit card chargebacks will be assessed.
    10. Autorenewal
      1. Other than as required by applicable law, Company does not retain hard copies or electronic versions of mandate, standing order or standing instruction forms and/or any signed consents relating to Customer payment or usage of Company automatic renewal services, and Company are therefore unable to provide any such document upon request.
      2. IN ORDER TO ENSURE THAT CUSTOMER DO NOT EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, THE SERVICES ARE OFFERED ON AUTOMATIC RENEWAL. EXCEPT FOR REASONS DESCRIBED BELOW IN THIS SECTION, AUTOMATIC RENEWAL RENEWS THE APPLICABLE SERVICE UPON EXPIRATION OF THE THEN CURRENT TERM FOR A RENEWAL PERIOD EQUAL IN TIME TO THE MOST RECENT SERVICE PERIOD.
      3. UNLESS CUSTOMER DISABLES THE AUTOMATIC RENEWAL OPTION, COMPANY WILL AUTOMATICALLY RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL AND WILL TAKE PAYMENT FROM ANY PAYMENT METHOD CUSTOMER HAVE ON FILE WITH COMPANY AT COMPANY’S THEN CURRENT RATES, WHICH CUSTOMER ACKNOWLEDGE AND AGREE MAY BE HIGHER OR LOWER THAN THE RATES FOR THE ORIGINAL SERVICE PERIOD. IN ORDER TO SEE THE RENEWAL SETTINGS APPLICABLE TO CUSTOMER AND THE SERVICES, CUSTOMER WILL NEED TO LOG INTO THE CUSTOMER ACCOUNT. IF CUSTOMER DOES NOT WANT ANY SERVICE TO AUTOMATICALLY RENEW, CUSTOMER MAY ELECT TO CANCEL RENEWAL, IN WHICH CASE, THE SERVICES WILL TERMINATE UPON EXPIRATION OF THE THEN CURRENT TERM, UNLESS CUSTOMER MANUALLY RENEWS THE SERVICES PRIOR TO THAT DATE (IN WHICH CASE THE SERVICES WILL AGAIN BE SET TO AUTOMATIC RENEWAL). FOR AVOIDANCE OF DOUBT, SHOULD CUSTOMER ELECT TO CANCEL CUSTOMER PRODUCT AND FAIL TO MANUALLY RENEW THE SERVICES BEFORE THEY EXPIRE, CUSTOMER MAY EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, AND COMPANY SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY REGARDING THE SAME.
      4. IN AN EFFORT TO ENSURE THE SUCCESSFUL RENEWAL OF A CUSTOMER DOMAIN NAME AND/OR SECURED SOCKET LEVEL (“SSL”) REGISTRATION, COMPANY MAY PROCESS THE RENEWAL CHARGES UP TO TWO WEEKS IN ADVANCE OF CUSTOMER’S EXPIRATION DATE UNLESS CUSTOMER EXPLICITLY REQUESTS IN WRITING OTHERWISE.
      5. COMPANY MAY PARTICIPATE IN “RECURRING BILLING PROGRAMS” OR “ACCOUNT UPDATER SERVICES” SUPPORTED BY CUSTOMER CREDIT CARD PROVIDER (AND ULTIMATELY DEPENDENT ON CUSTOMER BANK’S PARTICIPATION). IF COMPANY ARE UNABLE TO SUCCESSFULLY CHARGE CUSTOMER EXISTING PAYMENT METHOD, CUSTOMER CREDIT CARD PROVIDER (OR CUSTOMER BANK) MAY NOTIFY COMPANY OF UPDATES TO CUSTOMER CREDIT CARD NUMBER AND/OR EXPIRATION DATE, OR THEY MAY AUTOMATICALLY CHARGE CUSTOMER NEW CREDIT CARD ON COMPANY BEHALF WITHOUT NOTIFICATION TO COMPANY. IN ACCORDANCE WITH ANY RECURRING BILLING PROGRAM REQUIREMENTS, IN THE EVENT THAT COMPANY ARE NOTIFIED OF AN UPDATE TO CUSTOMER CREDIT CARD NUMBER AND/OR EXPIRATION DATE, COMPANY WILL AUTOMATICALLY UPDATE CUSTOMER PAYMENT PROFILE ON CUSTOMER BEHALF. COMPANY MAKES NO GUARANTEES THAT COMPANY WILL REQUEST OR RECEIVE UPDATED CREDIT CARD INFORMATION. CUSTOMER ACKNOWLEDGE AND AGREE THAT IT IS CUSTOMER SOLE RESPONSIBILITY TO MODIFY AND MAINTAIN CUSTOMER ACCOUNT SETTINGS, INCLUDING BUT NOT LIMITED TO (I) CANCELLING THE SERVICES AND (II) ENSURING CUSTOMER ASSOCIATED PAYMENT METHOD(S) ARE CURRENT AND VALID. FURTHER, CUSTOMER ACKNOWLEDGE AND AGREE THAT CUSTOMER FAILURE TO DO SO, MAY RESULT IN THE INTERRUPTION OR LOSS OF THE SERVICES, AND COMPANY SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY REGARDING THE SAME.
      6. If for any reason Company is unable to charge Customer payment method for the full amount owed, or if Company receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to Customer payment method, Customer agrees that Company may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation of the Services, without notice to Customer. Company also reserves the right to charge Customer reasonable “administrative fees” for (i) tasks Company may perform outside the normal scope of its Services, (ii) additional time and/or costs Company may incur in providing the Services, and/or (iii) Customer noncompliance with these TOS (as determined by Company in its sole and absolute discretion), which typical administrative or processing fee scenarios include, but are not limited to (a) customer service issues that require additional personal time or attention; (b) recouping any and all costs and fees, including the cost of the Services, incurred by Company as the results of chargebacks, reversals, payment disputes, penalties or other payment disputes brought by Customer, Customer bank or Customer payment method processor. These administrative fees or processing fees will be billed to the payment method Customer has on file with Company.
      7. Company may offer a Service pricing in various currencies. The transaction(s) will be processed in the selected currency and the pricing displayed during the checkout process will be the actual amount submitted for payment. For certain payment methods, the issuer of Customer payment method may charge Customer a foreign transaction fee or other charge(s), which may be added to the final amount that appears on Customer bank statement or post as a separate amount. Please check with the issuer of Customer payment method for details. In addition, regardless of the selected currency, Customer acknowledges and agrees that Customer may be charged Value Added Tax (“VAT”), Goods and Services Tax (“GST”), or other localized fees and/or taxes, based on Customer bank and/or the country indicated in Customer billing address section.
  10. Customer Conduct. Company will protect the health, safety, and welfare of our employees. Unprofessional conduct, threats, abusive language (including, but not limited to, disparaging remarks regarding the sex, race, religion, or sexual orientation of our employees) and/or anything that could be considered hate speech in the course of Customer communications with Company will not be tolerated. Persistence in these behaviors throughout the Contact can and may result in the termination of that communication. Repeated offenses over multiple contacts may lead to the termination of Customer account without refund as determined by Company’s sole discretion.
  11. Company as Reseller or Licensor. Company may act only as a reseller or licensor of the hardware, software, and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (“Non-Company Product”). Company shall not be responsible for any changes in the Services that cause the Non-Company Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Company Product either sold, licensed or provided by Company to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Company’s obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-Company Product are limited to those rights extended to Customer by the manufacturer of such Non-Company Product. Customer is entitled to use any Non-Company Product supplied by Company only in connection with Customer’s permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Company to Customer through any Non-Company Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-Company Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
  12. Internet Protocol (IP) Address Ownership. If Company assigns Customer an Internet Protocol (“IP”) address for Customer’s use, the right to use that IP address shall belong only to Company, and Customer shall have no right to use that IP address except as permitted by Company in its sole and absolute discretion in connection with the Services, during the term of this Agreement. At all times, Company shall own and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Company, and Company reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. Any IP numbers which remain unused after a 30-day period will be subject to reassignment by Company, as determined in its sole discretion. In such event, no prior notice will be given to Customer; however, Company may email Customer to inform of the action taken. Any services performed and/or costs incurred in reclaiming any unused IP numbers which have been registered as nameservers will be billed to Customer at Company’s then current administrative services rates.
  13. Caching. Customer expressly grants to Company a license to cache the entirety of the Customer Content, including content supplied by Users or to third parties, and agrees that such caching is not an infringement of any of Customer, User or third party’s intellectual property rights.
  14. CPU Usage. Customer agrees that Customer shall not use excessive amounts, as defined by Company, of CPU processing on any of Company’s servers. Any violation of this policy may result in corrective action by Company, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in Company’s sole and absolute discretion. If Company takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
  15. Bandwidth and Disk Usage. Company shall provide Customer with a large volume of bandwidth, disk space, and other resources as defined in the Service offering. The Services are intended for reasonable, as determined by the Company, business use only. Any activity that results in excessive usage inconsistent with reasonable usage patterns is strictly prohibited. Customer agrees that such bandwidth and disk usage shall not exceed the amounts set by Company for the Services (the “Agreed Usage”). These allotments are optimized and dedicated towards serving the Customer Content. Customer shall not use any bandwidth and/or disk usage for materials other than the Customer Content. Company will monitor Customer’s bandwidth and disk usage. Company, in its sole discretion, shall have the right to take any corrective action if Customer’s bandwidth or disk usage exceeds the Agreed Usage or other improper storage or usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, removal or deletion of Customer Content and/or other materials or termination of this Agreement, which actions may be taken in Company’s sole and absolute discretion. If Company takes any such corrective action under this section, Customer shall not be entitled to a refund or credit of any fees paid prior to such action. Customer will comply with all applicable laws, rules, and regulations regarding Customer Content.
  16. Property Rights.
    1. Company hereby grants to Customer a limited, non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use Company technology, products and services solely for the purpose of accessing and using the Services. Customer may not use Company’s technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Company to Customer any Company technology, all rights, titles, and interests in, and to any Company technology, shall remain solely with Company. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company.
    2. Company owns all right, title and interest in and to the Services and Company’s trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems (“Marks”). Nothing in this Agreement constitutes a license to Customer to use or resell the Marks.
    3. Company’s “Web Interface” and “C-Panel” are proprietary to Company. Although Company does not protect either with compilation nor encryption, each is protected under trademark, copyright, trade secret, and other laws. Customer shall not modify or distribute such proprietary materials in any fashion unless authorized in writing by Company. Under no circumstances will Company allow Customer to make any changes to any copyright notice and/or disclaimers related thereto. Requests for modification(s), including translating into other languages, addition of links or advertising, changes to menus, or customer-specific options, must be sent to the Company’s Legal Department via the methods found at Company’s Website. All such requests are subject to an approval process by Company. Changes for the benefit of a single customer which would cause more than one concurrent version of the software will not be considered.
  17. Term; Termination; Cancellation Policy.
    1. The initial/introductory term of this Agreement shall be as set forth in the Order Form or when you signed up for the Services (the “Initial Term”). The Initial Term shall begin upon commencement of the Services. After the Initial Term, this Agreement shall automatically renew. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term.”
    2. AFTER THE INITIAL TERM, CUSTOMER ACKNOWLEDGES, AGREES AND AUTHORIZES COMPANY TO AUTOMATICALLY BILL AND/OR CHARGE ON CUSTOMER’S CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED HEREIN. REFER TO SECTION 9, BILLING AND PAYMENT, FOR ADDITIONAL DETAILS.
    3. This Agreement may be cancelled by Customer upon proper notice to Company, prior to the end of the Initial Term or any Term thereafter. Customer will be subject to a minimum $50.00 charge as an early cancellation fee. If Customer cancels this Agreement, no refund will be provided for unused time on the Account if outside the criteria of the Money Back Guarantee. Customer shall be obligated to pay one hundred percent (100%) of all charges for all Services for each month remaining in the Term. Customer shall be obligated to pay all fees and charges accrued prior to the date of such cancellation. Company may, but is under no obligation to, refund to Customer any pre-paid fees for the Services but only for the full months remaining after effectiveness of cancellation. No partial month fees shall be refunded. Any refund in this manner will be less any setup and/or cancellation fees, regular cost of any “free” services, and any discount(s) applied for prepayment, provided that Customer is not in breach of any terms and conditions of this Agreement or the Policies.
    4. Company may terminate this Agreement in the event of nonpayment by Customer. Company may also terminate, without penalty, if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, or as otherwise provided herein. Company will provide Customer as much prior notice as reasonably practicable.
    5. Company may terminate Customer account or access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately.
    6. Company may immediately terminate this Agreement, without penalty or notice and without refund, if Company, in Company’s sole and absolute discretion or judgment, determines that Customer’s use of the Services or Customer Content violates any Company term or condition of this Agreement or the Policies, or Customer’s use of the Services disrupts, or in Company’s sole and absolute discretion or judgment,
    7. Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 5, 7, 14, 15, 16, 24, 25 of shall survive the expiration or termination of for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled.
  18. Availability of the Services. Subject to the terms and conditions this Agreement and the Policies, Company shall use commercially reasonable efforts to attempt to provide Company’s Site and the Services on a twenty-four (24) hours a day, seven (7) days a week basis; however, such up-time is not a guarantee. Customer understands, acknowledges and agrees that from time to time Company’s Site and the Services may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions, periodic maintenance, repairs or replacements that Company undertakes from time to time or causes beyond Company’s reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. Customer understands, acknowledges and agrees that Company has no control over the availability of Company’s Site or the Services on a continuous or uninterrupted basis and that Company assumes no liability to Customer or any other party with regard thereto.
  19. Monitoring of Content; Reservation of Rights.
    1. Company does not pre-screen Customer Content or User Content. However, Company reserves the right (but undertakes no duty) to do so and decide whether any item of Customer Content or User Content is appropriate and/or complies with this Agreement. Company may remove any item of Customer Content or User Content and/or terminate a Customer or User’s access to Company’s Site or the Services posting or publishing any material in violation of this Agreement or the Policies, as determined by Company in its sole and absolute discretion, at any time and without prior notice. Company may also terminate a Customer or User’s access to Company’s Site or the Services if Company has reason to believe the Customer or User is a repeat offender. If Company terminates Customer or User access to Company’s Site or the Services, Company may, in its sole and absolute discretion, remove and destroy any data and files stored by Customer or User on its servers.
    2. Company expressly reserves the right to copy (but is under no obligation to do so), backup (but is under no obligation to do so), store (but is under no obligation to do so), replicate (but is under no obligation to do so), deny, cancel, terminate, suspend, lock, delete, or modify access to or control of any Account or the Services for any reason, as determined by Company in its sole and absolute discretion, including but not limited to the following: (i) to correct mistakes made by Company in offering or delivering any Service; (ii) to protect the integrity and stability of, and correct mistakes made by, any affiliate or vendor of Company; (iii) to assist with Company fraud and abuse detection and prevention efforts; (iv) to comply with court orders against Customer or User; (v) to comply with requests of law enforcement, including subpoena requests; (vi) to comply with any dispute resolution process; (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit; (viii) to avoid any civil or criminal liability on the part of Company, its officers, directors, employees and agents, as well as Company’s affiliates, including, but not limited to, instances where Customer has sued or threatened to sue Company; or (ix) to respond to complaints related in any way to an Account or Customer Content that could result in damage to Company’s business, operations or reputation.
  20. No Spam; Liquidated Damages
    1. Company does not tolerate the transmission of unsolicited commercial email, unsolicited bulk email or unsolicited facsimiles, which is email or facsimile sent to recipients as an advertisement or otherwise, without first obtaining prior confirmed consent to receive these communications (collectively, “Spam”). Spam can also include, but is not limited to, the following: email messages; newsgroup postings; Windows or Mac system messages; pop-up messages (aka “adware” or “spyware” messages); instant messages; online chat room advertisements; guestbook or website forum postings; facsimile solicitations or text/SMS messages.
    2. Nothing in this Agreement is intended to grant any right to transmit or send email to, or through, Company’s network. Email sent, or caused to be sent, to or through Company’s network may not (i) use or contain invalid or forged headers, (ii) contain invalid or non-existent domain names, (iii) employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path, (iv) use other means of deceptive addressing, (v) use a third party’s internet domain name, or be relayed from or through a third party’s equipment, without permission of the third party, (vi) or contain false or misleading information in the subject line or otherwise contain false or misleading content.
    3. Company monitors all traffic to and from Company web servers for indications of Spamming and maintain a Spam abuse complaint center to register allegations of Spam abuse. Customers suspected to be using Company products and services for the purpose of sending Spam are fully investigated. If Company determines there is a problem with Spam, Company will take the appropriate action to resolve the situation.
    4. Company does not authorize the harvesting, mining or collection of e-mail addresses or other information from or through Company’s network. Company does not permit or authorize others to use Company’s network to collect, compile or obtain any information about its customers or subscribers, including but not limited to subscriber e-mail addresses, which are Company’s confidential and proprietary information. Use of Company’s network is also subject to this Agreement, Company’s Acceptable Use Policy, Policy Statement, and other notices contain in the Legal section of Company’s website(s).
    5. Company will not allow Company servers and services to be used for the purposes described above. In order to use Company products and services, Customer must not only abide by all applicable laws and regulations, which include the Can-Spam Act of 2003 and the Telephone Consumer Protection Act, but Customer must also abide by these No Spam terms and conditions. Commercial advertising and/or bulk emails or faxes may only be sent to recipients who have “opted-in” to receive messages. They must include, but not limited to, a legitimate return address and reply-to address, the sender’s physical address, and an opt-out method in the footer of the email or fax. Upon request by Company, conclusive proof of opt-in will be required for an email address or fax numbers.
    6. If Company determines the Account, Products, or Services in question are being used in association with Spam, Company may re-direct, suspend, or cancel any Account or other applicable Products or Services. In such event, at Company’s election, Company may require Customer to respond by email to Company stating that Customer will cease to send Spam and/or have Spam sent on Customer’s behalf and to require a non-refundable reactivation fee to be paid before the site, email boxes, and/or services are reactivated.
    7. Company encourages all customers and recipients of email generated from Company products and services to report suspected Spam. Suspected abuse can be reported to Company via the legal section of Company’s Website.
    8. Customer agrees that Company may immediately terminate (without notification) any Account which Company believes, in Company sole and absolute discretion, is transmitting or is otherwise connected with any Spam.
    9. In the event Spam is transmitted, Company reserves the right to suspend and/or cancel permanently any and all Services provided to Customer or a User without any notification. Customer acknowledges and understands that Spam will disrupt Company’s business. If a Customer is in violation of any term or condition of this Spam section, the Acceptable Use Policy, or the relevant terms related to Spam under this Agreement or uses of the Services to disrupt or, in the Company’s sole judgment, could disrupt the Company’s business operations, the Company reserves the right to charge such Customer an administrative fee equal to $16,000.00 USD (as per the US CAN-SPAM ACT of 2003 or US FTC rules and regulations) for each piece of Spam transmitted from or otherwise connected with Customer’s Account.
    10. Unauthorized use of Company’s network in connection with the transmission of Spam may result in civil and criminal penalties against the sender and those assisting the sender.
    11. Customers are prohibited from maintaining open email relays. Any claim of ignorance or lack of knowledge of the presence or operation of an open email relay is not and will not be considered an acceptable excuse for such conduct.
    12. Customers are prohibited from providing hosting services for websites that have been included in Spam.
  21. Domain Name Dispute Claims. Please refer to the Uniform Domain Name Dispute Resolution Policy (the “UDRP”) for a concern or dispute concerning a domain name, located at http://www.icann.org/udrp/udrp.htm.
  22. Network Security and Mandatory Updates. If Customer or the Account is the initiator or target of a denial of service attack that adversely affects Company’s or a third party’s network, Company will terminate Customer’s account without warning and Customer will be held responsible for any charges that may result from this action. Activities that attract denial of service attacks are expressly prohibited. Customers involved in these activities will be immediately terminated upon Company’s knowledge of such actions. These activities include, but are not limited to the selling of shell accounts, and involvement with file sharing, internet relay chat or similar conduct of any kind. This prohibition is for the protection of our customer base as a whole; these kinds of services tend to attract attacks that have the potential to degrade service for all of our customers. Company will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate systems or network security may incur criminal or civil liability. Company reserves the right to charge up to $500.00 USD per complaint to investigate. From time-to-time, Company notifies customers of any exploit Company deem potentially catastrophic. For an exploit to be considered catastrophic, it must be attacking widely deployed applications that are in use on a majority of servers. For example, but not limited to, software related to DNS, APACHE, and SENDMAIL. The security notification will be sent via Company’s customer subscribed mailing list, with a subject line of “Mandatory Security Update.” It will provide a synopsis of the exploit, what is effected, and probable repercussions associated with failure to update. In addition, the email will provide a link for customers to download updated software or fixes, or patches, and directions on installing it. Customers are responsible for following the instructions in all ” Mandatory Security Update” within 24 hours from their release. To ensure the security of the Account and to maintain Company’s network integrity, if 24 hours past notification the software at issue has not been updated or patched, Company reserves the right to apply all necessary updates, fixes any other obvious security holes Company may find, and bill the Customer’s Account at Customer’s then applicable hourly support rate without further notice or Customer approval. Customers are responsible for maintaining their contact information in the Account such that Customer’s email address is always reachable even in the event of their Account being shut down.
  23. Trademark and/or Copyright Claims. Company supports the protection of intellectual property. If Customer would like to submit (i) a trademark claim for violation of a mark on which Customer holds a valid, registered trademark or service mark, or (ii) a copyright claim for material on which Customer hold a bona fide copyright, please refer to Company’s Trademark and/or Copyright Infringement Policy referenced above and available on the Company’s Website.
  24. Links To Third-Party Websites. Customer Site and the Services may contain links to third-party websites that are not owned or controlled by Company. Company assumes no responsibility for the content, terms, and conditions, privacy policies, or practices of any third-party websites. In addition, Company does not censor or edit the content of any third-party websites. By using Customer Site or the Services, Customer expressly releases Company from any and all liability arising from Customer use of any third-party website. Accordingly, Company encourages Customer to be aware when Customer leaves Company Site or the Services to review the terms and conditions, privacy policies, and other governing documents of each other website that Customer may visit.
  25. Disclaimer of Warranty. Customer agrees to use all Services and any information obtained through or from Company, at Customer’s own risk. Customer acknowledges and agrees that Company exercises no control over, and accepts no responsibility for, the content of the information passing through Company’s host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF COMPANY, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN “COMPANY PERSON”) MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT COMPANY PROVIDES. NO COMPANY PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. COMPANY IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S CUSTOMERS VIA THE SERVICES PROVIDED BY COMPANY. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY COMPANY PERSON, WILL CREATE A WARRANTY; NOR MAY CUSTOMER RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
  26. Limited Warranty.
    1. Company represents and warrants to Customer that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Company generally to its other customers for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Company, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and Company’s sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly service fees prorated by the number of hours in which the Services have been interrupted. Company may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
    2. The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of Company’s reasonable control; (b) that resulted from any actions or inactions of Customer or any third parties; or (c) that resulted from Customer’s equipment or any third-party equipment not within the sole control of Company. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
  27. Limitation of Liability.
    1. IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
    2. COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
    3. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
    4. The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 28shall not apply to Customer’s indemnification obligations.
    5. Notwithstanding anything to the contrary in this Agreement, Company’s maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose, or $5,000, whichever is less.
    6. Customer understands, acknowledges and agrees that if Company takes any corrective action under this Agreement because of an action of Customer or one of its customers or a reseller, that corrective action may adversely affect other customers of Customer or other reseller customers, and Customer agrees that Company shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Company.
    7. This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with. The terms of this section shall survive any termination of this Agreement.
  28. Indemnification. Customer agrees to indemnify, defend and hold harmless Company and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys, consultants, and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer’s use of the Services, (ii) any violation by Customer of the AUP, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
  29. Compliance with Local Laws. Company makes no representation or warranty that the content available on Company Site or the Services are appropriate in every country or jurisdiction, and access to Company Site or the Services from countries or jurisdictions where its content is illegal is prohibited. Customers or Users who choose to access Company Site or the Services are responsible for compliance with all local laws, rules, and regulations.
  30. Translation. This Agreement is written in English (USA). Company may, but is not obligated to, translate the terms into other languages. In the event of a conflict between a translated version of this Agreement and the English version, the English version will control.
  31. General Terms.
    1. Independent Contractor. Company and Customer are independent contractors and nothing contained in this Agreement places Company and Customer in the relationship of principal and agent, master and servant, partners, or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party or to obligate or bind the other party in any manner whatsoever.
    2. Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN A STATE OR FEDERAL COURT LOCATED IN LOS ANGELES COUNTY, CALIFORNIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
    3. Jurisdiction and Disputes.
      1. This Agreement shall be governed in accordance with the laws of the State of California.
      2. Customer acknowledges and agree that this Agreement is deemed to be entered into in California, regardless of the location of Customer.
      3. Prior to the filing of any claim or lawsuit with respect to any dispute arising under this Agreement (other than a suit seeking injunctive relief as provided hereunder), the aggrieved party will request in writing the other party’s involvement in the negotiation of an amicable resolution. The parties will use their best efforts in good faith to arrange written communications, personal meetings and/or telephone conferences as needed and mutually convenient to the management personnel involved within thirty (30) days following the request for dispute resolution negotiations (the “Negotiation Period”), and no lawsuit will be commenced with respect to the dispute during such Negotiation Period. In the event pre-litigation negotiations are unsuccessful in the Negotiation Period, any dispute between the parties concerning the terms of this Agreement or performance under this Agreement shall be submitted and resolved by civil litigation in the state court of the State of California, Los Angeles County, Stanley Mosk Courthouse located 111 N. Hill Street, Los Angeles, California, 90012, USA (http://www.lacourt.org/courthouse/info/la). The parties hereto consent to the jurisdiction of such state courts, agree to accept service of process by US mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
      4. Class Action Waiver. Customer agrees may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both you and InMotion specifically agree in writing to do so. Neither you, nor any other Member of InMotion and/or user of InMotion services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding
    4. Headings. The headings herein are for convenience only and are not part of this Agreement.
    5. Entire Agreement; Amendments. This Agreement, including agreements, policies, and documents incorporated herein by reference, supersedes all prior discussions, negotiations, and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement, any Order Form, any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by an authorized representative of Customer and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company’s Website.
    6. Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
    7. Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via electronic mail to the Customer’s electronic mail address as maintained in Company’s billing records.
    8. Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
    9. Assignment; Successors. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
    10. Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
    11. Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Company’s records of such execution shall be presumed accurate unless proven otherwise.
    12. Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
    13. No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that InMotion Hosting, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
    14. Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
    15. U.S. Export Laws. Company Site and the Services are subject to the export laws, restrictions, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). Customer and Users shall not use the Services to collect, store or transmit any technical information or data that is controlled under U.S. Export Laws. Users shall not export or re-export or allow the export or re-export of, the Services found at this Site in violation of any U.S. Export Laws. None of the Services may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws. By using Company Site and the Services, Customer agrees to the foregoing and represents and warrants that Customer is not a national or resident of, located in, or under the control of, any restricted country; and Customer is not on any denied parties list; and Customer agrees to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If Customer accesses Company Site or the Services from other countries or jurisdictions, Customer does so on Customer own initiative and Customer is responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, Customer shall not access Company Site or the Services. The obligations under this section shall survive any termination or expiration of this Agreement or Customer use of Customer Site or the Services.
    16. Marketing. Customer agrees that during the term of this Agreement Company may publicly refer to Customer, orally and in writing, as a customer of Company. Any other public reference to Customer by Company requires the written consent of Customer.

If Customer has any questions about this Agreement, please contact Company by email or regular mail at the following address:

INMOTION HOSTING, INC.
Attn: Legal Department
360 N. Pacific Coast Highway, Suite 1055
El Segundo, CA 90245
legal@inmotionhosting.com