Terms of Hosting Service
(Version 1.0 - Last updated October 1, 2001)
- Order, Acceptance and
Service.
- When Accepted by IT Technovations,
the Order submitted by Customer creates a contract between Customer and
IT Technovations, consisting of the Order, the applicable Service Description
and these Terms of Service. An Order is "Accepted" by IT Technovations
when (i) with respect to Orders submitted online, IT Technovations provisions
Services in response to the Order or bills Customer for payment and (ii)
with respect to Orders reduced to writing and signed on an approved IT Technovations
form, when an authorized representative of IT Technovations executes and
delivers such form signed by Customer.
- IT Technovations will
provide, and Customer will purchase and pay for, the Services specified
in the Order for the service fees specified in the Order and the applicable
Service Description (the "Service Fees").
- In connection with any
Hosting Services, if the operating system for any server hosting the Customer
Web site is a Microsoft software product or if Customer otherwise uses any
Microsoft software products made available or distributed by IT Technovations
in connection with the Services, Customer agrees to comply with the terms
and conditions set forth in Addendum A.
- In connection with any
Hosting Services, Customer will not use storage space in excess of the storage
limits established for the Services in the Service Descriptions, plus any
storage space purchased by Customer. If Customer uses storage space in excess
of such amounts, IT Technovations may, without limiting its other rights
or remedies, assess Customer with additional fees.
- In connection with any
Hosting Services, if Customer’s actual bandwidth usage in any month exceeds
the limit in the Service Description, Customer will pay IT Technovations
such additional fees as may be specified in the Service Description.
- Fees, Taxes and Payment. Customer will pay to
IT Technovations the Service Fees in the manner set forth in the Order. IT
Technovations may increase the Service Fees (i) in the manner permitted in
the Service Description and (ii) at any time on or after expiration of the
Initial Term by providing ten (10) days prior written notice thereof to Customer.
The 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 IT Technovations’s
net income). All such taxes will be added to IT Technovations’s invoices for
the Service Fees as separate charges to be paid by Customer. All fees are
fully earned when due and non-refundable when paid. Unless otherwise specified,
invoices for the Service Fees and related charges shall be due and payable
within 30 days after the date of the invoice. Any amounts payable to IT Technovations
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. If IT Technovations collects any payment due at law or through an
attorney at law or under advice there from or through a collection agency,
Customer will pay all costs of collection, including, without limitation,
all court costs and reasonable attorneys’ fees. If any check is returned for
insufficient funds, IT Technovations may impose a processing charge of $30.
- Term and Termination.
- Hosting Services will
commence on the Effective Date indicated in the Order and continue for the
duration of the Initial Term. Thereafter, the Order will automatically renew
for successive periods (i) of twelve months (with respect to Non-Prepaid
Plans) or (ii) as specified in the Service Description (with respect to
Prepaid Plans) unless the Order is earlier terminated in accordance with
its terms, or either party gives written notice to the other party of non-renewal
at least 30 days prior to expiration of the then-current term.
- Either party may terminate
this Agreement immediately upon the occurrence of any one or more of the
following events: (i) the other party fails to pay when due any amounts
required to be paid under this Agreement; (ii) the other party breaches
any material term or provision of this Agreement (other than a breach described
in subsection (i) above), and if capable of cure, such breach remains uncured
30 days after the non-breaching party gives written notice thereof to the
breaching party; or (iii) the other party becomes insolvent, makes an assignment
for the benefit of its creditors, institutes or becomes subject to any proceeding
under any bankruptcy or similar laws for the relief of debtors, or seeks
the appointment of, or becomes subject to the appoint of, any trustee or
receiver for all or any portion of such party’s assets.
- IT Technovations may
terminate this Agreement (i) if the Services are prohibited by applicable
law, or become impractical or unfeasible for any technical, legal or regulatory
reason, by giving Customer as much prior notice as reasonably practicable
or (ii) immediately by giving written notice to Customer, if IT Technovations
determines in good faith that Customer’s use of the Customer Web site or
the Customer Content violates the Acceptable Use Policy.
- 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 3(d), 4, 8, 10, 11, 13 and
14 of this Agreement shall survive the expiration or termination of
this Agreement 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 IT Technovations
may be entitled.
- With respect to Non-Prepaid
Plans, within 30 days after the termination of this Agreement, Customer
will pay the Termination Charge to IT Technovations unless (i) IT Technovations
terminated the Order under Section 3(c) or (ii) Customer terminated
the Order under Section 3(b). With respect to Prepaid Plans, Customer
will pay the Termination Charge as provided in the Service Description.
The parties agree that the Termination Charge constitutes consideration
for IT Technovations’s time, effort and expense in preparing and reserving
the capacity to perform its obligations hereunder, as actual damages are
difficult to ascertain. If Customer terminates the Order in accordance with
Section 3(b), or if IT Technovations terminates the Order under
Sections 3(c)(i) or 12(c), IT Technovations shall return to Customer,
and Customer shall accept, as Customer’s sole and exclusive remedy for IT
Technovations’s breach of the Order, any Service Fees paid in advance by
Customer hereunder attributable to Services not yet rendered as of the date
of termination.
- Customer’s Representations
and Warranties. Customer hereby represents and warrants to IT Technovations, and
agrees that during the Term Customer will ensure that: 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 IT Technovations to pay any fees, residuals, guild
payments or other compensation of any kind to any Person; 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; Customer will comply with
all applicable laws, rules and regulations regarding the Customer Content
and the Customer Web site and will use the Customer Web site only for lawful
purposes; and 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.
- License to IT Technovations. Customer hereby grants to IT Technovations a non-exclusive, royalty-free,
worldwide right and license during the Term to do the following to the extent
necessary in the performance of Services under the Order: 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; and make archival
or back-up copies of the Customer Content and the Customer Web site). Except
for the rights expressly granted above, IT Technovations is not acquiring
any right, title or interest in or to the Customer Content, all of which shall
remain solely with Customer.
- IT Technovations’s
Acceptable Use Policy. Customer will abide by, and utilize the Services and the Customer
Web site only in accordance with, the Acceptable Use Policy (the "Acceptable
Use Policy") that IT Technovations posts on its Web site, as such
IT Technovations may change Acceptable Use Policy from time to time. The Acceptable
Use Policy is hereby incorporated herein and made a part hereof by this reference.
Customer shall impose the Acceptable Use Policy on its customers and End Users
to the extent necessary to ensure their compliance. Customer shall familiarize
itself with the Acceptable Use Policy and periodically access IT Technovations’s
Web site to determine if IT Technovations has made any changes thereto.
- Customer’s Responsibilities.
- Customer is solely responsible
for the quality, performance and all other aspects of the Customer Content
and the goods or services provided through the Customer Web site.
- Customer will cooperate
fully with IT Technovations in connection with IT Technovations’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 IT Technovations’s
performance of its obligations that depend on Customer’s performance on
a day for day basis. Customer will notify IT Technovations of any change
in Customer’s mailing address, telephone, e-mail or other contact information.
- Customer assumes full
responsibility for providing End Users with any required disclosure or explanation
of the various features of the Customer Web site and any goods or services
described therein, as well as any rules, terms or conditions of use.
- Customer will provide
IT Technovations with a registered domain name for the Customer Web site,
or, upon Customer’s request and subject to the terms and conditions set
forth below, IT Technovations will register an Internet domain name on behalf
of Customer with a registrar approved by ICANN. IT Technovations’s registration
of any domain name is subject to (i) IT Technovations receiving from Customer
all information needed from Customer in order to complete such registration,
and (ii) such domain name not being in violation of any applicable law,
rule or regulation or the policies of the applicable registration service.
Registration of a domain name is subject to availability of such domain
name for registration, and IT Technovations will not be responsible if a
domain name is not available for any reason. IT Technovations will also
not be responsible for any infringement of third-party rights caused by
its registration of a domain name for Customer. Customer waives any claims
it may have against IT Technovations for, and hereby releases IT Technovations
of and from, any loss, damage, liability or expense arising out of, or relating
to, the registration of such domain name in any online or offline network
directories, membership lists or registration lists, or the release of the
domain name from such directories or lists following the termination of
services by IT Technovations for any reason. Customer will reimburse IT
Technovations for all costs and expenses incurred by IT Technovations in
registering or maintaining a domain name for Customer, including, without
limitation, all fees charged by the applicable registrar. Customer acknowledges
that its rights to any domain name registered by IT Technovations are not
being granted by IT Technovations but are subject to the rules and regulations
of the applicable registrar and applicable law. Customer agrees to be bound
by the terms and policies of the applicable registrar and the policies of
the national DNS registration authorities to which Customer becomes subject
upon registration of the domain name. Customer’s inability to use a domain
name shall not entitle Customer to a refund by IT Technovations of any fees
paid with respect to the registration of such unusable domain name. The
domain name for the Customer Web site shall be the property of Customer.
- Because the Hosting Services
permit Customer to electronically transmit or upload content directly to
the Customer Web site, Customer shall be fully responsible for uploading
all content to the Customer Web site and supplementing, modifying and updating
the Customer Web site. Customer is also responsible for ensuring that the
Customer Content and all aspects of the Customer Web site are compatible
with the hardware and software used by IT Technovations to provide the Hosting
Services, as the same may be changed by IT Technovations from time to time.
Specifications for the hardware and software used by IT Technovations to
provide the Hosting Services will be available on IT Technovations’s Web
site. Customer shall periodically access IT Technovations’s Web site to
determine if IT Technovations has made any changes thereto. IT Technovations
shall not be responsible for any damages to the Customer Content, the Customer
Web site or other damages or any malfunctions or service interruptions caused
by any failure of the Customer Content or any aspect of the Customer Web
site to be compatible with the hardware and software used by IT Technovations
to provide the Hosting Services.
- Unless the applicable
Service Description provides otherwise, Customer is solely responsible for
making back-up copies of the Customer Web site and Customer Content.
- IT Technovations Intellectual
Property.
- IT Technovations hereby
grants to Customer a non-exclusive, non-transferable, royalty-free license,
exercisable solely during the term of this Agreement, to use applicable
IT Technovations Technology solely for the purpose of accessing and using
the Services. Customer may not use the IT Technovations Technology for any
purpose other than accessing and using the Services. Except for the rights
expressly granted above, this Agreement does not transfer from IT Technovations
to Customer any IT Technovations Technology, and all rights, titles and
interests in and to the IT Technovations Technology shall remain solely
with IT Technovations. 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 IT Technovations Technology.
- IT Technovations’s trademarks,
trade names, service marks, logos, other names and marks, and related product
and service names, design marks and slogans are the sole and exclusive property
of IT Technovations. Customer may not use any of the foregoing in any advertising,
publicity or in any other commercial manner without the prior written consent
of IT Technovations. IT Technovations shall maintain and control ownership
of all Internet protocol numbers and addresses that may be assigned by IT
Technovations to Customer. IT Technovations may, in its sole discretion,
change or remove any and all such Internet protocol numbers and addresses.
- Any feedback, data, answers,
questions, comments, suggestions, ideas or the like which Customer sends
to IT Technovations relating to the Services will be treated as being non-confidential
and non-proprietary. IT Technovations may use, disclose or publish any ideas,
concepts, know-how or techniques contained in such information for any purpose
whatsoever.
- Limited Warranty.
- IT Technovations represents
and warrants to Customer that the Services will be performed (i) in a manner
consistent with industry standards reasonably applicable to the performance
thereof; (ii) at least at the same level of service as provided by IT Technovations
generally to its other customers for the same services; and (iii) in compliance
in all material respects with the applicable Service Descriptions. Customer
will be deemed to have accepted such Services unless Customer notifies IT
Technovations within 30 days after performance of any Services of any breach
of the foregoing warranties. Customer’s sole and exclusive remedy, and IT
Technovations’s sole obligation, for breach of the foregoing warranties
shall be for IT Technovations, 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 pro rated
by the number of hours in which the Services have been interrupted.
- The foregoing warranties
shall not apply to performance issues or defects in the Services (i) caused
by factors outside of IT Technovations’s reasonable control; (ii) that resulted
from any actions or inactions of Customer or any third parties; or (iii)
that resulted from Customer’s equipment or any third-party equipment not
within the sole control of IT Technovations.
- EXCEPT AS EXPRESSLY
PROVIDED IN THIS SECTION 9, IT TECHNOVATIONS 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 IT TECHNOVATIONS 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. IT TECHNOVATIONS DOES NOT WARRANT THAT
THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
- Limitation of Liability.
- IN NO EVENT WILL IT
TECHNOVATIONS’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 IT TECHNOVATIONS BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY
PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- IT TECHNOVATIONS CANNOT
GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY
OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET.
IT TECHNOVATIONS 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.
- 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 (EXCEPT AS PROVIDED
IN SECTIONS 11 AND 12) 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.
- The limitations contained
in this Section 10 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 10(c) shall not apply to liability
arising on account of a party’s breach of Section 13 or to Customer’s
indemnification obligations under Section 11.
- Indemnification of
IT Technovations. Customer shall defend, indemnify and hold harmless IT Technovations,
its affiliates and their respective present, former and future officers, directors,
employees and agents, and their respective heirs, legal representatives, successors
and assigns (collectively the "IT Technovations Indemnitees"),
from and against any and all losses, damages, costs, liabilities and expenses
(including, without limitation, amounts paid in settlement and reasonable
attorneys’ fees) which any of the IT Technovations Indemnities may suffer,
incur or sustain resulting from or arising out of (i) Customer’s breach of
any representation, warranty, or covenant contained in the Agreement, (ii)
the Customer Content, the Customer Web site or any End User’s use of the Customer
Content or the Customer Web site, (iii) violation by Customer or any of its
officers, directors, employees or agents of the Acceptable Use Policy or any
applicable law, (iv) claims or actions of third parties alleging misappropriation
of trade secrets or infringement of patents, copyrights, trademarks or other
intellectual property rights arising from the use, display or publication
of Customer’s domain names, the Customer Web site, the Customer Content, or
the use of the Services in combination with hardware, software or content
not provided by IT Technovations, (v) claims or actions by third parties relating
to or arising out of Customer’s use of the Services, and (vi) any failure
of the Customer Content or any aspect of the Customer Web site to be compatible
with the hardware or software used by IT Technovations to provide the Services,
including any damage to IT Technovations’s servers or other hardware caused
thereby.
- Indemnification of
Customer.
- Subject to Section 10,
IT Technovations shall, at its own expense, indemnify, defend and hold Customer
harmless from any claim or suit alleging that the Services infringe any
United States patent, copyright or trademark existing on the Effective Date,
or that IT Technovations has knowingly misappropriated any trade secret
or other intellectual property right of any other Person, including any
losses, damages or expenses arising from any such claim or suit. Customer
agrees to cooperate with and assist IT Technovations in the defense or settlement
of any such claim or suit. Customer shall be reimbursed for all reasonable
out-of-pocket expenses incurred in providing any cooperation or assistance
requested by IT Technovations, but IT Technovations will not be liable for
any costs or expenses incurred without its prior written authorization.
- Promptly after receipt
by Customer of a threat of any claim or suit, or a notice of the commencement
or filing of any claim or suit, against which Customer may be indemnified
hereunder, Customer shall give written notice thereof to IT Technovations,
provided that failure to give or delay in giving such notice to IT Technovations
shall not relieve IT Technovations of any liability it may have to Customer
hereunder, except to the extent that the defense of such claim or suit is
prejudiced thereby. IT Technovations shall have sole control of the defense,
and of all negotiations for settlement, of such claim or suit. Subject to
the foregoing, Customer may participate in the defense of any such claim
or suit at Customer’s own expense.
- If an injunction, decree
or judgment is, or IT Technovations believes in its sole discretion is likely
to be, entered providing that Customer may not use the Services as contemplated
in this Agreement without violating the intellectual property rights of
a third party, IT Technovations may, at its sole option and expense, either
(i) procure for Customer the right to use the Services or affected part
thereof as provided in this Agreement; (ii) replace the Services or affected
part thereof with other non-infringing services or modify the Services or
affected part thereof so as to be non-infringing; or (iii) terminate this
Agreement upon written notice to Customer.
- Notwithstanding Section
12(a), IT Technovations assumes no liability for infringement claims
arising from (i) use of the Services with third-party products or services
where the third-party products or services cause the infringement, (ii)
any modification of the Services not authorized by IT Technovations in writing,
(iii) the Customer Content, the Customer Web site or any content, data or
information provided or supplied by an End User, or (iv) Customer’s use
of any third-party software provided hereunder. THE FOREGOING DEFENSE
AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION
OF IT TECHNOVATIONS, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT
TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT
BY THE SERVICES PROVIDED HEREUNDER.
- Confidentiality; Non-Solicitation.
- Each party will not,
without the prior written consent of the other party, use or disclose to
any Person any Proprietary Information of the other party disclosed or made
available to it, except for use of such Proprietary Information as required
in connection with the performance of its obligations or use of the Services
hereunder. Subject to Section 13(b), each party will (i) treat the
Proprietary Information of the other party as secret and confidential, (ii)
limit access to the Proprietary Information of the party to those of its
employees who require it in order to effectuate the purposes of this Agreement,
and (iii) not disclose the Proprietary Information of the other party to
any other Person without the prior written consent of the other party.
- Notwithstanding Section
13(a), the following shall not be considered Proprietary Information:
(i) any information that the receiving party can demonstrate by written
documentation was within its legitimate possession prior to the time of
disclosure by the disclosing party; (ii) any information that was in the
public domain prior to disclosure by the disclosing party as evidenced by
documents that were published prior to such disclosure; (iii) any information
that, after disclosure by the disclosing party, comes into the public domain
through no fault of the receiving party, (iv) any information that is disclosed
to the receiving party without restriction by a third party who has legitimate
possession thereof and the legal right to make such disclosure; or (v) any
information that, two years after expiration or termination of this Agreement,
does not constitute a trade secret under applicable law.
- Each party acknowledges
that disclosure of any aspect of the Proprietary Information of the other
party shall immediately give rise to continuing irreparable injury to the
other party inadequately compensable in damages at law, and, without prejudice
to any other remedy available to the other party, shall entitle the other
party to injunctive or other equitable relief. Upon expiration or termination
of this Agreement for any reason, each party shall promptly return to the
other party all Proprietary Information of the other party (including all
copies thereof) in its possession or control.
- During the term of this
Agreement and for two years following expiration or termination of this
Agreement, Customer will not, directly or indirectly, solicit or recruit
the services of any employee of IT Technovations performing services under
this Agreement, while such employee is employed by IT Technovations and
for a period of six months after such employee has left the employment of
IT Technovations.
- Optional Services. In connection with any Optional Services:
- Customer must provide
IT Technovations with any information, login identifications, passwords
or other information or access to facilities that IT Technovations may reasonably
require to provide the Optional Services IT Technovations will have no responsibility
for any delays or increased costs or expenses associated with Customer’s
failure to provide any of such information. If Customer does not provide
any such information or access requested by IT Technovations within thirty
(30) days of IT Technovations’s request therefore, IT Technovations may
terminate the Order and retain any Service Fees paid.
- If Customer requested
that IT Technovations perform the Optional Services by a particular deadline
or that IT Technovations achieve some particular result or outcome, IT Technovations
will use commercially reasonable best efforts to perform the Services by
any such deadline and achieve the result requested by Customer; provided,
however, that (i) IT Technovations’s ability to perform the Services is
subject to Customer’s provision of information and access as provided above
and (ii) IT Technovations has no liability or obligation to complete the
Services by any deadline or achieve any particular outcome of result.
- If Customer wishes to
convey documents or files to IT Technovations, Customer should deliver to
IT Technovations a copy or duplicate of such documents or files and not
the original copy. IT Technovations will not return to Customer any documents
or files conveyed to IT Technovations.
- Miscellaneous.
- Independent Contractor. IT Technovations and Customer are independent
contractors and nothing contained in this Agreement places IT Technovations
and Customer in the relationship of principal and agent, master and servant,
partners or joint ventures. 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.
- Governing Law; Jurisdiction. The validity and effect
of this Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Georgia, without regard to its conflicts of
laws principles. 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 GEORGIA STATE OR FEDERAL
COURT LOCATED IN FULTON COUNTY, GEORGIA, 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.
- Headings. The headings herein are for convenience only
and are not part of this Agreement.
- Entire Agreement;
Amendments. This Agreement, including
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 and any purchase order, service order,
work order, confirmation, correspondence or other communication of Customer
or IT Technovations, the terms and conditions of this Agreement shall control.
No additional terms or conditions relating to the subject matter of this
Agreement shall be effective unless approved in writing by any authorized
representative of Customer and IT Technovations. 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 IT Technovations in its sole discretion, which
modifications will be effective upon posting to IT Technovations's Web site.
- 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.
- 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. Shared Customers may give, and be given, notice
by electronic means in certain circumstances as provided in the Service
Description.
- 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.
- Assignment; Successors. Customer may not assign or transfer this Agreement,
or any of its rights or obligations hereunder, without the prior written
consent of IT Technovations. Any attempted assignment in violation of the
foregoing provision shall be null and void and of no force or effect whatsoever.
IT Technovations 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.
- 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.
- 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, IT Technovations’s
records of such execution shall be presumed accurate unless proven otherwise.
- 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, 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.
- 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 Microsoft, 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. Without limiting the foregoing, MSLI, GP, a wholly-owned
subsidiary of Microsoft Corporation, is an intended third-party beneficiary
of the terms and conditions set forth in Addendum A with the right to enforce
those provisions as provided in the preceding sentence.
- 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.
- Marketing. Customer agrees that during the term of this
Agreement IT Technovations may publicly refer to Customer, orally and in
writing, as a customer of IT Technovations. Any other public reference to
Customer by IT Technovations requires the written consent of Customer.
- Definitions. For purposes of this
Agreement, the following terms have the meanings specified below:
- "Agreement" means each contract
created between IT Technovations and Customer for the provision of Services
consisting of an Order, the applicable Service Description and these Terms
of Service.
- "Customer Content" means all data, graphics, text, names, marks, logos, hypertext
links to other Web sites and other information incorporated in, transmitted
through or published or displayed on the Customer Web site.
- "Customer Web site" means Customer’s site on the World Wide Web portion of the
Internet that IT Technovations hosts under this Agreement.
- "End User" means any Person who accesses or uses the Customer Web site via
the Internet.
- "IT Technovations Technology" means IT Technovations’s proprietary technology,
including, without limitation, IT Technovations services, software tools,
hardware designs, algorithms, software (in source code and object code forms),
user interface designs, architecture, class libraries, objects and documentation
(both printed and electronic), network designs, know-how, trade secrets
and any related intellectual property rights throughout the world (whether
owned by IT Technovations or licensed to IT Technovations from a third party),
and also including any derivatives, improvements, enhancements, updates,
modifications or extensions of IT Technovations Technology conceived, reduced
to practice or developed during the term of this Agreement by either party.
- "Person" means any individual,
partnership, joint venture, corporation, limited liability company, trust,
unincorporated association or organization, or government or any agency
or political subdivision thereof.
- "Proprietary Information" means all technical, business and other information of a
party (i) that is not generally known to the public, (ii) that derives value,
economic or otherwise, from not being generally known to the public or to
other Persons who can obtain value from its disclosure or use, and (iii)
which information is subject to efforts that are reasonable under the circumstances
to maintain the secrecy thereof.
- "Order" means the Order
submitted by the Customer to IT Technovations for Services, whether such
Order is submitted online through IT Technovations’s Web site or on a written
Order form.
- "Prepaid Plan"
means Hosting Service provided by IT Technovations to Customer where the
Order provides that the Customer must pay for the Hosting Service in advance
for the Initial Term. "Non-Prepaid Plan" means any Hosting Service
provided by IT Technovations to Customer that is not a Prepaid Plan.
- "Termination Charge" means, with respect to Non-Prepaid Customers only, as of any date
of calculation, an amount equal to one hundred percent (100%) of the fees
that would become due over the balance of the then-current Term.
- "Terms of Service" means these Terms of Service, as the same may be modified,
altered or amended from time to time by IT Technovations.
- "Service" means either Hosting
Service or Optional Service. "Hosting Service" means the Service
provided by IT Technovations in response to an Order whereby IT Technovations
provides the Customer with specified connectivity, storage space and bandwidth
for the hosting of a Customer Web site as more particularly described in
the applicable Service Description. "Optional Service" means any
additional Service (other than Hosting Service) IT Technovations may provide
in response to an Order, as more particularly described in the applicable
Service Description.
- "Service Description" means the applicable documents made available by IT Technovations
to Customer to describe the applicable Services at the time the Order is
accepted by IT Technovations.
- "Term" means the duration
of any Agreement between IT Technovations and Customer. With respect to
Hosting Services, the "Initial Term" is the initial term specified in the Order and the "Renewal Term" is the period
of time beginning on the expiration of the Initial Term and ending on the
termination of expiration of the Order in accordance with its terms. With
respect to Optional Services, the "Term" begins when IT Technovations
accepts the Order and ends on the first to occur of (i) IT Technovations’s
completion of performance, or (ii) the earlier termination of the Order
in any manner permitted by these Terms of Service.
ADDENDUM
A
USE
OF MICROSOFT SOFTWARE PRODUCTS
This
document ("License") concerns your use of certain Microsoft software
products provided to you as a service by IT Technovations, which includes computer
software and may include associated media, printed materials, and "online"
or electronic documentation (collectively "Software Products").
IT
Technovations does not own the Software Products and the use thereof is subject
to certain rights and limitations of which you need to be informed. Your right
to use the Software Products as a service is pursuant to your agreement with
IT Technovations and is subject to your understanding of and compliance with
the following terms.
- DEFINITIONS.
"Client Software" means software
that allows a Device to access or utilize the services or functionality provided
by the Server Software.
"Device" means each of a computer,
workstation, terminal, handheld PC, pager, telephone, "smart phone,"
or other electronic device.
"Server Software" means software
that provides services or functionality on a computer acting as a server.
"Other Software" means the software
described in Paragraph 14 ("Other Rights and Limitations") below.
- OWNERSHIP OF SOFTWARE
PRODUCTS. The Software Products
are licensed to IT Technovations from MSLI, GP ("Microsoft"), a
Nevada general partnership and a wholly-owned subsidiary of Microsoft Corporation.
All title and intellectual property rights in and to the Software Products
(including but not limited to any images, photographs, animations, video,
audio, music, text and "applets" incorporated into the Software
Products) are owned by Microsoft or its suppliers. All title and intellectual
property rights in and to the content that may be accessed through use of
the Software Products are the property of the respective content owner and
may be protected by applicable copyright or other intellectual property laws
and treaties. Nothing herein grants you any rights to use such content.
- USE OF SOFTWARE PRODUCTS. You may only use the Software Products in accordance
with the instructions, and in connection with the application services, provided
to you by IT Technovations. You are only authorized to remotely access the
functionality of the Software Products except for certain Client Software
and Other Software that may be installed on your Devices as expressly authorized
by IT Technovations. Other than such Client Software and Other Software, you
may not install any other components of the Software Products on your Devices.
Microsoft may add new Software Products or reasonably modify the use rights
with respect to existing Software Products. You will be provided notice of
such changes by email or by posting of the changes on IT Technovations’s Web
site. Your use of any new Software Products will be subject to the terms and
conditions of this License. Your use of an existing Software Product whose
use rights are modified after IT Technovations has provided notice of the
modifications constitutes your acceptance of such modifications.
- COPIES. You may not make any copies of the Software Products;
provided, however, that you may install one (1) copy of certain client Software
on your Device as expressly authorized by IT Technovations; and you may install
copies of certain Other Software as described in Paragraph 14 (Other Rights
and Limitations) below. You must erase or destroy such Client Software and/or
the Other Software upon termination of your agreement with IT Technovations,
upon notice from IT Technovations or upon transfer of your Device to another
person or entity, whichever first occurs. You may not copy the printed materials
accompanying the Software Products.
- LIMITATIONS ON REVERSE
ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse-engineer,
decompile, or disassemble the Software Products, except and only to the extent
that such activity is expressly permitted by applicable law notwithstanding
this limitation.
- RENTAL. You may not rent, lease, or lend or directly
or indirectly transfer the Software Products to any third party.
- TERMINATION. Without prejudice to any other rights, IT Technovations
may terminate your rights to use the Software Products if you fail to comply
with these licensing terms. In addition, your rights to use the Software Products
will automatically terminate upon the termination for any reason whatsoever
of the agreement under which the Software Products are licensed to IT Technovations
from Microsoft (the "License Agreement"). Upon expiration of the
License Agreement, your rights to use the Software Products will terminate
on the earlier of (i) the expiration or termination of your agreement with
IT Technovations or (ii) three years from the date of expiration of the License
Agreement. Your rights to use any Software Product may be terminated if Microsoft
ceases licensing the Software Product to IT Technovations due to an intellectual
property infringement claim or in accordance with a court or other governmental
order. In any such event of termination, you must cease using and destroy
all copies of the Software Products and all of the component parts thereof.
- NO WARRANTIES, LIABILITIES
OR REMEDIES BY MICROSOFT. YOUR AGREEMENT IS WITH
IT TECHNOVATIONS AND ANY WARRANTIES, ASSUMPTION OF LIABIILITY FOR DAMAGES
AND REMEDIES, IF ANY, ARE PROVIDED BY IT TECHNOVATIONS AND NOT BY MICROSOFT.
- PRODUCT SUPPORT. Product support for the Software Products, if
any, is provided to you by IT Technovations and is not provided by Microsoft
or its affiliates or subsidiaries.
- NOT FAULT-TOLERANT. THE SOFTWARE PRODUCTS MAY CONTAIN TECHNOLOGY
THAT IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED
FOR USE OR RESALE IN ENVIRONMENTS OR APPLCIATIONS IN WHICH THE FAILURE OF
THE SOFTWARE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL
OR ENVIRONMENTAL DAMAGE.
- EXPORT RESTRICTIONS. You acknowledge that the Software Products are
of U.S. origin. You agree to comply with all applicable international and
national laws that apply to the Software Products, including the U.S. Export
Administration Regulations, as well as end-user, end-use and destination restrictions
issued by U.S. and other governments. For additional information, see http://www.Microsoft.com/exporting/.
- NOTE ON JAVA
SUPPORT. The Software Products may contain support for programs
written in Java. Java technology is not fault-tolerant and is not designed,
manufactured, or intended for use or resale as online control equipment in
hazardous environments requiring fail-safe performance, such as in the operation
of nuclear facilities, aircraft navigation or communication systems, air traffic
control, direct life support machines, or weapons systems, in which the failure
of Java technology could lead directly to death, personal injury, or severe
physical or environmental damage. Sun Microsystems, Inc. has contractually
obligated Microsoft to make this disclaimer.
- U.S. GOVERNMENT RIGHTS. All Software Products provided to the U.S. Government
pursuant to solicitations issued on or after December 1, 1995 is provided
with the commercial rights and restrictions described elsewhere herein. All
Software Product provided to the U.S. Government pursuant to solicitations
issued prior to December 1, 1995 is provided with RESTRICTED RIGHTS as provided
for in FAR, 48 CFR 52.227-14 (JUNE 1987) or FAR, 48 CFR 252.227-7013 (OCT
1988), as applicable.
- OTHER RIGHTS AND LIMITATIONS. For Commerce Server,
Host Integration Server and Internet Security and Acceleration Server – Use
of Redistributable Software ("SDK Software"). If included in the
Software Product, you may install and use copies of the SDK Software on one
or more computers located at your premises solely for the purpose of building
applications that work in conjunction with the Server Software ("Applications").
You may modify the Sample Code (identified in the "samples" directories)
to design, develop, and test your Applications, and may reproduce and use
the sample Code, as modified, on one or more computers located at your premises.
You may also reproduce and distribute the Sample Code, along with any modifications
you make thereto (for purposes of this section, "modifications"
shall mean enhancements to the functionality of the Sample Code), and any
other files that may be listed and identified in a REDIST.TXT file as "redistributable"
(collectively, the "Redistributable Code") provided that you agree:
(1) to distribute the Redistributable Code in object code form and only in
conjunction with your Application, which Application adds significant and
primary functionality to the Redistributable Code; (2) not to use Microsoft’s
name, logo, or trademarks to market the Application; (3) to include a valid
copyright notice in your name on the Application; (4) to indemnify, hold harmless,
and defend Microsoft from and against any claims or lawsuits, including attorney’s
fees, that arise or result from the use or distribution of the Application;
(5) to otherwise comply with the terms of this License; and (6) that Microsoft
reserves all rights not expressly granted.
For
Small Business Server – General (excluding Microsoft SQL Server). Note Regarding
Use of Redistributable Components.
You may modify, reproduce and/or distribute the files listed in the REDIST.TXT
file (collectively referred to as "Redistributable Components") provided
that you comply with the Modification and Distribution Terms listed in such
REDIST.TXT file.
For
Small Business Server – Microsoft SQL Server. Note Regarding the Use of Redistributable
Components.
You have the nonexclusive, royalty-free right to use, reproduce and distribute
the Microsoft SQL Server Desktop Engine ("MSDE") and the files listed
in the REDIST.TXT contained in the Software Product (collectively, the "Redistributable
Code"), provided that you also comply with the following:
i.
General Requirements. If you choose to redistribute any portion of the Redistributable
Code, you agree:
a.
to distribute the Redistributable Code in object code form and only in conjunction
with and as a part of a software application product developed by you that adds
significant and primary functionality to the Software Product ("Application");
b.
not to use Microsoft’s name, logo, or trademarks to market the Application;
c.
to include a valid copyright notice in your name on the Application;
d.
to indemnify, hold harmless, and defend Microsoft from and against any claims
or lawsuits, including attorney’s fees, that arise or result from the use of
distribution of the Application; and
e.
to otherwise comply with the terms of this License.
You also agree not to permit further distribution of
the Redistributable Code by your end users except you may permit further redistribution
of the Redistributable Code by your distributors if they only distribute the
Redistributable Code in conjunction with, and as part of, the Application and
you and your distributors comply with all other terms of this License.
ii.
Additional Requirements for MSDE. If you choose to redistribute MSDE, you also
agree:
a.
that your Application shall not substantially duplicate the capabilities
of Microsoft Access or, in the reasonable opinion of Microsoft, compete with
same; and
b.
that unless your Application requires your customers to license Microsoft Access
in order to operate, you shall not reproduce or use MSDE for commercial distribution
in conjunction with a general purpose word processing, spreadsheet or database
management software product, or an integrated work or product suite whose components
include a general purpose word processing, spreadsheet, or database management
software product except for the exclusive use of importing data to the various
formats supported by Microsoft Access. Note: A product that includes limited
word processing, spreadsheet or database components along with other components
which provide significant and primary value, such as an accounting product with
limited spreadsheet capability, is not considered to be a "general purpose"
product.
For
Microsoft SQL Server. Use of Redistributable Code. You have the nonexclusive, royalty-free
right to use, reproduce and distribute the Microsoft SQL Server Desktop Engine
("MSDE") and the files listed in the REDIST.TXT contained in the Software
Product (collectively, the "Redistributable Code"), provided that
you also comply with the following:
i.
General Requirements. If you choose to redistribute any portion of the Redistributable
Code, you agree:
- to distribute the Redistributable
Code in object code form and only in conjunction with and as a part of a
software application product developed by you that adds significant and
primary functionality to the Software Product ("Application");
- not to use Microsoft’s
name, logo, or trademarks to market the Application;
- to include a valid copyright
notice in your name on the Application.
- to indemnify, hold harmless,
and defend Microsoft from and against any claims or lawsuits, including
attorney’s fees, that arise or result from the use of a distribution of
the Application; and
- to otherwise comply with
the terms of this License.
You also agree not to permit further distribution
of the Redistributable Code by your end users except you may permit further
redistribution of the Redistributable Code by your distributors if they
only distribute the Redistributable Code in conjunction with, and as part
of, the Application and you and your distributors comply with all other
terms of this License.
ii.
Additional Requirements for MSDE. If you choose to redistribute MSDE,
you also agree:
a.
that your Application shall not substantially duplicate the capabilities of
Microsoft Access or, in the reasonable opinion of Microsoft, compete with same;
and
b.
that unless your Application requires your customers to license Microsoft Access
in order to operate, you shall not reproduce or use MSDE for commercial distribution
in conjunction with a general purpose word processing, spreadsheet or database
management software product, or an integrated work or product suite whose components
include a general purpose word processing, spreadsheet, or database management
software product except for the exclusive use of importing data to the various
formats supported by Microsoft Access. Note: A product that includes limited
word processing, spreadsheet or database components along with other components
which provide significant and primary value, such as an accounting product with
limited spreadsheet capability, is not considered to be a "general purpose"
product.
For
SMS Server.
Installation – Client Software. You may install and use the Installer component
of the Client Software ("SMS Installer") only for the purpose of creating
installation programs through the use of SMS Installer ("Setup Programs").
You may also use and modify the source code designated as "Sample Code"
in the SAMPLES.TXT file for the sole purposes of designing, developing, and
testing your Setup Programs. You may also install and use in object code form
the Redistributable Components (as defined below), along with any modifications
you may make to the Sample Code, only on Devices within your organization for
a purpose other than creation of Setup Programs, provided that: you reproduce
and use the Redistributable Components only in conjunction with or as part of
a Setup Program; a valid SAL is acquired by IT Technovations on your behalf
for Microsoft Systems Management Server for each User that uses the Redistributable
Components; and you indemnify, hold harmless and defend Microsoft and its suppliers
from and against any claims or lawsuits, including attorneys’ fees, that arise
or result from the use of your Setup Program or any software installed by your
Setup Program. You do not have any other right to install or use SMS Installer.
You may reproduce and distribute the files listed in the REDIST.TXT file (collectively
referred to as "Redistributable Components"), along with any modifications
you may make to the Sample Code, provided that you comply with the Distribution
Terms listed in such REDIST.TXT file. Note that the Distribution Terms include,
among other conditions, terms similar to those described above.
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