General Terms and Conditions
1. TERM AND TERMINATION
1.1. Effective Date and Term
The initial term will begin on the Effective Date. The period
between the Effective Date, and the date of Termination or Expiration,
if any, is the “Term.”
1.2. Termination
Unless otherwise specified in a Service Attachment, following the
expiration of a service’s respective term, the term will automatically
renew for the length of the initial term (“Renewal Term”) unless
cancelled in writing by either party at least 30 days before the
expiration of the Term or Renewal Term.
We reserve the right to terminate this Agreement for a violation of our
AUP. One party may also terminate this Agreement upon the
occurrence of a material breach, which has not been cured by the other
party within 30 days of their receipt of written notice of the
breach. For the purposes of defining a material breach,
materiality shall be determined from the perspective of a reasonable
business person with significant experience in conducting business on
the Internet. Notices of material breach must contain sufficient
detail for the party against whom the assertion of material breach is
directed to identify the breach and attempt to take corrective
action.
1.3. Guarantees
In certain cases, this Agreement, or particular Service Attachments may
be terminated by you within a defined period of time for any reason, or
no reason at all (“Guarantee”). Any time provisions of this
Guarantee begin to elapse on the Effective Date and are calculated on a
calendar day basis. A Guarantee only applies during the Term and
does not apply to any Renewal Terms. Non-recurring charges, as
defined below, are never subject to the Guarantee.
2. PAYMENT
2.1. CHECK
During the Term and any Renewal Terms, we may periodically review your
credit history. This review may consist of a review of your
payment history with us, your broader credit history as reported
elsewhere, and the amount of fraud reported to us as originating with
your account. By entering into this Agreement, you consent to
this review, and the disclosure of your credit history, at our option,
to recognized credit agencies.
2.2. Non-recurring Charges
You must pay any non-recurring charges, such as set up fees, as set out
on our web site. Payment of these non-recurring charges is a
pre-requisite to our obligation to provide services to you.
2.3. Recurring Charges
SERVICE HOSTING FEES are $120.00 per year
Unless otherwise set out on an individual Service Attachment, you agree
to pay all charges by the due date indicated on the invoice ("Due
Date"). You will pay us interest on payments made following the Due
Date at the rate of 1.5% per month or the maximum rate allowable by
law. You may be assessed a processing fee on late payments, at our sole
discretion, if we incur administrative and/or legal costs associated
with your late payment. Those costs are calculated on an hourly basis,
rounded up to the next full hour, and are based on our current hourly
rates. If your check is returned by your bank, you will be billed any
return check fee charged to us plus a $25 special handling &
processing fee. If you do not pay all undisputed amounts by the Due
Date, we reserve the right to disconnect services and refuse to
continue to provide them to you.
2.4. Refunds
We have calculated our fees based on the Term. Accordingly, fees
will only be refunded as is expressly set out in this Agreement.
Regardless of the Guarantee, Effective Date, Term, or Renewal Term,
should you be required to make advance payment for certain services, or
pay certain service fees, those fees are not refundable should you
choose to terminate the Agreement for any reason.
2.5. Charges for Previously Provided Services and Storage of Equipment
We reserve the right to bill you retroactively for any services
provided to you for which we had not previously billed. We also
reserve the right to bill you retroactively for the costs of the
removal and storage of equipment you have placed in our facility if
this Agreement is terminated and this equipment is not removed by
you. We also reserve the right to sell your equipment to satisfy
your outstanding storage charges.
2.6. Bill Disputes
You have up to 25 days (commencing five days after the date of our
bill, or on the date on which your credit card is charged) to initiate
a dispute over charges or to receive credits, if applicable. In
order to dispute your bill, you must send us a written itemized
description of the specific items you dispute in your bill. This
itemization must be in sufficient detail for us to identify the items
in dispute. We must receive this information prior to the date
set out above. You agree to pay by the Due Date all charges not
specifically itemized in your written notice of dispute.
3. TAXES
You are responsible for all taxes and fees associated with the services
which we are legally required or permitted to collect from you. These
taxes and fees may include, but are not limited to, any sales, use,
transfer, gross receipts, federal excise, right-of-way, franchise,
privilege, property, occupational and similar taxes and surcharges,
regardless of your physical location. If these taxes are assessed
on us, based on the services provided to you, and we are required to
pay these taxes, they will be billed to you, in addition to a
reasonable special handling & processing fee. You are not
responsible for taxes based on our income.
4. USE OF SERVICES
You are bound by our AUP, and may only use services provided by us for
the purposes set out in the AUP. You are responsible for the
activities of your customers and third party users of services provided
by us through you.
4.1. Material, Products, Information and Services.
4.1.1. Server Ready
You will provide us with material and data in a condition that is
capable of being deployed by us without any specialized effort on our
part. In most cases, that requires that the material and data be
“Server Ready” and that term is used throughout this Agreement to refer
to this obligation.
4.1.2. Working Order
All Server Ready material provided to us must be previously validated
and tested. We have no responsibility, and will make no effort to
validate material and data placed on our servers and network. In
the event that material provided to us is not Server Ready, we may at
any time reject and delete this material. You may be offered the
opportunity to make rejected material Server Ready; however, we are
under no obligation to allow you to do so. Rejection of material
for its failure to be Server Ready shall not constitute a material
breach of this Agreement by us.
4.1.3. Knowledge
Use of our services requires that you possess a certain level of
knowledge. At a minimum, you represent and warrant that you have
sufficient knowledge about administering, designing and operating a web
site, and if engaged in commercial activity, have significant
experience in conducting business on the Internet, and operating the
hardware and software necessary to conduct that business. Your
failure to anticipate the complexity of operation of the services
purchased from us shall not be a basis for you to terminate this
Agreement.
KKS BOLASH/NATHAN HEMENWAY offers a number of services designed to assist you in the use
and operation of your hardware and software. These services
are provided at an additional cost, and pursuant to various contract
addenda. We may terminate this agreement, at our sole and
exclusive option, should your requests for support exceed those
typically experienced by us for similarly situated customers.
5. MATERIAL, SERVICES AND INFORMATION
5.1. Connection Speed
Connection speed represents the maximum speed of a connection and does
not represent guarantees of available end-to-end bandwidth.
5.2. Hardware, equipment and software
You are responsible for, and must provide, all telephone, computer,
hardware and software equipment, and services necessary to access our
network. It is your obligation to determine if the equipment
necessary to connect with our network, and interact with it, is
compatible. We are not responsible for incompatibility of our
equipment and network with yours. Such an incompatibility is not
grounds for termination of this Agreement by you, nor shall it
constitute a material breach by us.
5.3. Reasonable use
We have determined what constitutes reasonable use of our network for
the particular services and products you purchase from us. These
standards are based on typical customer use of our network, for similar
services and products. It is your obligation to monitor the use
of your services and/or server(s) –to ensure that there are not unusual
spikes and peaks in your bandwidth or disk usage. We understand
that your business often succeeds beyond your initial expectations, or
that you may face, at times, unexpected or unforeseen traffic
levels. For that reason, we are pleased to offer you unlimited
bandwidth, up to the capacity of the server’s connection (while
metering and billing you based on the total traffic per month).
However, should your use of our network and/or products exceed the
limits described above, you will incur additional charges for that
use. These charges will apply regardless of whether you initiated
the additional use, or it was caused by a third party.
5.4. Reselling
You are allowed to resell to third-parties, the storage and transfer
services provided by us, under the following conditions:
- You must provide to third-parties an active link to our current AUP;
- Third-parties to whom you provide services, must
specifically disclaim any right to legal recourse against us for
services provided by us, or our suppliers, to you, or to the
third-party through you;
- You take full and unlimited responsibility for the
actions of the third-parties, and agree to cooperate with us
unconditionally should we be made aware that the third-party is acting
in a way that violates our AUP, this Agreement, or the law;
- You are required to have at least one other non-resold account; and
- You are required to provide all support to the third-parties for any resold products or services.
In
addition to being a material breach of this Agreement, your failure to
comply with the provisions of this section shall entitle us to full
recourse against you for any damages, losses, or expenses sustained by
that failure. This remedy shall be in addition to, and not in
lieu of, those provided for in this Agreement and at law, and shall
survive termination of this Agreement.
6. LICENSES, WARRANTIES, LIMITATION OF WARRANTIES, AND LIMITATION OF LIABILITY
6.1. Licenses and Intellectual Property
6.1.1. License from us to you
We
grant to you a non-exclusive, non-transferable, worldwide, royalty free
license to use technology provided by us solely to access and use the
services. This license terminates on the expiration or termination of
this Agreement. Except for the license rights set out above, this
license does not grant any additional rights to you. All right, title
and interest in our technology shall remain with us or our licensors.
You are not permitted to circumvent any devices designed to protect
our, or our licensor’s, ownership interests in the technology provided
to you. In addition, you may not reverse engineer this technology.
Any
license provided to you, is provided with "RESTRICTED RIGHTS"
applicable to private and public licensees. These rights include, but
are not limited to, restrictions on use, duplication, or disclosure by
the United States Government as set forth in this Agreement and as
provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and
Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1)
and (2) of the Commercial Computer Software Restricted Rights at 48 CFR
52.227-19, as applicable.
6.2 Licenses from you to us
We
may use information you provide to us to for technical support,
implementation, operation or administration of the services
(Operational Information). Operational Information, as well as
aggregate information gleaned from the operation of our business in
general, will be used to improve, or create new products and services.
We shall be the exclusive owners of the resulting intellectual
property. You waive any rights you may in this intellectual property,
and assign all right, title and interest in it to us and agree to
cooperate with us to secure our rights.
You
grant to us, and any third parties used by us to provide the services,
a non-exclusive, non-transferable, worldwide, royalty free license to
use, disseminate, transmit and cache content, technology and
information provided by you and, if applicable, End Users, in
conjunction with the services. This license terminates on the
expiration or termination of this Agreement. All right, title and
interest in your technology shall remain with you, your End Users, or
your licensors.
6.3. Representations and Warranties
6.3.1. Reciprocal
We
each warrant to the other that: (i) we have the power, authority and
legal right to enter into this Agreement; and (ii) we have the power,
authority and legal right to perform our obligations under this
Agreement and all incorporated provisions.
6.3.2. Your Representations and Warranty
You
represent and warrant to us that: (i) you have the experience and
knowledge necessary to use the services; (ii) you understand and
appreciate the risks inherent to you, your business and your person,
that come from accessing the Internet; (iii) you will provide us with
material that may be implemented by us to provide the services without
extra effort on our part; (iv) you have sufficient knowledge about
administering, designing and operating the functions facilitated by the
service to take advantage of the service; (v) that you understand that
you may not be able to access location based services, such as “911”
emergency calls, using the service; (vi) that in entering into this
Agreement, and performing the obligations set out in it, you will not
violate any applicable laws and regulations; (vii) that you will make
back up copies of your data even if you purchase “back up”
services from us; and/or (viii) that you will pass through the terms of
our Acceptable Use Policy to your customers in your agreements with
them.
You
expressly warrant that you own the entire right, title and interest to,
or have an appropriate license to use, all materials provided to us, or
which may be accessed or transmitted using the services. You also
warrant that to the extent you do business with other parties using the
services, that they have the same ownership interests in the materials
provided to you, or accessed via you, that are set out in this
paragraph.
6.3.3. Our Representations and Warranty
For each service we provide, we warrant that we will perform in a competent manner.
6.4 Disclaimers and Limitations of Liability
EXCEPT
AS SPECIFIED IN THIS SECTION, ALL EXPRESS OR IMPLIED CONDITIONS,
REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OR CONDTIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST INFRINGEMENT OR
ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY
EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. This disclaimer
and exclusion shall apply even if the express warranty set forth above
fails of its essential purpose.
YOU MAY NOT BE ABLE TO USE LOCATION BASED EMERGENCY PRODUCTS, SUCH AS
“911,” USING THE PRODUCTS. WE HAVE NO LIABILITY FOR DAMAGES OR
INJURIES, OF ANY TYPE, THAT YOU, EMPLOYEES, AGENTS OR AFFILIATES
SUSTAIN BASED ON THE FACT THAT LOCATION BASED PRODUCTS ARE UNAVAILBLE.
YOU AGREE DO INDEMNIFY AND HOLD US HARMLESS BASED ON THIRD PARTY CLAIMS
BASED IN WHOLE OR IN PART ON THEIR INABILITY TO USE A LOCATION BASED
SERVICE.
PRODUCTS
AND SERVICES PURCHASED THROUGH US ARE SOLD AS-IS. TO THE EXTENT
THAT THESE PRODUCTS AND SERVICES HAVE WARRANTIES, YOU AGREE TO LOOK TO
THE MANUFACTURER OR SUPPLIER FOR ALL CLAIMS. WARRANTIES MADE BY
THESE MANUFACTURERS AND SUPPLIERS MAY NOT BE PASSED THROUGH TO YOU, AND
WE EXPRESSLY DISCLAIM ANY OBLIGATION TO AFFECT SUCH A PASS THROUGH
SHOULD ONE BE POSSIBLE.
IN
NO EVENT WILL KKS BOLASH/NATHAN HEMENWAY’S LIABILITY HEREUNDER EXCEED THE AGGREGAGE FEES
ACTUALLY RECEIVED BY KKS BOLASH/NATHAN HEMENWAY FROM CUSTOMER FOR THE 12 MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE
PURPOSES OF THIS PARAGRAPH ONLY, THE TERM KKS BOLASH/NATHAN HEMENWAY SHALL BE INTERPRETED
TO INCLUDE KKS BOLASH/NATHAN HEMENWAY’S EMPLOYEE’S, AGENTS, OWNERS, DIRECTORS, OFFICERS,
AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH
KKS BOLASH/NATHAN HEMENWAY.
YOU
AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL
NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE,
HOLD KKS BOLASH/NATHAN HEMENWAY OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD
PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED
TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA
OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR
ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY
WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND
APPLY EVEN IF KKS BOLASH/NATHAN HEMENWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN
THOSE JURISDICTIONS KKS BOLASH/NATHAN HEMENWAY’S LIABILITY WILL BE LIMITED TO THE EXTENT
PERMITTED BY LAW.
7. INDEMNIFICATION
You agree to indemnify, defend and hold harmless KKS BOLASH/NATHAN HEMENWAY and its parent,
subsidiary and affiliated companies, and each of their respective
officers, directors, employees, shareholders 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 (i) your use of our
products (ii) any violation by you of the AUP; (iii) any breach of any
of your representations, warranties or covenants contained in this
Agreement; or (iv) any acts or omissions by you. The terms of
this section shall survive any termination of this Agreement. For
the purpose of this paragraph only, the terms used to designate you
include you, your customers, visitors to your website, and users of
your products or services, the use of which is facilitated by us.
If you fail to comply with any terms of this Agreement, you shall be
fully responsible for the cost of labour and any and all other costs,
losses or legal expenses incurred by us in order to rectify the damage
caused by you, or due to that damage.
8. OPERATION OF FACILITIES
In order to implement the services, you may be required to provide us
with technical information. If we do not receive this information
in a commercially reasonable amount of time, and the Agreement is
terminated by us, you will continue to be responsible for all
non-recurring charges, and any recurring charges accrued and/or
invoiced up to and until termination. We may provide you with an IP
address, or addresses. We retain ownership of these IP addresses and
may change them at any time. Upon termination of this Agreement, you
will not have the ability to transfer these addresses.
9. NOTICES
All notices must be sent in one of the following manners (i) by a
recognized express carrier using delivery confirmation; (ii) by
registered mail, return receipt requested; or (iii) by facsimile in
which both the broadcasting machine and receiving machine date stamp
each page of a transmitted document. Notices shall be deemed
effective 2 business days following the date upon which receipt is
indicated. However, if in the case of items (i) or (ii) above,
should the notices be refused or the date of receipt be otherwise
unavailable, notice will be deemed received 10 business days from
actual deposit with the carrier. We reserve the right to contact you by
e-mail regarding issues related to your account and this contract,
other than material breaches and our termination of this
Agreement. Our e-mail notices are effective 10 minutes after they
are sent by our servers. Your e-mail communications to us shall
not constitute notice. All notices will be sent to you at the
address set out on your initial order form. It is your obligation
to ensure that we have correct information to which to send
notices. All notices to us shall be sent as follows.
All notices:
Nathan Hemenway
KKS BOLASH
1100 Longwood Place
Los Angeles, CA 90019
U.S.A.
Fax: nhemenway@kksbolash.com (PDFs)
Copies of all legal notices:
Nathan Hemenway
KKS BOLASH
1100 Longwood Place
Los Angeles, CA 90019
U.S.A.
Fax: nhemenway@kksbolash.com (PDFs)
10. OPERATION OF OUR FACILITIES
We retain the right to maintain and operate our facilities in such a
manner as will best enable us to conduct our normal business
operations. You may not terminate this Agreement based on changes
in this operation unless such a change materially alters the type of
product or service provided by us. In particular, you are not
guaranteed a particular IP or IP block, shared server allocation,
server rack, colocation space, or other physical location. At
times, IP renumbering of server/equipment moves may be necessary; you
agree to cooperate with us in the case of such a renumbering or move.
11. GENERAL
11.1. Choice of law, jurisdiction and forum
This Agreement shall be governed by the laws of the Commonwealth of
Virginia without regard to its choice of law rules. The parties
specifically disclaim the application of the United Nations Convention
for the International Sale of Goods. Federal courts located in
Fairfax County, Virginia shall have sole and exclusive jurisdiction
over this Agreement. All actions relating to this Agreement shall
be brought in the U.S. District Court for the Eastern District of
Virginia. The parties expressly agree that jurisdiction is proper
in the court set out in this paragraph.
11.2. Force Majure
Other than obligations regarding payments or confidentiality, neither
party shall be in default or otherwise liable for any delay in or
failure to perform under this Agreement if such a delay or failure is
caused by an event beyond its reasonable control. Events beyond a
party’s reasonable control include, but are not limited to, any act of
God, any act of a common enemy, the elements, earthquakes, floods,
fires, epidemics, inability to secure products or services from other
persons, entities or transportation facilities, failures or delay in
transportation or communications, or any act or failure to act by the
other party or such other party’s employees, agents or
contractors. Such a delay or failure shall not constitute a
breach of this Agreement. Lack of funds shall not constitute a
reason beyond a party’s reasonable control.
11.3. Transfer and Assignment
You may not sell, assign or transfer any of your rights or obligations
under this Agreement without our prior written consent. We
reserve the right to transfer services we provide to you, or assign
this Agreement, at any time, without your consent or knowledge.
11.4. Waiver
Any failure or delay on our part in exercising any of the rights or
powers given to us in this Agreement shall not operate as a waiver of
such a right or power, or affect our right to exercise the same or any
other right or power at a later date.
11.5. Severability
Should any paragraph or aspect of this Agreement be determined to be
contrary to law, the remainder of the Agreement shall be interpreted in
such a manner as if the omitted portions had not been included.
11.6. Drafting
Each party acknowledges that they have been given the opportunity to
review this Agreement and discuss it with counsel of their
choice. The Agreement shall be interpreted as if it had been
jointly drafted, and shall not be construed against the drafter.
11.7. Survival
The following paragraphs shall survive the termination or expiration of
this Agreement: 2 (Payment), 3 (Taxes), 5.4 (Reselling), 6
(Warranties and Limitation of Warranties), 7 (Indemnification), 9
(Notices), 11 (General).