InMotion Hosting, Inc
UNIVERSAL TERMS OF SERVICE AGREEMENT
Last Revised Date: October 15, 2020
PLEASE READ CAREFULLY.
THIS CONTAINS TERMS AND CONDITIONS REGARDING CUSTOMER’S LEGAL RIGHTS AND REMEDIES FOR ACCESSING AND USING COMPANY’S PRODUCTS AND SERVICES.
This Universal Terms of Service Agreement (“Universal Terms”) 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 to Company, collectively, the “Order Form”), and applies to the purchase of all products and services ordered by 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 AND CUSTOMER HEREBY AGREES TO BE BOUND BY THE AGREEMENTS (AS DEFINED HEREIN). WHEN CUSTOMER SIGNS UP FOR AND/OR CUSTOMERS ACCESS OR USES THE SERVICES SUCH HEREBY CONSTITUTES CUSTOMER’S ACCEPTANCE OF THE AGREEMENTS.
- Modification to the Agreements, Policies and/or the Services.
- Customer’s access of and/or use of Company’s Site or the Services after such changes or modifications have been made shall constitute Customer’s acceptance of the Agreements as of the “Last Revised Date” stated above. If Customer does not agree to be bound by the Agreements as of the “Last Revised Date”, Customer should not access or use or continue to access or use Company’s Site or the Services.
- Company may (but is not obligated) occasionally notify Customer of changes or modifications to the Agreements 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.
- Company may terminate, as determined in Company’s sole and absolute discretion, Customer’s access or use of Company’s Site or the Services for any violation or breach or threatened violation or breach by Customer of any of the terms of the Agreements.
- 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.
- Customer’s Account.
- 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, cancel 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 and payment method(s). For security purposes, Company strongly recommends that Customer change Customer’s password periodically for any Account.
- 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, which may include providing a valid identification.
- Customer agrees to abide by all U.S. Export Laws (as defined herein).
- Customer must notify Company immediately of any breach of security or unauthorized access or use of the Account. Customer may be liable for any damages or loss Company or others incur caused by a breach of an Account, whether caused by Customer, or by an authorized person, or by an unauthorized person.
- Customer’s Responsibilities.
- Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and User Content and the goods or services provided through the Services.
- 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 the Agreements will extend the time for Company’s performance of its obligations hereunder that depend on Customer’s performance on a day for day basis.
- Customer assumes full responsibility for providing any of its visitors, customers or 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.
- Because the Services permit Customer to electronically transmit or upload content, Customer shall be fully solely responsible for uploading all content and supplementing, modifying and updating the Customer Content, including Customer shall be responsible for all back-ups of Customer’s Content. 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 or can be requested. 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 or incompatible with the hardware and software used by Company to provide the Services.
- CUSTOMER IS SOLELY RESPONSIBLE FOR MAKING BACK-UP COPIES OF ALL CUSTOMER CONTENT.
- Customer’s Representations and Warranties.
- Customer hereby represents and warrants to Company, and agrees that during the Initial or Introductory Term and any Term (as such terms are defined herein) thereafter for the Services, that Customer will ensure that:
- Customer is and remains the legal 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;
- 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 will use the Customer Content only for lawful purposes; and
- Customer has used and will continue to use 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.
- 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 through Customer Content 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 Customer Content or 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 Customer Content, its website(s) and online store.
- 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.
- In addition to transactions entered into by Customer on Customer’s behalf, Customer agrees to be bound by the terms of the Agreements and Policies 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.
- Customer hereby represents and warrants to Company, and agrees that during the Initial or Introductory Term and any Term (as such terms are defined herein) thereafter for the Services, that Customer will ensure that:
- License to Company. Customer hereby grants to Company a non-exclusive, royalty-free, worldwide right and license during the Initial or Introductory Term and any Term (as such terms are defined herein) thereafter to do the following to the extent necessary in the performance of the Services:
- 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;
- 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);
- 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
- 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 website(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.
- Billing and Payment.
- Customer shall pay to Company any fees for the Services in the manner set forth in the Order Form or as otherwise dictated by Company.
- Any Service fees may 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 may 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.
- Unless otherwise specified, Customer agrees to pay 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 and 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.
- If Company collects any payment due at law or through an attorney or under advice from an attorney or through a collection agency, or if Company prevails in any action to which the Customer and Company are parties, Customer agrees to pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company’s reasonable attorneys’ fees.
- Customer agrees to pay if any Customer check is returned for insufficient funds then Company may impose a minimum processing charge of $25.00.
- Customer agrees 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 the Agreements, and/or withhold or suspend Services.
- Customer agrees to pay a minimum charge of $50.00 to reinstate and Account that has been suspended or terminated.
- Customer agrees to pay wire transfers of $35.00 per wire.
- Customer agrees to pay charge of $35.00 for all credit card chargebacks.
- Other than as required by applicable law, Company does not retain hard copies or electronic versions of mandates, standing orders or standing instruction forms and/or any signed consents relating to a Customer’s payment or usage of Company automatic renewal services, and Company are therefore unable to provide any such document upon request.
- IN ORDER TO ENSURE THAT CUSTOMER DOES NOT EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, THE SERVICES ARE OFFERED ON AN AUTOMATIC RENEWAL BASIS. 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 TERM PERIOD.
- UNLESS CUSTOMER DISABLES THE AUTOMATIC RENEWAL OPTION IN THE ACCOUNT, COMPANY WILL AUTOMATICALLY RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL AND WILL TAKE PAYMENT FROM ANY PAYMENT METHOD CUSTOMER HAS ON FILE WITH COMPANY AT COMPANY’S THEN CURRENT RATES, WHICH CUSTOMER ACKNOWLEDGES AND AGREES MAY BE HIGHER OR LOWER THAN THE RATES FOR THE ORIGINAL SERVICE TERM PERIOD. IN ORDER TO SEE THE RENEWAL SETTINGS APPLICABLE TO CUSTOMER AND THE SERVICES, CUSTOMER WILL NEED TO LOG INTO THE ACCOUNT. IF CUSTOMER DOES NOT WANT ANY SERVICE TO AUTOMATICALLY RENEW, CUSTOMER MAY ELECT TO CANCEL SUCH 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 ANY DOUBT, SHOULD CUSTOMER ELECT TO CANCEL THE SERVICES AND FAIL TO MANUALLY RENEW THE SERVICES BEFORE THEY EXPIRE, CUSTOMER MAY EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES AND LOSS OF CUSTOMER CONTENT, AND COMPANY SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY REGARDING SUCH INTERRUPTION OR LOSS.
- 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.
- COMPANY MAY PARTICIPATE IN “RECURRING BILLING PROGRAMS” OR “ACCOUNT UPDATER SERVICES” SUPPORTED BY CUSTOMER’S CREDIT CARD PROVIDER (AND ULTIMATELY DEPENDENT ON CUSTOMER BANK’S PARTICIPATION). IF COMPANY IS UNABLE TO SUCCESSFULLY CHARGE CUSTOMER’S EXISTING PAYMENT METHOD, CUSTOMER’S CREDIT CARD PROVIDER (OR CUSTOMER’S BANK) MAY NOTIFY COMPANY OF UPDATES TO CUSTOMER’S CREDIT CARD NUMBER AND/OR EXPIRATION DATE, OR MAY AUTOMATICALLY CHARGE CUSTOMER’S NEW CREDIT CARD ON COMPANY BEHALF WITHOUT NOTIFICATION TO COMPANY. IN ACCORDANCE WITH ANY RECURRING BILLING PROGRAM REQUIREMENTS, IN THE EVENT THAT COMPANY IS NOTIFIED OF AN UPDATE TO CUSTOMER’S CREDIT CARD NUMBER AND/OR EXPIRATION DATE, COMPANY MAY AUTOMATICALLY UPDATE CUSTOMER’S PAYMENT PROFILE ON CUSTOMER’S BEHALF. COMPANY MAKES NO GUARANTEES THAT COMPANY WILL REQUEST OR RECEIVE CUSTOMER’S UPDATED CREDIT CARD INFORMATION. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS CUSTOMER’S SOLE RESPONSIBILITY TO MODIFY AND MAINTAIN THE ACCOUNT SETTINGS, INCLUDING BUT NOT LIMITED TO (I) CANCELLING THE SERVICES AND (II) ENSURING CUSTOMER’S ASSOCIATED PAYMENT METHOD(S) ARE CURRENT AND VALID. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S 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 SUCH INTERRUPTION OR LOSS.
- If for any reason Company is unable to charge Customer’s 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’s 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’s noncompliance with the Agreements (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 in the Account.
- Company may offer 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’s 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’s bank statement or post as a separate amount. Customer should check with the issuer of Customer’s 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’s bank and/or the country indicated in Customer’s billing address section in the Account.
- Term; Termination; Cancellation Policy.
- 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.”
- 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.
- 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.
- 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.
- 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.
- 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,
- 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.
- Conduct Towards Company.
1. Company will protect the health, safety, and welfare of its employees. Unprofessional conduct, threats, abusive language (including, but not limited to, disparaging remarks regarding the sex, race, religion, or sexual orientation of Company’s employees) and/or anything that could be considered hate speech in the course of Customer’s communications with Company will not be tolerated. Such conduct may result in the termination of communications and repeated offenses may result in the suspension, cancellation or termination of termination the Services account, without any refund to Customer, as determined in Company’s sole discretion.
- Property Rights.
- Company hereby grants Customer a limited, non-exclusive, non-transferable, royalty-free license, exercisable solely during the Term of the Agreements, to use Company’s 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, the Agreements does not transfer from Company to Customer any Company technology, all rights, titles, and interests in, and to any Company technology, all of which 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.
- 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 the Agreements constitutes a license to Customer to use or resell the Marks.
- Company’s web interface 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 Site. All such requests are subject to an approval process by Company, but are not required to be granted. Changes for the benefit of a single customer which would cause more than one concurrent version of the software will not be considered.
- 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 located on the Company’s Site.
- 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 (i) arising out of or relating to Customer’s use of the Services, (ii) for any violation by Customer of the Agreements, the Policies, the AUP or any agreement related to the Services, (iii) any breach of any representation, warranty or covenant of Customer, or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of the Agreements.
- 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 any content is deemed 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.
- Translation. The Agreements 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 the Agreements and the English (USA) version, the English (USA) version will control.
- General Terms.
- Independent Contractor. Company and Customer are independent contractors and nothing contained in the Agreements 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.
- Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to the Agreements, including the formation thereof or 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 the Agreements. ANY SUIT, ACTION OR PROCEEDING CONCERNING THE AGREEMENTS 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.
- Jurisdiction and Disputes.
- Customer acknowledges and agrees that the Agreements are deemed to be entered into in California, regardless of the location of Customer.
- Prior to the filing of any claim or lawsuit with respect to any dispute arising under the Agreements (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 the Agreements or performance under the Agreements 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 court, agree to accept service of process by US mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
- CLASS ACTION WAIVER. CUSTOMER AGREES NOT TO CONSOLIDATE MORE THAN ONE PERSON’S CLAIM, AND MAY NOT OTHERWISE PRESIDE OVER OR PARTICIPATE IN 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 CUSTOMER AND COMPANY SPECIFICALLY AGREE IN WRITING TO DO SO. NEITHER CUSTOMER, NOR ANY OTHER MEMBER OF COMPANY CAN BE A CLASS REPRESENTATIVE, CLASS MEMBER, OR OTHERWISE PARTICIPATE IN A CLASS, REPRESENTATIVE, CONSOLIDATED OR PRIVATE ATTORNEY GENERAL PROCEEDING.
- Headings. The headings herein are for convenience only and are not part of the Agreements.
- Entire Agreement; Amendments. The Agreements, including, the Policies, AUP or any agreement related to the Services, and documents incorporated herein by reference, supersedes all prior discussions, negotiations, and agreements between the parties with respect to the subject matter hereof, and the Agreements (unless specifically stated therein) constitute the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between the Agreements, any Order Form, any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of the Agreements shall control. No additional terms or conditions relating to the subject matter of the Agreements shall be effective unless approved in writing by an authorized representative of Customer and Company. The Agreements may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that the Agreements may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company’s Site.
- Severability. All rights and restrictions contained in the Agreements 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 the Agreements illegal, invalid or unenforceable. If any provision or portion of any provision of the Agreements 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 the Agreements 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 the Account.
- 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 the Agreements 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 the Agreements 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 the Agreements, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. The Agreements 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 the Agreements may be brought by either party more than two years after the cause of action has arisen.
- Counterparts. If the Agreements are signed manually, each 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 the Agreements are signed electronically, Company’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 the Agreements (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, epidemics, pandemics, government order, 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 the Agreements, nothing 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 Company, and any supplier of third-party supplier that is identified as a third-party beneficiary, is an intended third-party beneficiary of the provisions set forth in the Agreements as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of the Agreements with respect to its products or services against Customer as if it were a party to the Agreements.
- 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 the Agreements 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.
- 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 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 the Agreements or Customer use of Customer Site or the Services.
- Marketing. Customer agrees that during the Term of the Agreements 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 the Agreements, please contact Company by email or regular mail at the following address:
Attn: Legal Department
555 S Independence Blvd
Virginia Beach, VA 23452