|
|
| |
bizBaron - TERMS OF SERVICE
"bizBaron" (www.bizbaron.com) is a product (the "Product") of MoonLite Vision, Inc, which is also offered as a web hosting service. All references to "bizBaron" as a party within this agreement imply a reference to the owning corporation, MoonLite Vision, Inc.
1. TERM AND PAYMENT FOR SERVICES
1.1. Terms
This Agreement for web hosting (the "Service"), will be automatically renewed (the "Renewal Term") at the end of each term period at the rates agreed upon during registration. You must terminate the automatic renewal in order to terminate service by canceling your subscription to bizBaron through your PayPal® account. You will have access to the Services until the end of your paid term period.
Purchase or licensing of the bizBaron product is subject to the terms outlined for use of the bizBaron products and licensed services. One-time purchases of the bizBaron product for individual use, whether personally or commercially, are not subject to automatic renewal. Use of the bizBaron product outside of bizBaron hosting services must comply with the same terms of use as outlined in this policy.
1.2. Termination Policy
If you terminate your receipt of the Services prior to the end of the Renewal Term, (a) bizBaron will not refund to you any fees paid in advance of such termination and (b) you shall be required to pay 100% of bizBaron's agreed upon fees for the remainder of the term, unless otherwise expressly provided in this Agreement. bizBaron may terminate this Agreement at any time and for any reason by providing to you written notice, including email, thirty (30) days prior to the date of termination. If bizBaron terminates this Agreement, bizBaron will refund to you the pro-rata portion of prepaid fees attributable to Services (excluding setup fees) not yet rendered as of the termination date unless otherwise expressly provided in this Agreement. If termination was enforced due to violations that result in damages or fees assigned to bizBaron on your behalf, no refunds shall apply and you will be held liable for such fees.
bizBaron may request that you terminate use of the product due to violations of the terms of service. At such time, you will discontinue use of the product and a refund of your purchase may be granted. If you wish to terminate use of the product after purchase, you may do so without receiving a refund.
1.3 Default and Cure
In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within five (5) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice thereof to the defaulting party, may terminate this Agreement.
1.4. Charges
You agree to pay for all charges attributable to your use of the Services to bizBaron at the prices agreed upon during registration.
1.5. Payment
All charges for Services must be paid in advance according to the prices agreed upon during registration. Upon entering this Agreement, you must choose to pay by any payment method supported by PayPal®. By using PayPal®, you agree to their terms of use including, but not limited to, methods of payment, verification of identity, and fraudulent activity. Your failure to fully pay the fees associated with the Services within five (5) days after the applicable due date will be deemed a material breach of this Agreement, and bizBaron may, in addition to any other remedy it may have: (i) suspend its performance of the Services and/or terminate this Agreement; and/or (ii) At the time of such nonpayment, bizBaron may, delete any and all content from the related account. Any such suspension or termination of the Services would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees.
2. USE OF SERVICES
2.1. Applicable Use Policy
The bizBaron Acceptable Use Policy (the "Usage Policy") govern the general policies and procedures for use of the Services. The Usage Policy is listed below and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. bizBaron RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.
Important Note: This document is updated often. Please make a habit of reviewing it from time to time to stay abreast of acceptable as well as inappropriate uses of your bizBaron account and the bizBaron product. bizBaron is not required to send notifications when this page is updated.
Reports of activity in violation of this policy may be sent via email to abuse@bizbaron.com.
This document is intended to provide a general understanding of bizBaron's Acceptable Use Policy.
If a bizBaron account is used to violate the Acceptable Use Policy, we reserve the right to terminate or suspend your service without notice and you agree to indemnify bizBaron and its affiliates against any claims threatened or brought by third parties as a result of your violation of this Acceptable Use Policy and/or the content of your website. We prefer to advise customers of inappropriate behavior and any necessary corrective action. However, violations of the Acceptable Use Policy will result in immediate termination or suspension of service. Our failure to enforce this policy, for whatever reason, shall not be construed as a waiver of our right to do so at any time.
If you have any questions regarding this policy, please contact us at abuse@bizbaron.com.
2.1.1. General Information
bizBaron customers are prohibited from transmitting on or through any of bizBaron's services, any material that is, in bizBaron's sole discretion, unlawful, obscene, threatening, abusive, defamatory, libelous, or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law.
In general, you may NOT use your bizBaron account or the bizBaron product:
- In a manner which violates any law, regulation, treaty or tariff;
- In a manner which violates the rules, regulations and policies of any network, server, website, database or service provider that you access through your bizBaron account;
- In a manner which is defamatory, fraudulent, indecent, offensive or deceptive;
- To threaten, harass, abuse or intimidate others;
- To damage the name or reputation of bizBaron, affiliates and subsidiaries;
- To break security on any computer network, or to access an account which does not belong to you; or
- In a manner which interferes with other customers' use and enjoyment of the services provided by bizBaron.
bizBaron's services and products may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or any other statute. bizBaron reserves the right to remove such illegal material from its servers or to immediately terminate your services or use of the product without notice.
Furnishing false data on any contract or application, including fraudulent use of credit card numbers, is grounds for immediate termination, and may subject the offender to civil or criminal liability.
bizBaron reserves sole discretion to determine whether any use of the service or the product is a violation of this policy. Guidelines for using bizBaron follow. This information is only a guideline, and is not intended to be all-inclusive.
2.1.2. Electronic Mail
You may not use bizBaron to send unsolicited bulk or commercial messages ("spam"). This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious tracts. Such messages may only be sent to those who have explicitly requested it.
You may not use bizBaron to collect responses from unsolicited bulk or commercial email sent from accounts with other providers. Forging, altering or removing electronic mail headers is prohibited. You may not send numerous copies of the same or substantially similar message, nor may you send very large messages or files to a recipient, with the intent to disrupt a server or tarnish the reputation of the bizBaron product. You may not use electronic mail to harass or intimidate others. Harassment, whether through language, frequency of messages, or size of messages, is prohibited. Sending a single unwelcome message may be considered harassment. If a recipient asks to stop receiving email, you must not send that person any further messages. You may not forward or otherwise propagate chain letters, whether or not such messages solicit money or other items of value, and whether or not the recipient wishes to receive such mailings.
bizBaron accounts may not be used to collect replies to messages sent from another Internet service provider if those messages violate this Acceptable Use Policy or the acceptable use policy of the other service provider.
If you use the services of another provider to promote a website hosted by or through bizBaron, then the provisions of this Acceptable Use Policy shall apply to the methods used to promote such site.
2.1.3. Websites
bizBaron provides storage space and access for websites through its Web services. Through this Agreement, you understand that bizBaron may periodically monitor the contents of your websites.
You are solely responsible for any information contained on your website. However, if complaints are received regarding language, content or graphics contained on your website, or bizBaron determines the content is in violation of this Agreement, bizBaron may, at its sole discretion, remove the website hosted by bizBaron and terminate your Web service. You agree to promptly reimburse bizBaron for any reasonable expenses it incurs (including attorney's fees) in defending itself form third party claims relating to any of the content (whether created by you, your customers or your users) contained on your website.
You may not use your website to publish material which bizBaron determines, at its sole discretion, to be unlawful, indecent or objectionable. For purposes of this policy, "material" refers to all forms of communications including narrative descriptions, graphics (including photographs, illustrations, images, drawings, logos), executable programs, video recordings, and audio recordings.
Unlawful content is that which violates any law, statute, treaty, regulation, or lawful order. This includes, but is not limited to: obscene material; defamatory, fraudulent or deceptive statements; threatening, intimidating or harassing statements, or material which violates the privacy rights or property rights of others (copyrights or trademarks, for example).
bizBaron, in its sole discretion, reserves the right to terminate this Agreement if any website content contains obscene material as interpreted by bizBaron. This includes, but is not limited to, adult sexual content, including pornography.
bizBaron may terminate this Agreement if your website content contains: Material which encourages the commission of a crime; or which tends to incite violence; or which tends to degrade any person or group based on sex, nationality, religion, color, age, marital status, sexual orientation, disability or political affiliation.
You may not resell bizBaron services or the bizBaron product without the written consent of bizBaron.
2.1.4. Security
You are responsible for any misuse of your account, even if the inappropriate activity was committed by a friend, family member, guest, visitor or employee. Therefore, you must take steps to ensure that others do not gain access to your account. In addition, you may not use bizBaron to breach security of another or attempt to gain unauthorized access to another network or server.
Denial of Services, DDoS, Smurf and other service attacks started against your bizBaron-hosted website will effect the entire population of bizBaron, therefore your site will be subject to immediate termination of your account.
You must adopt adequate security measures to prevent or minimize unauthorized use of bizBaron.
You may not attempt to circumvent user authentication or security of any host, network or account ("cracking"). This includes, but is not limited to, accessing data not intended for you, logging into or making use of a server or account you are not expressly authorized to access, or probing the security of other Hosting. Use or distribution of tools designed for compromising security is prohibited. Examples of these tools include, but are not limited to, password guessing programs, cracking tools or network probing tools.
You may not host within your account files used to hack, crack, decode or generate keys. You may not host any files that are deemed malicious, which is at the sole discretion of bizBaron.
You may not attempt to interfere with service to any user, host, or network ("denial of service attacks"). This includes, but is not limited to, "flooding" of Hosting, deliberate attempts to overload a service, and attempts to "crash" a host.
Users who violate systems or network security may incur criminal or civil liability. bizBaron will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations.
2.1.5. Network Management
You are responsible for ensuring that the services and products obtained from bizBaron are used in an appropriate manner by your customers and users. Therefore, you must take steps to manage the use of the services obtained from bizBaron in such a way that network abuse is minimized. You must also make information publicly available about how to contact you, and you must respond in a timely manner to complaints concerning misuse of the services obtained from bizBaron. Failure to responsibly manage the use of the services obtained from bizBaron may be cause for termination of this agreement.
You must designate one or more individuals ("Contacts") to be responsible for every host, IP network or subnet connected to the Internet through the use of the Services. You must provide Contact names, phone numbers, and postal and email addresses ("Contact Information") to any and all appropriate Domain Name Registrars prior to the initial network connection of your service, where applicable. You must keep Contact Information updated and accurate at all times. Changes in the Contact Information must be sent to the appropriate Domain Name Registrars in a timely manner. Contacts must have the authority, access and tools necessary to configure, operate and control access to your systems.
2.1.6. Network Performance
bizBaron accounts operate on shared resources. Excessive use or abuse of these shared network resources by one customer may have a negative impact on all other customers. Misuse of network resources in a manner which impairs network performance is prohibited by this policy and may result in termination or suspension of your account without notice.
You are prohibited from excessive consumption of resources, including CPU time, memory, disk space and session time. You may not use resource-intensive programs which negatively impact other customers or the performance of bizBaron systems or Hosting. bizBaron reserves the right to terminate or limit such activities.
Denial of Services, DDoS, Smurf and other service attacks started against your website will effect the entire population of the bizBaron service, therefore your site will be subject to immediate termination of your account.
2.1.7. Internet Relay Chat
You may not use IRC scripts or programs that interfere with or deny service to other users on any other server, host, network or channel
IRC BOTS ARE PROHIBITED
You may not engage in activities which harass other users. This includes, but is not limited to, "flooding" (rapidly entering text with the intent to disrupt service), "flashing" (disrupting terminal emulation), "takeovers" (improper seizing and abuse of operator privileges), attempting to send private messages to those who do not wish to receive them, attempting to return to a channel after being banned from it, and other disruptive behaviors.
You may not attempt to impersonate other users. The use of nicknames does not constitute impersonation. You may run "clones" (multiple simultaneous IRC connections) and "robots" only as permitted by the host IRC server.
2.1.8. Illegal Activity
Any activity on our network that is a violation of any state or federal law is a violation of this policy and will result in immediate termination of agreement.
Prohibited activities include, but are not limited to:
- Transmitting obscene materials or child pornography
- Intentionally spreading or threatening to spread computer viruses
- Gaining or attempting to gain unauthorized access to any network, including the hosting network infrastructure
- Accessing or attempting to access information not intended for you
- Transmitting pirated software
- Conducting or participating in illegal gambling
- Soliciting for pyramid and other illegal schemes
bizBaron does not permit any site that contains: (i) images (including on banner ads) of nude models that appear to be under the age of 18 (in bizBaron's sole judgment), (ii) sexually explicit images (including on banner ads) of models that appear to be under the age of 18 (in bizBaron's sole judgment); or (iii) sites containing language promoting child pornography together with any sexually explicit or nude images. As required by federal law in the United States, bizBaron will report all offenders of this policy to the appropriate federal agency.
2.1.9. Privacy Statement
bizBaron has a policy to respect and protect the privacy of its customers and their information that is stored with bizBaron. bizBaron will only access and disclose information as necessary to comply with applicable laws and government requests, to provide the bizBaron Services, to operate or maintain its systems or to protect itself or its customers.
2.2. Material and Product Requirements
Unless we have agreed otherwise in a separate agreement, you must ensure that all material and data placed on equipment used for bizBaron's services is in a condition that is "server-ready," which is in a form requiring no additional manipulation by bizBaron. bizBaron will make no effort to validate any of this information for content, correctness or usability. If your material is not "server-ready", bizBaron has the option at any time to reject this material. bizBaron will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of bizBaron Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your website. You must have the necessary knowledge to create and maintain a website. It is not bizBaron's responsibility to provide this knowledge or customer support outside of the Services agreed to by you and bizBaron.
2.3. Bandwidth and Storage Usage
You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits set out. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month, you agree to upgrade your account or have your account terminated. Data stored in your user account on a bizBaron account is not owned by bizBaron; therefore Data preservation is the ultimate responsibility of you, the client. bizBaron is in no way responsible for the client's data and or the backup of that data. However, a backup of the previous day's backup data can be restored for an account at the agreed upon price by contacting bizBaron.
3. ENFORCEMENT
3.1. Investigation of Violations
bizBaron may investigate any reported or suspected violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. bizBaron will not access or review the contents of any email or similar stored electronic communications except as required or permitted by applicable law or legal process.
3.2. Actions
bizBaron reserves the right and has absolute discretion to restrict or remove from its application any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. If we become aware of any possible violation by you of this Agreement, any related policies or guidelines, third party rights or laws, bizBaron may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on bizBaron's systems, and/or (d) disabling or removing any hypertext links to third party websites, any of your content distributed or made available for distribution via the Services, or other content not supplied by bizBaron which, in bizBaron's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes bizBaron to civil or criminal liability or public ridicule. It is bizBaron's policy to terminate repeat infringers. bizBaron's right to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Services. If bizBaron takes corrective action due to such possible violation, bizBaron shall not be obligated to refund to you any fees paid in advance of such corrective action.
3.3. Disclosure Rights
To comply with applicable laws and lawful governmental requests, to protect bizBaron's systems and customers, or to ensure the integrity and operation of bizBaron's business and systems, bizBaron may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, email address, etc.), IP addressing and traffic information, usage history, and content residing on bizBaron's servers and systems. bizBaron also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Your License Grant to bizBaron
You hereby grant to bizBaron a non-exclusive, worldwide, and royalty-free license for the term of this Agreement to use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to bizBaron a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
4.2. bizBaron Materials and Intellectual Property
All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by bizBaron or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by bizBaron to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of bizBaron or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by bizBaron during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, redistribution, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. You may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.
4.3. Trademarks
You hereby grant to bizBaron a limited right to use your trademarks, if any, for the limited purpose of permitting bizBaron to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sub-license use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.
4.4. Reseller Agreements
For web hosting reseller agreements, you hereby agree to provide the bizBaron product to your direct web hosting customers, either free or otherwise, and will not redistribute bizBaron outside of the business for which the license was granted. Any violation of this policy, at the sole discretion of bizBaron, may result in termination of the agreement, at which time you will cease in distributing or otherwise providing the bizBaron product to anyone, including your direct customers.
4.5. bizBaron Identification
For any use of the bizBaron product, you agree to display the "Powered by bizBaron" link at the bottom of every page on which it is intended to be displayed based on the application as it was received. You will in no way attempt to hide or remove visibility of the "Powered by bizBaron" link on any of your web pages that are generated by the bizBaron application.
5. WARRANTY; WARRANTY DISCLAIMER
5.1. Customer and/or Third Party Acts
bizBaron is not responsible in any manner for any non-confirming Services to the extent caused by you or your customers. In addition, bizBaron is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond bizBaron's reasonable control.
5.2. No Express or Implied Warranty
ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY bizBaron UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT bizBaron EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH bizBaron's SERVICES AND POINTS OF PRESENCE, OR THE INTERNET. bizBaron DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY SECURE, AND DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, bizBaron DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK INFRINGEMENT.
5.3 Your Warranties and Representations to bizBaron
You warrant, represent, and covenant to bizBaron that (a) you are at least eighteen (18) years of age or are a duly organized and validly existing entity; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party websites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content and/or any software that you install or provide does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
6. LIMITATION AND EXCLUSION OF LIABILITY
6.1. Limitations
IN NO EVENT SHALL bizBaron HAVE ANY LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO bizBaron, DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES. bizBaron SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF bizBaron HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF bizBaron TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO bizBaron BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY bizBaron UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE bizBaron FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
6.2. Interruption of Service
You hereby acknowledge and agree that bizBaron will not be liable for any temporary delay, outages or interruptions of the Services. Further, bizBaron shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
6.3. Maintenance
You hereby acknowledge and agree that bizBaron reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. bizBaron will use best efforts to notify you of pending maintenance however at no time is under any obligation to inform you of such maintenance. You agree that it is bizBaron's sole discretion as to which tasks are included or excluded as "maintenance" for managed web hosting agreements. You agree to accept bizBaron's decision regarding the inclusion or exclusion of tasks as "maintenance", the time dedicated to each task, and the expiration of included maintenance as allotted based on the terms of the managed web hosting service for which you are subscribed.
7. INDEMNIFICATION
You will defend, indemnify and hold harmless bizBaron and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an "Indemnitee") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) your conduct, including but not limited to your negligence, gross negligence, or willful misconduct; (iii) your use of the Services, including any improper or illegal uses; (iv) any claim by a former employee of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by bizBaron ; or (v) any claim relating to your services or products, or your installation and/or use of any third-party software, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or nonproprietary right of a third party (including, without limitation, defamation, libel, or violation of privacy or publicity).
8. MISCELLANEOUS
8.1 Confidentiality
The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement. "Confidential Information" means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information include (1) information in the public domain; (2) information developed independently by a party without reference to information disclosed under this Agreement; or (3) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either Party or, but in such case, prior to disclosure, the disclosing Party shall give written notice to the other Party to permit that Party an opportunity to challenge such disclosure. If either Party is subpoenaed, such Party shall give written notice to the other Party to permit that Party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing Party, each Party shall promptly return all Confidential Information of the other Party. This provision shall survive the termination of this Agreement for two (2) years.
8.2. Notices
All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, shall be delivered by hand delivery, overnight courier service, fax, or electronic mail, shall be deemed to have been duly given when delivered.
8.3. Choice of Law and Forum
THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF ILLINOIS, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN ILLINOIS, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.
8.4. Entire Agreement
This Agreement and all policies and guidelines incorporated in this Agreement by reference constitutes the entire Agreement of the parties and may not be modified or altered orally but only by an agreement in writing signed by both parties.
8.5. No Fiduciary Relationship
No Third-Party Beneficiaries bizBaron is not the agent, fiduciary, trustee or other representative of you. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.
8.6. Assignments
You may not transfer or assign your rights, duties, or obligations under this Agreement without bizBaron's prior written consent. bizBaron may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights under this Agreement, without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assignees.
8.7. No Waiver
bizBaron's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of bizBaron's right to subsequently enforce such provision or any other provisions under this Agreement.
8.8. Severability
If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.
8.9. Survival
All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
Since the bizBaron hosting service is a reseller of HostRocket, you also agree to abide by the terms of service established by HostRocket. Click here to view HostRocket's terms of service.
|
|
|
|
|
