TERMS OF SERVICE (TOS)
These Element9 Communications (“ Element9 “) Terms of
Service (this " Agreement ") and Element9's Acceptable
Use Policy (" AUP ") govern your purchase and use of all
Element9 services (collectively, the " Services "), as
described in the Order Form(s) submitted by you and accepted by
Element9. You must register and accept the terms of this Agreement
and the AUP in order to use the Services. BY REGISTERING FOR AND
USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT
AND THE AUP AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF
THIS AGREEMENT AS WELL AS ALL POLICIES AND GUIDELINES OF THE AUP,
WHICH ARE INCORPORATED HEREIN BY REFERENCE. Element9 may modify
any of the terms and conditions contained in this Agreement and
the AUP, at any time in its sole discretion. Any modifications are
effective upon posting of the revisions on the Element9 web site
(the " Site "). Your continued use of the Services following
Element9's posting of any modifications constitutes your acceptance
of the modifications. Element9 will make all due effort to notify
customers in advance of commencement of any modifications to this
Agreement, but gives no guarantee of said notification. If you do
not agree to the terms of any modification, do not continue to use
the services and immediately notify Element9 of your termination
of this Agreement in the manner described in the Termination section
below. Term and Payment for Services.
Term. This Agreement will be for an " Term
" of 1 month from the date the Services are first provided
by Element9. This Agreement will be automatically renewed (the "
Renewal Term ") at the end of the Initial Term or any Renewal
Term for a period of thirty (30) days unless you provide Element9
with written notice of termination at least 10 days before the end
of the Initial Term or Renewal Term, whichever is then applicable.
To provide your notice of termination, you must submit an email
to the Billing department via the "Contact Us" form to
initiate the cancellation of your service.
Termination. This Agreement may be terminated: (i) by you or Element9
during any Renewal Term, without cause, by giving the other party
10 days prior written notice; (ii) by Element9 in the event of nonpayment
by you as provided in the Payment section below; and (iii) by Element9,
at any time, without notice, if, in Element9's sole judgment, you
are in violation of any terms or conditions of the AUP. If you terminate
this Agreement, or if Element9 terminates this Agreement for your
breach, before the end of the Initial Term or the Renewal Term,
whichever is then applicable, you will be required to pay immediately
all fees and costs accrued before the termination date, all monthly
recurring fees for each month remaining in the term and any other
amounts you owe to Element9 under this Agreement.
Charges. You will pay all charges for your use of the Services
at the then current Element9 prices. You are responsible for paying
all federal, state, and local sales, use, value added, excise duty
and any other taxes assessed with respect to the Services, other
than taxes based on Element9's net income.
Payment. You will pay all charges for the first month of service
in advance on the first day of the Initial Term. You will pay all
subsequent charges for Services in advance on the anniversary day
of each month according to the then current price for the Services.
You must pay for the Services by personal/business check, money
order, cashier’s check, or PayPal transfer (www.paypal.com).
Money Orders, cashier’s checks, and PayPal transfers will
be credited to the account no later than one business day after
payment was received. Personal/business checks may be held for up
to ten (10) business days before being credited to your account.
All returned checks are subject to a $35 return check fee. Your
failure to fully pay any fees and taxes within 72 hours from the
applicable due date is a material breach of this Agreement, justifying
Element9 to suspend its performance and terminate this Agreement.
If Element9 terminates for your material breach, you will be required
to pay immediately all fees and costs accrued before the termination
date, all monthly recurring fees for each month remaining in the
term and any other amounts you owe to Element9 under this Agreement.
You are responsible for any costs Element9 incurs in enforcing collection,
including reasonable attorneys' fees, court costs and collection
agency fees. To reinstate Services, you must pay for 3 months of
Service in advance on the first day such Services are reinstated
and any fees associated with reinstating Services.
Refund and Disputes. All payments to Element9 are
nonrefundable. This includes any applicable setup fees and subsequent
charges regardless of usage. All overcharges or billing disputes
must be reported within 60 days of the time the dispute occurred.
Use of Services.
Acceptable Use Policies. The
AUP governs the general policies and procedures for use of the Services.
The AUP is posted on the site (or such other location as Element9
may specify) and may be updated at any time. BY USING THE SERVICES,
YOU AGREE TO BE BOUND BY THE TERMS OF THE AUP AND ANY MODIFICATIONS
TO THE TERMS. ELEMENT9 MAY TERMINATE YOUR ACCOUNT WITHOUT NOTICE
FOR ANY VIOLATION OF THE AUP OR THIS AGREEMENT.
Domain Names. Upon registering your domain name,
you are bound by the terms of the registration service's then current
domain name policy and the policies of the national DNS registration
authorities. Element9 will not refund any fees you paid with respect
to the registration of a domain name you are unable to use. All
new web hosting accounts involving new domains will be set up and
entered into our DNS servers within 3 to 5 business days. Due to
unforeseen complications, however, this process may sometimes require
up to 7 business days. If the new domain is registered by you, there
will be no handling fee. New web hosting accounts which involve
the transfer of a domain from another provider to Element9 will
require a minimum of seven (7) days to be set up and entered into
our DNS servers. In some cases, such transfers may take up to sixty
(60) days. Due to the unpredictable nature of the transfer process,
no guarantees are made regarding the amount of time a specific transfer
may take. If the transfer of the domain is done by Element9 on your
behalf, a handling fee will be incurred. If you cancel service during
the transfer period for any reason, all charges are considered earned.
Security. You are solely responsible for any security
breaches effecting servers or accounts under your control. Distributing
account access information publicly is prohibited. If your account
is responsible for or involved in an attack on or unauthorized access
into another server or system, Element9 will shut it down immediately.
You will pay any charges resulting from the cost to correct security
breaches affecting Element9 or any of its other customers.
Intellectual Property Rights Your Warranties and Representations
to Element9. You warrant, represent, and covenant to Element9
that: (a) you are at least 18 years of age if an individual, (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,
including the AUP; and (d) your content 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.
IP Numbers. Element9 will maintain and control
ownership of all Internet protocol (" IP ") numbers and
addresses that Element9 may assign to you. Element9 may, in its
sole discretion, change or remove any and all IP numbers and addresses.
Third Party Software. Element9 may provide you
access to other third party software and/or services ("Third
Party Products ") through reseller relationships Element9 has
established with certain commercial vendors. Unless otherwise notified,
Customer understands that product support for Third Party Products
is provided by Element9 and not by the Third Party Vendor. Neither
Element9 nor any Third Party Vendor makes any representations or
warranties, express or implied, regarding any Third Party Products.
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY
PRODUCTS IS AT CUSTOMER'S SOLE RISK AND SUCH THIRD PARTY PRODUCTS
ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY
OF ANY KIND FROM Element9 OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS
OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT
OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, NEITHER Element9 NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY
RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL,
ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT.
CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE
END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT
CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND Element9
WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR
VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END
USER SUBSCRIBER AGREEMENTS.
You shall not (i) remove, modify or obscure any copyright, trademark
or other proprietary rights notices that appear on any Third Party
Product or that appear during use of any Third Party Product; or
(ii) reverse engineer, decompile, or disassemble any Third Party
Product, except and only to the extent that such activity is expressly
permitted by applicable law notwithstanding this limitation.
Enforcement Actions. Element9 reserves the right
to suspend or terminate the Service immediately or take any other
corrective action it deems appropriate in its sole discretion if
in the sole judgment of Element9 your account is the source or target
of any violation of the AUP or for any other reason which Element9
chooses. If inappropriate activity is detected, all of your accounts
in question will be deactivated until an investigation is complete.
Prior notification to you is not assured. In some cases, law enforcement
will be contacted regarding the activity. These rights of action,
however, do not obligate Element9 to monitor or exert editorial
control over the information made available for distribution via
the Services. If Element9 takes corrective action because of a possible
violation, Element9 will not refund to you any fees you paid in
advance of the corrective action.
Disclosure Rights. The AUP specifically prohibits the use of our
service for illegal activities. Therefore, you agree that Element9,
in its sole discretion, may disclose any and all of your information
including assigned IP numbers, account history, account use, etc.
to any law enforcement agent who makes a written request without
further consent or notification to you. In addition, Element9 shall
have the right to terminate all service set forth in this Agreement.
Disclaimed Warranties. Element9 exercises no control over, and accepts
no responsibility for, the content of the information passing through
Element9's host computers, network hubs and points of presence,
or the Internet. USE OF THE SERVICES OR ANY INFORMATION THAT MAY
BE OBTAINED THEREFROM IS AT YOUR OWN RISK. ALL SERVICES PERFORMED
UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT
WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE
OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. ELEMENT9 DOES NOT
MAKE AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS
OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES,
INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE
OF PERFORMANCE OR USAGE IN TRADE. ELEMENT9 DOES NOT WARRANT THAT
THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
Limitation and Exclusion of Liability.
Limitations. IN NO EVENT WILL ELEMENT9 OR ITS SUPPLIERS
HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT
OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR
DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS
OR DEVICES. NEITHER ELEMENT9 NOR ITS SUPPLIERS WILL HAVE LIABILITY
WITH RESPECT TO ELEMENT9'S OBLIGATIONS UNDER THIS AGREEMENT, OR
OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR
PUNITIVE DAMAGES EVEN IF ELEMENT9 HAS BEEN ADVISED OF THE POSSIBILITY
OF THESE DAMAGES. THE LIABILITY OF ELEMENT9 AND ITS SUPPLIERS TO
YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE
AMOUNT YOU ACTUALLY PAID TO ELEMENT9 UNDER THIS AGREEMENT DURING
THE 3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED.
THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE,
INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT
LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE
SERVICES SET BY ELEMENT9 UNDER THIS AGREEMENT HAVE BEEN AND WILL
CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY,
YOU RELEASE ELEMENT9 AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS,
LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS
Interruption of Service. Element9 and its suppliers
are not liable for any temporary delay, outages or interruptions
of the Services. Further, Element9 is not liable for any delay or
failure to perform its obligations under this Agreement, where the
delay or failure results from any act of God or other cause beyond
its reasonable control (including, any mechanical, electronic, communications
or third-party supplier failure).
Indemnification. In agreeing to the Element9 AUP and this Agreement,
you agree to indemnify, defend and hold harmless Element9, its employees,
directors, partners, representatives and affiliates, for any violation
by you or your customers of the AUP or this Agreement that results
either in loss to Element9 or the bringing of any claim against
Element9 by any third-party. For example, if Element9 is sued because
of your or your customer's activity related to the Services, you
will pay any damages awarded against Element9, its employees, directors,
partners, representatives and affiliates, plus all costs and attorney's
Element9 and you agree that, except as otherwise expressly provided
in this Agreement, the Order Form(s) or the terms and conditions
of use of any third party software products, there shall be no third
party beneficiaries to this Agreement, including but not limited
to the insurance providers for either party or your customers. THIS
AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (EXCEPT THAT BODY
OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING
FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED
NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE
VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT
SHALL BE THE STATE AND FEDERAL COURTS IN TEXAS, AND EACH PARTY IRREVOCABLY
CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS
THERETO. In the event any provision of this Agreement is held by
a tribunal of competent jurisdiction to be contrary to the law,
the remaining provisions of this Agreement will remain in full force
and effect. The waiver of any breach or default of this Agreement
will not constitute a waiver of any subsequent breach or default,
and will not act to amend or negate the rights of the waiving party.
You may not sell, assign or transfer its rights or delegate its
duties under this Agreement either in whole or in part without the
prior written consent of Element9, and any attempted assignment
or delegation without such consent will be void. Element9 may assign
this Agreement in whole or part. Element9 also may delegate the
performance of certain Services to third parties. All notices, demands,
requests or other communications required or permitted under this
Agreement shall be deemed given when delivered personally, sent
by facsimile upon confirmation, sent and received by return receipt
email, or upon receipt of delivery of overnight mail. You and Element9
are independent contractors and this Agreement will not establish
any relationship of partnership, joint venture, employment, franchise
or agency between you and Element9. This Agreement, including all
documents incorporated herein by reference, constitutes the complete
and exclusive agreement between the parties with respect to the
subject matter hereof, and supersedes and replaces any and all prior
or contemporaneous discussions, negotiations, understandings and
agreements, written and oral, regarding such subject matter.
Survival. All provisions of this Agreement relating
to your warranties, intellectual property rights, limitation and
exclusion of liability, your indemnification obligations and payment
obligations will survive the termination or expiration of the Agreement.
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