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General services
This Service Agreement ("Agreement") applies to the purchase from
ItsHosted.com (a registered DBA of MC Networks, Inc.) and its affiliates
(collectively, "It's Hosted") of all services (collectively, the "Services")
selected by Customer on the Service Order Form and the Domain Name
Registration Form, as
applicable, incorporated by reference and attached hereto, if any,
except that if Customer is also ordering Web site production, dedicated,
shared or collocation services, Customer is also required to sign the
agreements specific to those services. It's Hosted reserves the right to modify
its network and facilities used to provide the Services for purposes
including but not limited to accommodating evolving technology and
increased network demand, and providing enhanced services. It's Hosted shall
use reasonable efforts to notify Customer of any planned changes to the It's
Hosted network or facilities that may adversely affect the Services
provided hereunder.
Term
This Agreement shall be for the term specified by Customer on the
Service Order Form and the Domain Name Registration Form, as applicable (the "Initial Term"). Except in the
case of Dial-up customers, this Agreement will be automatically renewed,
at the end of the Initial Term, on a month to month basis unless either
party provides thirty (30) days written notice to the other of
termination of this Agreement prior to the end of the then current term.
The Initial Term and all month to month extensions thereof are
collectively referred to herein as the "Term" of this Agreement. Dial-up
Customers' contracts are on a month-to-month basis. Customers may
terminate this Agreement prior to the end of the Initial Term or any
extension thereof in accordance with the Cancellation section herein.
Billing and payment
Fees: During the term of this Agreement, Customer shall pay the fees
for the Services that are set forth on the Service Order Form and the the
Domain Name Registration Form, as applicable. In addition to such fees,
It's Hosted may charge taxes,
fees or assessments by governmental agencies and It's Hosted shall have the
right, at any time, to pass through and invoice to Customer any new or
increased taxes, fees, assessments or other charges imposed on or
required to be collected by It's Hosted by any governmental agency. Customer
shall also be responsible for paying all taxes, fees or assessments and
other charges imposed on Customer by any governmental agency that may
result from this Agreement, or any of the activities contemplated
hereunder.
Terms Of Payment: Invoices are due and payable upon receipt.
If Customer, in good faith, disputes all or any portion of an invoice,
Customer must, within fourteen (14) days of the date of the invoice, (i)
pay all undisputed amounts and (ii) provide It's Hosted with written notice of
the details of the billing dispute, together with all supporting
documentation. The parties agree to work diligently and in good faith to
resolve all billing disputes. Disputed amounts found to be properly owed
to It's Hosted shall be paid by the end of two billing cycles following
resolution of the dispute. All payments shall be made in U.S. currency.
Service
Continuation After Initial Term: The fees set forth in the Service Order
Form or Domain Name
Registration Form are guaranteed during the Initial Term of this
Agreement. If Customer continues to receive the Services after the
Initial Term without entering into a new agreement or agreement
extension, the fees charged after the Initial Term shall be at the then
standard It's Hosted rates for such services, without discount, determined
month to month.
Service Charge: Customer will pay a late payment charge
equal to 1.5% (or the highest amount permitted by law, whichever Is
lower) per month or portion thereof on the outstanding balance of any
invoice remaining unpaid thirty (30) days after the date upon which
payment is due.
Suspension Or Interruption Of Service For Non-Payment:
In the event Customer's account becomes past due for more than seven
(7) days, or if It's Hosted has a reasonably held belief that Customer may be
unable to pay its debts as they become due (i.e., is financially
insecure), It's Hosted may, in its sole discretion, suspend, interrupt or
disconnect the Services with written notice to Customer.
In the event of such suspension, interruption or disconnection, Customer
may be required to post a deposit or such other security, as It's Hosted
reasonably deems necessary in order to resume receiving the Services. Accounts
suspension or interruption resulting from Non-Payment are subject
to a $35.00 re-activation fee.
In addition, if It's Hosted reasonably determines that Customer may be
financially insecure, It's Hosted may require such other action of Customer as
It's Hosted reasonably determines is necessary under the circumstances,
including letters of credit, security deposit(s), restrictions on
available credit or other action as It's Hosted may require from time to time
regardless of Customer's then-current payment status on its account or
its payment history on such account. Failure to satisfy It's Hosted request
for such action within timelines reasonably set by It's Hosted may result in
immediate termination of service without further notice. Customer may
not withhold or set off any payment for any reason without It's Hosted prior
written consent. It's Hosted shall have no liability for any loss or damage
resulting from its suspension or termination of Services under this
Agreement.
Acceptable uses
Customer shall at all times adhere to the It's Hosted
Acceptable Use Policies, as amended from time to time by It's
Hosted effective upon posting of the revised policy on the It's Hosted
website. Notwithstanding anything to the contrary contained herein,
It's Hosted may immediately take corrective action, including
disconnection or discontinuance of any and all Services, or terminate
this Agreement in the event of notice of possible violation by Customer
of the It's Hosted
Acceptable Use Policies. In the event
It's Hosted takes corrective action due to a violation of the It's
Hosted
Acceptable Use
Policies, It's Hosted shall not refund to
Customer any fees paid in advance of such corrective action.
Subscribers of Shared or Dedicated Hosting Services shall at all
times adhere to the It's Hosted
Website Hosting Agreement, as amended
from time to time by It's Hosted effective upon posting of the revised policy
on the It's Hosted website, currently located
here. Notwithstanding anything to the contrary contained herein,
It's Hosted may immediately take corrective action, including
disconnection or discontinuance of any and all Services, or terminate
this Agreement in the event of notice of possible violation by Customer
of the It's Hosted
Website Hosting Agreement. In the event
It's Hosted takes corrective action due to a violation of the It's
Hosted
Website
Hosting Agreement, It's Hosted shall not refund to
Customer any fees paid in advance of such corrective action.
Subscribers of Co-location services shall at all times adhere to the
It's Hosted
Co-location Services Agreement, as amended
from time to time by It's Hosted effective upon posting of the revised policy
on the It's Hosted website, currently located
here. Notwithstanding anything to the contrary contained herein,
It's Hosted may immediately take corrective action, including
disconnection or discontinuance of any and all Services, or terminate
this Agreement in the event of notice of possible violation by Customer
of the It's Hosted
Co-location Services Agreement. In the event
It's Hosted takes corrective action due to a violation of the It's
Hosted
Co-location
Services Agreement, It's Hosted shall not refund to
Customer any fees paid in advance of such corrective action.
Cancellation policy
Except for Dial-up, Shared Hosting, Virtual Private Server, and
Dedicated Server customers, Customer may terminate this Agreement by
giving It's Hosted at least thirty (30) days prior written notice. However,
Customer remains obligated to pay all amounts remaining in the Initial
Term and any extension thereof, and if It's Hosted has purchased equipment on
behalf of Customer, at Customer's request or pursuant to Customer's
order, including but not limited to circuit and router, Customer shall
assume responsibility for payments for such equipment, until paid in
full. Dial-up, Shared Hosting, Virtual Private Server, and Dedicated
Server customers may terminate this Agreement as it relates to those
services by giving It's Hosted at least thirty (30) days prior written notice,
and are not obligated to pay equipment costs. In order to
terminate early, Customer's primary contact person on the account should
notify It's Hosted of such request to do so. In the case of credit card orders,
all termination requests should be signed by Customer's primary contact
person on the account who must provide the last four digits of the
credit card on file with It's Hosted. However, It's Hosted shall not be liable
for unauthorized termination of an account.
In the event that a Dial-up Customer primary account holder cancels
service, service will be cancelled immediately, and the remainder of the
monthly payment forfeited. It's Hosted reserves the right to terminate this
Agreement without cause prior to the end of the term upon sixty (60)
days written notice to Customer, in which event It's Hosted will refund any
fees for Services which Customer has paid in advance. Any termination of
this agreement by It's Hosted or Customer shall not deprive either party of its
rights or relieve either party of its obligations, in each case, as
accrued prior to the date of termination, including, without limitation,
Customer's obligation to pay for Services rendered prior to the date of
termination.
IP Address ownership
It's Hosted shall maintain and control ownership of all IP numbers and
addresses that may be assigned to Customer by It's Hosted, in
its sole discretion, the right to change or remove any and all such IP
numbers and addresses. It's Hosted is required by ARIN (American Registry
for Internet Numbers) to document on a whois server which entity is
using the IP space. If Customer is assigned a static IP address,
Customer consents to It's Hosted inclusion of Customer's name, company name
if a business, postal address, e-mail address, IP address, and telephone
number in the rwhois server. Please read our
policy regarding assignment of IP
addresses.
Caching
Customer expressly (i) grants to It's Hosted a license to cache the entirety
of Customer's Web Site, including content supplied by third parties,
hosted by It's Hosted under this Agreement and (ii) agrees that such caching is
not an infringement of any of Customer intellectual property rights or
any third party's intellectual property rights.
Bandwidth/disk space useage
Customer agrees that bandwidth and/or disk usage shall not exceed the
number of megabytes per month for the Services ordered by Customer on
the Service Order Form. It's Hosted reserves the right to monitor the
customer's usage. If bandwidth or disk usage exceeds the agreed upon
number of megabytes per month, It's Hosted, in its sole discretion, may assess
additional standard charges, disconnect or discontinue any and all
Services, or terminate this Agreement. In the event that It's Hosted elects to
take such action, Customer shall not be entitled to a refund of any fees
paid in advance of such corrective action.
Equipment
Customer acknowledges that any hardware, software, and other
equipment utilized by It's Hosted to provide the Services or supplied by
It's Hosted
to Customer for purposes of Customer receiving the Services
(collectively, the "Equipment") is and remains the property of
It's Hosted or
its licensors, subject to purchase rights, if any, specifically granted
to Customer under this Agreement. It's Hosted sole liability for any
malfunction or defect in the Equipment shall be the Service Level
Agreements, if any, referenced in this Agreement or attached hereto and
Customer's sole and exclusive remedy for such malfunction or defect
shall be the remedies set forth in such Service Level Agreements. In the
event that Customer exercises a purchase option for the Equipment,
Customer acknowledges that any rights or remedies Customer may have
regarding the performance or compliance of such purchased Equipment are
limited to warranties, if any, extended by the manufacturer of such
Equipment, to the extent that such warranties are assignable by It's
Hosted to
Customer. Customer further acknowledges that It's Hosted will have no
responsibility for any other equipment utilized by Customer to receive
the Services whether supplied by Customer or any Third Party ("Customer
Equipment"). Customer is responsible for risk of loss or damage to any
Equipment supplied by It's Hosted to Customer to enable Customer to receive the
Services and shall ensure that , during the term of this Agreement, such
Equipment is insured for full replacement value with a reputable
insurance company licensed to do business in the state in which the
Equipment is located. Customer shall operate the Equipment supplied by
It's Hosted in accordance with It's Hosted and manufacturer's guidelines. Customer is
entitled to use any Equipment supplied by It's Hosted only in connection with
Customer permitted use of the Service(s). Customer shall not resell,
transfer, export or re-export any Equipment, or any technical data
derived therefrom, in violation of any applicable United States or
foreign law and is responsible for loss of or damage to such Equipment.
It's Hosted reserves the right to substitute, change or modify the Equipment or
any software utilized to provide the Services at any time. It's Hosted
shall not be responsible for any changes in Service(s) that cause
Customer Equipment to become obsolete, require modification or
alteration, or otherwise affect the performance of the Service(s).
However, if practicable (without an obligation to expend funds or incur
additional costs), It's Hosted will assist Customer in resolving any such
Equipment problems over which It's Hosted may have control. It's
Hosted may
interrupt the Services at any time, without liability to Customer, to
perform scheduled or emergency maintenance.
It's Hosted may, in its sole discretion, take corrective action, including
assessment of additional charges, disconnection or discontinuance of any
and all Services, or termination of this Agreement, in the event
Customer engages in or commits any of the following acts:
- Alter, modify or improperly use, including violations of It's
Hosted
Acceptable Use Policy, any portion of the Equipment or software utilized
to provide the Services
- Perform or attempt to perform maintenance services on the Equipment
unless specifically requested by It's Hosted to do so.
- Attach devices or other equipment not approved by It's Hosted [or the
original manufacturer of the Equipment] to the Equipment.
- Alter or modify Customer's IP address space on any interface on the
Equipment without prior communication to It's Hosted.
In the event that It's Hosted elects to take any corrective action, Customer
shall not be entitled to a refund of any fees paid in advance prior to
such corrective action. It's Hosted shall not have any liability to Customer in
the event Customer engages in or commits any of the foregoing acts
nor shall It's Hosted be liable to Customer for any corrective action taken.
Disclaimer of warranty
Customer acknowledges and agrees that It's Hosted exercises no control over,
and accepts no responsibility for, the content of the information
passing through It's Hosted host computers, network hubs and points of
presence (the "It's Hosted Network") or the Internet. NOTWITHSTANDING ANY OTHER
ORAL OR WRITTEN COMMUNICATIONS BETWEEN It's Hosted AND CUSTOMER ABOUT OR IN
CONNECTION WITH THE SERVICES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
NEITHER It's Hosted, ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS,
SUB-CONTRACTORS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS
NOR THE LIKE MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT FOR THE SERVICES
OR ANY EQUIPMENT It's Hosted PROVIDES. SUBJECT TO ANY SERVICE LEVEL
AGREEMENTS SPECIFICALLY REFERENCED HEREIN, THE SERVICES AND EQUIPMENT
PROVIDED UNDER OR ASSOCIATED WITH THIS AGREEMENT ARE PROVIDED ON AN "AS
IS" BASIS. NEITHER It's Hosted, ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS,
SUB- CONTRACTORS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS,
LICENSORS OR THE LIKE, WARRANT THAT
THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM
MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF
THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY
INFORMATION SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE
SERVICES. It's Hosted IS NOT LIABLE FOR THE CONTENT OR LOSS OF ANY DATA
TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF
CUSTOMER'S CLIENTELE VIA THE SERVICE(S) PROVIDED BY It's Hosted.
Indemnification
Customer will indemnify, save harmless, and defend It's Hosted and all
directors, officers, employees, sub-contractors and agents of It's
Hosted (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 attorneys' fees) arising out of or relating to the
use of the Services by Customer, including any violation of the It's
Hosted
Acceptable Use Policy. Such claims shall include, but shall
not be limited to, claims based upon trademark, service mark, trade
name, copyright and patent infringement, trademark dilution, tortuous
interference with contract or prospective business relations, unfair
competition, defamation or injury to reputation, or other injuries or
damage to business.
LIMITATION OF LIABILITY IN NO EVENT SHALL It's Hosted, ITS EMPLOYEES,
AFFILIATES, AGENTS, SUPPLIERS, SUB- CONTRACTORS, THIRD-PARTY INFORMATION
PROVIDERS, MERCHANTS, OR LICENSORS (THE "It's Hosted GROUP") BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF
PROFITS, REVENUE, DATA OR USE, SUFFERED BY CUSTOMER OR ANY THIRD PARTY,
WHETHER IN AN ACTION IN CONTRACT, TORT OR STRICT LIABILITY OR OTHER
LEGAL THEORY, EVEN IF It's Hosted HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. In no event will the It's Hosted liability for any damages,
losses and causes of actions whether in contract or tort (including
negligence or otherwise) exceed the actual amount paid by Customer for
the Service which gave rise to such damages, losses and causes of
actions during the 12-month period prior to the date the damage or loss
occurred or the cause of action arose. Some jurisdictions do not allow
the exclusion or limitation of warranties or incidental or consequential
damages, or the limitation of liability with respect to death or
personal injury due to negligence, so that the above limitations or
exclusions may not apply to Customer. In such jurisdictions, It's Hosted
liability (and the liability of its affiliates, agents, content
providers and service providers) shall be limited to the greatest extent
permitted by applicable law.
Force majeure
It's Hosted shall not be liable for failure or delay in performing its
obligations hereunder if such failure or delay is due to circumstances
beyond its reasonable control, including, without limitation, acts of
any governmental body, war, insurrection, sabotage, embargo, fire,
flood, strike or other labor disturbance, breakdown or damage to
machinery, equipment or software, malfunctioning of software, corruption
of data, interruption of or delay in transportation, unavailability of
or interruption or delay in telecommunications or third party services,
failure of third party software or inability to obtain raw materials,
supplies, or power used in or equipment needed for provision of the
Services. In the event of such a Force Majeure, the party shall give the
other party prompt written notice within ten (10) days of the Force
Majeure. If any such event continues for a continuous period of 14
(14) days, Customer may terminate this Agreement.
Intellectual property
Customer represents and warrants that Customer's use of the Services
shall not infringe the intellectual property or other proprietary rights
of It's Hosted or any third party. Please read the
Notice and Procedure for Making Claims of Copyright Infringement. Customer further acknowledges that all
right, title and interest in any and all technology, including the
software, that is part of or provided with the Services and any
trademarks or service marks of It's Hosted or third parties utilized in
connection with the Services (collectively, "It's Hosted Intellectual
Property") are vested in It's Hosted and/or in It's Hosted licensors. Unless
otherwise specifically provided in this Agreement, Customer shall have
no right, title, claims or interest in or to the It's Hosted Intellectual
Property. Customer may not copy, modify or translate the It's Hosted
Intellectual Property or related documentation, or decompile,
disassemble or reverse engineer the It's Hosted Intellectual Property, to use
it other than in connection with the Services, or grant any other person
or entity the right to do so. Unless otherwise specifically provided in
this Agreement, Customer is not authorized to distribute or to authorize
others to distribute the It's Hosted Intellectual Property in any manner
without the prior written consent of It's Hosted; provided, however, that
nothing in this sentence would preclude Customer from using the It's
Hosted
Intellectual Property as incorporated in the Services. This paragraph
shall not operate to extinguish, restrict, vary, waive or affect in any
manner whatsoever any right, title or interest which Customer may now
have or hereafter acquires in, or in relation to, the third-party
software that is part of or provided with the Services solely to the
extent such third-party licensors publicly provide such rights, title or
interest in the third-party software to Customer.
Confidential information
Each party acknowledges that, in the course of the performance of
this Agreement, it may have access to customer information and
communications, including proprietary information claimed to be unique,
secret, or confidential, and which constitutes the exclusive property
and trade secrets of the other party or third parties ("Confidential
Information"). Except as provided in It's Hosted Acceptable Use Policy (AUP),
each party agrees to maintain the confidentiality of the Confidential
Information and to use the Confidential Information only to the extent
necessary for legitimate business uses in connection with this
Agreement. Upon request of either party or on termination or expiration
of this Agreement, each party shall return the Confidential Information
of the other party then in its possession. Nothing in this Agreement
shall prohibit or limit either party's use of information which (a) is
now, or hereafter becomes, publicly known or available through lawful
means; (b) is rightfully in receiving party's possession, as evidenced
by receiving party's records; (c) is disclosed to the receiving party
without confidential or proprietary restriction by a third party who
rightfully possesses and rightfully discloses the information; (d) is
independently developed by the receiving party without any breach of
this Agreement; (e) is the subject of a written permission to disclose
provided by the disclosing party; or (f) is required to be disclosed by
law, court order or request by any government or regulatory authority.
Customer further agrees and acknowledges that It's Hosted may disclose
Customer account information in accordance with It's Hosted
Privacy Policy, as amended from time to time by
It's Hosted
effective upon posting of the revised policy at the URL.
SPAM Policy
Any It's Hosted customer willfully responsible for Sourced Spam or for Caused
Spam will be charged $5.00(us), payable immediately, for each email message in
either the Sourced Spam or Caused Spam. We further reserve the right to
terminate the network services of any customer responsible for either
Sourced Spam or Caused Spam. To report violations of
this policy please forward the offending message(s), with internet headers
to abuse@itshosted.com.
SPAM Policy Definitions
-
Excessive Volume: More than 250 email messages in a 24-hour period where
prior written approval from Internet NYC (a registered DBA of MC Networks,
Inc. and its affiliates (collectively, "It's Hosted") has not been obtained.
- Unsolicited Email Message: Any email message that falls under 1 or more
of the following categories:
- "Chain" letters: Commercial solicitations where no prior commercial
relationship exists and where religious, philosophical, or charitable
solicitations or fliers where the recipient has not previously initiated
communication.
- Sourced Spam: Each and every Unsolicited Email Message that is sent
through a single It's Hosted supplied email account whenever that single email
account originates an Excessive Volume.
- Caused Spam: Each and every
Unsolicited Email Message sent in an Excessive Volume by any party over
any network to any party, which advertises or mentions a site hosted by an
It's Hosted customer on the It's Hosted’s network, whenever directly caused by the
actions of a It's Hosted customer.
Customer data
Customer is solely responsible for all its content residing on It's
Hosted
servers, and except as otherwise agreed with It's Hosted, for the backup and
restoration of such content.
Domain name registration
A. Registrar Services. It's Hosted has entered into an agreement with
an accredited domain name registrar, Enom to provide Customer with
domain name registration services; for any requests by Customer to It's
Hosted
to register, or renew an Internet domain name or transfer a domain name
from another registrar to the It's Hosted registrar. As
consideration for the domain name registration services provided by Enom
to Customer, on behalf of It's Hosted, Customer agrees to pay It's
Hosted, prior to
the effectiveness of the desired domain name registration or renewal,
the then-current amounts set forth in the It's Hosted price schedule for the
initial registration of the domain name and, should Customer choose to
renew the registration, subsequent renewals of the registration.
All fees are non-refundable, in whole or in part, even if Customer's
domain name registration is suspended, cancelled or transferred prior to
the end of Customer's then current registration term. It's Hosted reserves the
right to change fees, surcharges, renewal fees or to institute new fees
at any time, for any reason, at its sole discretion. Customer's
requested domain name will not be registered or renewed unless and until
It's Hosted receives actual payment of the initial registration fee and/or
renewal fee, and has confirmed Customer's registration in an email from
It's Hosted to the email address for the Administrative Contact indicated in
Customer's registration application and/or on file.
B. Renewal. Customer must ensure that all renewal fees are
paid when due; provide accurate contact information to It's Hosted; agree to
existing terms & conditions; and follow all other procedures as It's
Hosted may indicate
in the renewal notification that It's Hosted will send to Customer's
email address on record at the time the renewal notification is sent.
Any failure to follow all required procedures shall be at Customer's
sole risk. Should these renewal fees go unpaid within the time specified
in a second notice or reminder regarding renewal, Customer's
registration may be cancelled. Payment must be made by credit card or
such other method as It's Hosted may indicate in the registration application
or renewal form. It's Hosted will renew Customer's name for Customer provided
Customer's credit card or other billing information is available and up
to date, unless Customer instructs It's Hosted otherwise within the time
specified. If Customer's billing information is not accurate and
Customer wishes to renew Customer's domain name registration, It's
Hosted will
contact Customer to update this information and charge Customer
accordingly.
C. Cancellation; Reinstatement. In the event of a chargeback
by a credit card company (or similar action by another payment provider
allowed by It's Hosted) in connection with the payments of the registration
fees or renewal for Customer's domain name registration, Customer agrees
and acknowledges that the domain name registration shall be transferred
to It's Hosted as the paying entity for that registration to the registry and
that It's Hosted reserves all rights regarding such domain name including,
without limitation, the right to make the domain name available to other
parties for purchase. It's Hosted will reinstate Customer's domain name
registration solely at It's Hosted discretion, and subject to It's
Hosted receipt
of the initial registration or renewal fee and It's Hosted current
reinstatement fee of $160.00.
D. Transfer. Customer will be responsible for all costs and
fees associated with the registration of Customer's domain name
including, but not limited to, all costs and fees for moving or
transferring such domain name. Under no circumstances shall It's Hosted be
responsible for this cost.
E. Use of Personal Information; Updated Information. Enom
and/or It's Hosted will collect certain personal information (including,
without limitation, contact information such as name, address, email
address and telephone number) ("Personal Information") from Customer
during the registration process. Customer agrees and acknowledges that Enom will share Personal Information that Customer provides (or that is
gathered about Customer during the registration process, including, for
example, Customer's primary domain name server and the like), or that
Enom or It's Hosted otherwise maintains, with one another, with ICANN, with
registry administrator(s), and with other third parties as ICANN and
applicable laws and/or policy may require or permit. Customer
further agrees and acknowledges that Enom and/or It's Hosted shall be
permitted (and in some cases may be required) to make publicly
available, or directly available to third party vendors, some, or all,
of the Personal Information or domain name registration information
Customer provides, for purposes of inspection (such as through It's
Hosted WHOIS service) or for
targeted marketing and other purposes as required or permitted by ICANN
and applicable laws. Customer may access Customer's Personal Information
and/or domain name registration information in MelbIT's or It's Hosted
possession to review, modify or update such information, through
Customer's Control Panel/Domain Manager. It's Hosted will not process data
about any identified or identifiable natural person that It's Hosted obtains
from Customer in a way incompatible with the purposes and other
limitations which It's Hosted describes in this Agreement. Enom will take
reasonable precautions to protect the information it obtains from
Customer from loss, misuse, unauthorized access or disclosure,
alteration or destruction. Customer hereby irrevocably waives any and
all claims and causes of action Customer may have arising from such
disclosure or use of Customer's Personal Information and/or domain name
registration information by Enom or It's Hosted.
F. ICANN Guidelines. Additionally, Customer acknowledges that
ICANN may establish guidelines, limits and/or requirements that relate
to the amount and type of information that Enom or It's Hosted may or must make
available to the public or to private entities, and the manner in which
such information is made available. Customer hereby consents to any and
all such disclosures and use of, and guidelines, limits and restrictions
on disclosure or use of, information provided by Customer in connection
with the registration of a domain name (including any updates to such
information), whether during or after the term of Customer's
registration of the domain name.
G. Third Party Data. In the event that, in registering the
domain name, Customer is providing information about a third party,
Customer hereby represents that Customer has (1) provided notice
to that third party of the disclosure and use of the party's information
as set forth in this Agreement, and (2) that Customer has obtained that
third party's express consent to the disclosure and use of that party's
information as set forth in this Agreement.
H. Accuracy of Data. Customer acknowledges that willfully
providing inaccurate information or willfully failing to update
information promptly will constitute a material breach of this Agreement
and will be sufficient basis for cancellation of Customer's domain name
registration. (In addition, under certain federal laws, such provision
of inaccurate or false information is one factor in determining whether
Customer may have violated the trademark rights of another party in
registering a domain name confusingly similar to such party's
trademark.) Customer is responsible for notifying It's Hosted in writing of
changes in its contact information. In addition, Customer agrees that
Customer's failure to respond for over fifteen (15) calendar days to
inquiries by Enom and/or It's Hosted concerning the accuracy of contact details
associated with Customer's registration shall constitute a material
breach of this Agreement and will be sufficient basis for cancellation
of Customer's domain name registration.
I. If Customer Has Registered a Domain Name Through
It's Hosted
Before January 10, 2000. If Customer has registered a .com, .net, or
.org
domain name through It's Hosted prior to January 10, 2000, and Customer asked
It's Hosted to register the domain name for Customer, such domain names are
subject to the agreement Customer entered into with Network Solutions,
Inc. ("NSI"), who was then It's Hosted exclusive provider of domain name
registration services. By applying for the domain name and through the
use or continued use of the domain name, the applicant agrees to be
bound by the terms of NSI's domain name policy (the "NSI Policy") which
is available at: http://www.networksolutions.com/legal/service-agreement.html.
J. Domain Name Transfers. If Customer has requested that the
domain name registrar of record for Customer's domain name(s) (as
identified by
Customer during the registration process) be changed to It's Hosted, the
following terms shall apply:
In making the transfer request, Customer represents and warrants
that:
- Customer is the rightful holder of the registration for the domain
name(s) that Customer seeks to transfer.
- Customer is not in default with respect to any obligations that
Customer owes to the current registrar of record.
- Customer is not the subject of any pending bankruptcy proceeding, nor
is Customer a party to any dispute concerning the use or registration of
the domain name(s).
- The domain name(s) are not currently the subject of any dispute or
collection effort, including any attachment, levy, lien, garnishment,
escrow or other proceedings.
- Customer is authorized to request the transfer and to enter into this
Agreement.
- More than 60 days have passed since the domain name(s) was registered,
transferred to a new registrar, or renewed. CUSTOMER MAY NOT
TRANSFER A DOMAIN NAME TO A NEW REGISTRAR WITHIN 60 DAYS OF INITIAL
REGISTRATION, OR ANY SUBSEQUENT TRANSFER OR RENEWAL.
Customer agrees that neither It's Hosted nor Enom will have any
responsibility for any obligations that Customer may owe to the current
registrar of record for the domain name(s) Customer seeks to transfer,
and that Customer will be responsible, pursuant to the indemnification
provision herein, for any costs that It's Hosted or Enom may incur in resolving
any claims brought by any third party (including the current registrar
of record) relating to this transfer. Customer will not be entitled to a
refund or credit for any amounts that Customer may have paid to the
current registrar of record. Upon the completion of the transfer
process, however, the term of Customer's registration will be extended
by the period for which Customer has paid It's Hosted. Customer agrees that
It's Hosted may charge Customer an additional maintenance fee in order to
maintain Customer's domain name for any term carried over from the
current registrar of record. Upon receipt of a request to transfer a
domain name from another registrar (losing registrar) to It's Hosted and Enom ,
It's Hosted requires validation of the request from the Administrative Contact
on record at the time of the transfer request. Customer authorizes
It's Hosted and Enom to take all actions reasonably necessary to transfer the
domain name(s), including contacting and
updating Customer's registration information with the current registrar
of record and the registry. Except as noted above, Enom and It's Hosted will
treat Customer's transfer request as an initial domain name registration
and will provide all subsequent domain name services in accordance with
the terms and conditions herein. The term "register" or "registration,"
as used in this Agreement, shall be read to include the transfer of a
domain name registration from Customer's current registrar of record to Enom .
K. Third-Party Proprietary Rights: Customer shall be solely
responsible for ensuring, and hereby represents and warrants to It's
Hosted,
that Customer's domain name does not infringe upon any trademark, trade
names, service mark or other proprietary rights owned by a third party.
Customer agrees to be bound by the terms of the dispute policy adopted
by the domain name registry, and related agreements that Customer will
be asked to review and indicate Customer's acceptance of during the
domain name registration process. In the case of gTLDS (global Top Level
Domains, including but not limited to .com, .net,.org, .biz, and .info),
the dispute policy is the ICANN Domain Name Dispute Policy, which is
posted at http://www.icann.org/udrp.
L. Welcome Page. Customer consents to
It's Hosted activation
("parking") of the registered domain name on a "Welcome Page" containing
a notice,
"Welcome to the Future Website of domain name." Such "Welcome Page"
indicates that It's Hosted registered the domain name, and links to It's
Hosted
Websites. This "Welcome Page" may be replaced by the Customer when the
Customer contracts for Web hosting and posts Customer's own content.
M. Domain name search process. It's
Hosted endeavors to make the
domain name availability search process reliable; however, It's Hosted does not
guarantee availability of domain names or the accuracy or security of
the WHOIS system. The registration process is not complete until the
domain name requested by Customer has been registered in Customer's name
with the appropriate registry. Because there are delays in the actual
registration of a domain name with the appropriate registry, It's Hosted is not
responsible if domain names requested by Customer are actually
registered to third parties.
N. If Customer has registered a .CO.UK domain name, Customer
must also agree to NOMINET UK's terms and conditions, currently posted
at
http://www.nominet.org.uk/nominet-terms.html .
Miscellaneous and governing law.
The validity, interpretation, enforceability, and performance of this
Agreement shall be governed by and construed in accordance with the laws
of the State of Colorado.
Enforcement of agreement
In the event it is necessary for It's Hosted to enforce its rights under
this agreement, Customer agrees to pay all fees incurred by It's Hosted
(including, but not limited to, attorney's fees and collection agency
fees)
Amend or waiver
Except as otherwise provided herein, this Agreement may not be
amended except upon the written consent of Customer and an officer of
It's Hosted. No failure to exercise and no delay in exercising any right,
remedy, or power hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, remedy, or power hereunder
preclude any other or further exercise thereof or the exercise of any
other right, remedy, or power provided herein or by law or in equity.
The waiver by any party of the time for performance of any act or
condition hereunder shall not constitute a waiver of the act or
condition itself.
Assignment and serverability
This Agreement shall be binding upon and inure to the benefit of
Customer, It's Hosted and It's Hosted respective successors, and assigns. Customer
may not assign this Agreement without the prior written consent of It's
Hosted,
which consent will not be unreasonably withheld or delayed. If any
provision of this Agreement shall be held by a court of competent
jurisdiction to be invalid, unenforceable, or void, the remainder of
this Agreement shall remain in full force and effect.
Notices
All notices to Customer hereunder shall be given at the Billing
Address provided on the Service Order Form. All notices to It's Hosted
hereunder shall be given to:
M.C. Networks Inc.
91 Elmwood Street
Plainview, NY 11803
Any notice hereunder shall be in writing and shall be given by
registered, certified or Express mail, or reliable overnight courier
addressed to It's Hosted at the address above and to Customer at the address
provided in the Service Order Form; or by facsimile to It's Hosted via the
above facsimile number and to Customer via the facsimile number provided
in the Service Order Form; or by e-mail to the Customer at the e-mail
address provided on the Service Order Form. In addition to notice to the
above address, Customer must provide notice of its intention to
terminate this Agreement by either providing the appropriate data
online, by emailing a request for cancellation, or by mailing (by one of
the means described in this section) a cancellation request to
Termination Review, It's Hosted, 91 Elmwood Street, Plainview, NY 11803.
Notice shall be deemed to be given upon the earlier of actual receipt or
three (3) days after it has been sent, properly addressed and with
postage prepaid.
Entire agreement
This Agreement, and any other document or agreements specifically
identified in this Agreement, supercedes all previous representations,
understandings or agreements.
Survival
The rights and obligations of the parties in this Agreement
that would by their nature or context be intended to survive the
expiration or termination of this Agreement shall so survive.
ACCEPTANCE OF SERVICES ACCEPTANCE OF THIS AGREEMENT BY IT'S HOSTED MAY BE
SUBJECT, IN IT'S HOSTED ABSOLUTE DISCRETION, TO SATISFACTORY COMPLETION OF A
CREDIT CHECK AND CONTINUED CREDIT WORTHINESS OF CUSTOMER. ACTIVATION OF
SERVICE SHALL INDICATE IT'S HOSTED ACCEPTANCE OF THIS AGREEMENT. USE OF THE
IT'S HOSTED NETWORK CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. CUSTOMER
REPRESENTS AND WARRANTS THAT CUSTOMER HAS FULL AUTHORITY AND RIGHT TO
ENTER INTO THIS AGREEMENT. CUSTOMER FURTHER REPRESENTS AND WARRANTS THAT
CUSTOMER IS AT LEAST 18 YEARS OF AGE, AND THAT CUSTOMER IS NOT LOCATED
IN A COUNTRY SUBJECT TO U.S. EMBARGOES, OR LISTED ON THE U.S.
TREASURY DEPARTMENT'S LIST OF SPECIALLY DESIGNATED NATIONALS, OR LISTED
ON U.S. COMMERCE DEPARTMENT'S DENIED PERSONS LIST OR ENTITIES LIST.
*Last Revised 2/8/07
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