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Silverton Software – Web Hosting Terms of Service
Silverton Software reserves the right, in its sole discretion, to change, modify, add or remove all or part of these Terms, including but not limited to any term, applicable fee, policy, or guideline, at any time without notice or acceptance by you (“You” or “Your”), except as provided in Section 4. Regardless of whether Silverton Software has provided you individual notice, your continued use of the Service following Silverton Software’s notice or posting of changed Terms will constitute your acceptance of such changes. It is your responsibility to check regularly for changes to the Terms and ensure that any contact information you provide to Silverton Software is updated and correct.
1. SCOPE
A. If you have signed a Master Contract with Silverton Software, this Agreement is governed by that Master Contract. All terms in that Master Contract will take precedence over any conflicting terms in this Agreement.
2. DEFINITIONS
A. “Plans” means proposals for offering various services to be provided by Silverton Software, as listed in a Master Contract. “Plans” does not include the use of any trademarks owned by Silverton Software.
B. “Customer” means an end user who is utilizing services provided by Silverton Software.
3. PRICES
A. All prices for Plans provided by Silverton Software to Customer are U.S. dollars.
B. Customer shall be responsible for paying all taxes of any nature which become due with regard to Silverton Software services, except for taxes on Silverton Software’s income, irrespective of which party may be responsible for reporting or collecting such taxes.
4. ORDER ACCEPTANCE, PAYMENT
A. All orders are subject to acceptance by Silverton Software. An order will be deemed accepted by Silverton Software when written confirmation of the order is sent to Customer. Silverton Software may refuse to accept any order, or delay acceptance pending fulfillment of conditions Silverton Software may choose to impose. Such refusal or such conditions may not be unreasonable, however, and Silverton Software agrees to provide Customer with reasonable notice via Email or fax of any intent to delay or decline the acceptance of any order.
B. Payment and Terms: Payment shall be made in US dollars to Silverton Software using the method designated by Silverton Software, or as may otherwise be agreed in writing by the parties. Payments are due upon account activation and future renewal. If due to bank charges, transfer fees, or the like, Silverton Software should receive less than its invoice amount, Silverton Software will re-invoice Customer for the shortfall. Customer agrees to be bound by Silverton Software’s published Billing Policies and terms. In the event that any amount remains unpaid fifteen (15) days after presentation of invoice, Silverton Software may discontinue, withhold, or suspend services to Customer and/or its customer(s) to whom such unpaid amounts relate.
5. DUTIES OF SILVERTON SOFTWARE
Silverton Software will acquire, on request, an Internet Domain Name on behalf of the Customer. In such case the Customer hereby waives any and all claims which it may have against Silverton Software for any loss, damage, claim or expense arising out of, or in relation to, the registration of such Domain Name in any on-line or off-line network directories, membership lists or registration lists, or the release of the Domain Name from such directories or lists following the termination of services by Silverton Software for any reason. Any costs of Silverton Software in obtaining or maintaining a domain name for Customer or its customers shall be immediately reimbursed to Silverton Software upon invoice from Silverton Software to Customer.
A. ICANN Guidelines. Additionally, Customer acknowledges that
ICANN may establish guidelines, limits and/or requirements that relate to the amount and type of information that our hosting and registrar partners 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.
B. 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.
C. 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 Silverton Software 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 Silverton Software 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.
D. If Customer Has Registered a Domain Name Through A Third Party.
If Customer has registered a .com, .net, or .org domain name through a third party, or Customer asked Silverton Software to register the domain name for
Customer, Customer is bound by the domain registration policies of that registrar. For example, domains registered with Network Solutions,
Inc. (“NSI”) are subject to the agreement Customer entered into with NSI, who was then Silverton Software’s 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.
E. 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 transferred to Silverton Software and its hosting or registrar partners, 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 Silverton Software nor its hosting or registrar providers 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 Silverton Software 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 Silverton Software. Customer agrees that Silverton Software 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 Silverton Software, Silverton Software requires validation of the request from the Administrative Contact on record at the time of the transfer request. Customer authorizes Silverton Software 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, Silverton Software 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 Silverton Software or its registrar partners.
F. Third-Party Proprietary Rights: Customer shall be solely responsible for ensuring, and hereby represents and warrants to Silverton Software, 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.
G. Welcome Page. Customer consents to Silverton Software’s activation (“parking”) of the registered domain name on a “Welcome Page” containing a notice indicating the domain is reserved. Such “Welcome Page” indicates that Silverton Software registered the domain name, and links to Silverton Software’s website. This “Welcome Page” may be replaced by the Customer when the Customer contracts for Web hosting and posts Customer’s own content.
H. Domain name search process. Silverton Software endeavors to make the domain name availability search process reliable; however, Silverton Software 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, Silverton Software is not responsible if domain names requested by Customer are actually registered to third parties.
I. 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.
6. TERMS OF SERVICE
A. Server Set-Up and Updating: Silverton Software will initially configure the web server and the hosting account for use. After the hosting account is configured, Customer will be solely responsible for all account content management.
B. Maintenance Services: Silverton Software will perform maintenance services as Silverton Software determines reasonably necessary to maintain the continuous operation of the hosting account. Customer acknowledges such maintenance may require Web server and hosting account downtime, and such downtime will not count against any uptime guarantees. Silverton Software will attempt to provide prior notice of maintenance downtime except when circumstances beyond Silverton Software’s control limit Silverton Software’s ability to do so.
C. Account Usage: Customer shall not use (i) excessive amounts of
CPU processing on Customer’s Web server, or (ii) bandwidth or disk usage in excess of the monthly amount ordered. Bandwidth usage above 2000GB total per month is subject to additional fees of $1 per GB if not otherwise noted. Customer acknowledges any violation of this policy may result in corrective action by Silverton Software, in its sole discretion, including assessment of additional charges or disconnection or discontinuance of any and all Services to Customer. In the event that Silverton Software decides to take corrective action, Customer shall not be entitled to a refund of any fees paid in advance prior to such corrective action.
D. Customer shall be solely responsible for (a) the development, operation, and maintenance of Customer’s Web site and products and all content and materials appearing within the Web site or related to Customer’s products, including without limitation (i) the accuracy and appropriateness of content and materials appearing within the Web site or related to Customer’s products, (ii) ensuring that the content and materials appearing within the Web site or related to Customer’s products do not violate or infringe upon the rights of any third party,
(iii) ensuring that the content and materials appearing within the Web site or related to Customer’s products are not libelous or otherwise illegal; (b) the final calculation and application of shipping and sales tax; (c) accepting, processing, and filling any customer orders, and for handling any customer inquiries or complaints arising therefrom; and (d) the security of any customer credit card numbers and related customer information Customer may access as a result of conducting electronic commerce transactions through the Web server software.
E. IP Address Ownership: Silverton Software and/or Silverton Software’s service providers shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer by Silverton Software, and Silverton Software reserves in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
F. Caching: Customer grants Silverton Software a license to cache the entirety of Customer’s Web site (including content provided by third parties) hosted by Silverton Software, and agrees such caching is not an infringement of any of Customer’s intellectual property rights or any third party’s intellectual property rights.
7. RULES AND REGULATIONS
Silverton Software may impose reasonable rules and regulations regarding the use of its services from time to time. Customer shall impose such rules and regulations on its employees and users to the extent necessary to ensure compliance.
8. LIMITATION OF SILVERTON SOFTWARE’S OBLIGATIONS AND LIABILITY
A. Silverton Software will utilize its best efforts to maintain acceptable performance of contracted for services, but Silverton Software makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. Silverton Software cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. Silverton Software will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system. Silverton Software shall not be liable to Customer or any of its customers for any claims or damages which may be suffered by Customer or its customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-deliveries, or service interruptions whether or not caused by the fault or negligence of Silverton Software.
B. Silverton Software may discontinue servicing any Plan, or may require fulfillment of conditions Silverton Software may choose to impose as a prerequisite for continuing to service any Plan. Such discontinuation or requirement may not be unreasonable, however, and Silverton Software agrees to provide Customer with reasonable notice via Email or fax of any such intent to discontinue or impose conditions.
C. Services provided by Silverton Software to Customer shall be deemed accepted for all purposes fifteen days after activation or renewal for such services, if no written claim or objection regarding such services has been received by Silverton Software within the 15-day period. No claim related to such accepted services shall be raised.
D. Silverton Software’s liability to Customer, and any end user of any Plan or other Silverton Software services, is limited to the amount paid to and received by Silverton Software for services not accepted. In no event shall Silverton Software be liable to Customer, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if Silverton Software has been advised of the possibility of such damage.
E. Customer will take all necessary measures to preclude Silverton Software from being made a party to any lawsuit or claim regarding Silverton Software services provided to any Customer or end user. Customer hereby agrees to indemnify and hold harmless Silverton Software from any and all claims of whatever nature brought by any of Customer’s users against Silverton Software in excess of the remedy set forth in paragraph 7(D).
F. Where data backup and restoration services are a part of Silverton Software’s provisioning of a service, such services are not intended to be a comprehensive disaster recovery solution, and Silverton Software or its hosting partners will not be liable for data loss, or for damage to servers or other equipment.
9. DISPUTES
The parties shall attempt to resolve all disputes arising out of this agreement in a spirit of cooperation without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices) and other than the injunctive relief referred to in paragraph 10 shall be subject to arbitration upon written demand of either party. Arbitration shall take place in Phoenix, Arizona, or at another location if the parties so agree. The arbitration shall take place before an arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a third arbitrator and determine the third arbitrator’s compensation. Each party shall have one veto over the choice of the third arbitrator. The three arbitrators shall schedule an informal proceeding, hear the arguments, and decide the matter by secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and shall pay half of the other costs of the arbitration proceeding. Each party shall have the right to have the proceedings transcribed. The arbitrators shall not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration; the dissenting arbitrator, if any, shall not issue a dissenting opinion. Regarding each issue submitted to arbitration, the decision shall be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having jurisdiction thereof.
Should any legal action permissible under this agreement be instituted to enforce the terms and conditions of this agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney’s fees and expenses incurred at both the trial and appellate levels.
10. TERM, TERMINATION:
This agreement shall run in accordance with the term of the initial order. It shall be automatically renewed on a regular basis in accordance with the term of the initial order or subsequent change to that term unless terminated in one of the following ways:
A. By customer, by notifying Silverton Software in writing twenty (20) days prior to renewal of this agreement.
B. By Silverton Software, upon thirty (30) days’ written notice, if Customer breaches any material and substantial provision of this agreement and has not cured by the end of the 30 days.
C. By Silverton Software, upon sixty (60) days’ written notice, if
1. Silverton Software provides Customer with written notice of the specific reasons for its belief in this regard, and
2. Customer has not cured by the end of the 60 days.
D. By Silverton Software, immediately upon giving written notice to Customer, in the event that
1. Any bank draft or check delivered by Customer to Silverton Software in payment for Products is returned unpaid and Customer fails to remedy such nonpayment within five business days;
2. Customer becomes more than sixty (60) days in arrears in payment of its account with Silverton Software;
3. There are instituted bankruptcy or insolvency proceedings against Customer, which are not vacated within sixty (60) days from the date of filing;
4. Customer institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency; or
5. Customer makes an assignment of all or part of its assets for the benefit of creditors.
E. By Silverton Software immediately, if Customer attempts to assign all or any part of this Agreement without Silverton Software’s prior written approval;
F. By Silverton Software immediately, if Customer fails to inform Silverton Software in writing immediately on the happening of any event specified in this section;
G. By Customer, immediately upon giving written notice to Silverton Software, if
1. There are instituted bankruptcy or insolvency proceedings against Silverton Software, which are not vacated within sixty (60) days from the date of filing;
2. Silverton Software institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency;
3. Silverton Software makes an assignment of all or part of its assets for the benefit of creditors; or
4. Silverton Software fails to inform Customer in writing immediately on the happening of any event specified in this section.
The provisions of paragraphs 9, 12, 13, and 14 survive any termination of this agreement.
11. NONASSIGNABILITY
Customer’s rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of Silverton Software, which consent shall not be unreasonably refused.
12. PARTIAL INVALIDITY
If any provision of this agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. Silverton Software and Customer agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.
13. APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement takes effect when accepted by Silverton Software in Arizona. It is to be governed by and construed under the laws of the State of Arizona and the United States of America. The federal and state courts of the State of Arizona shall have exclusive jurisdiction to adjudicate any non-arbitral dispute arising out of this agreement. Customer hereby expressly consents to (1) the jurisdiction of the courts of Arizona and (2) service of process being effective upon it by registered mail sent to the address set forth at the beginning of this document, as may be changed from time to time by written notice actually received by Silverton Software. To the extent permissible by the law of Customer’s jurisdiction, Customer waives any requirement that service of process or of any documents be made upon it pursuant to the provisions of the Hague Convention.
14. NOTICES
Except with respect to service of process as set forth in paragraph 10, all notices may be sent by email, fax, or express mail to the email address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.
15. ENTIRE AGREEMENT; MODIFICATIONS
This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. Silverton Software may make changes to this agreement upon thirty (30) days’ written notice to Customer, advising of the change and the effective date thereof. Utilization of Silverton Software services by Customer and/or its Customers following the effective date of such change shall constitute acceptance by Customer of such change(s). Otherwise, this agreement may not be modified except by the written consent of both parties.
16. ACCEPTANCE OF SERVICES
ACCEPTANCE OF THIS AGREEMENT BY SILVERTON SOFTWARE MAY BE SUBJECT, IN SILVERTON SOFTWARE’S ABSOLUTE DISCRETION, TO SATISFACTORY COMPLETION OF A CREDIT CHECK AND CONTINUED CREDIT WORTHINESS OF CUSTOMER. ACTIVATION OF SERVICE SHALL INDICATE SILVERTON SOFTWARE’S ACCEPTANCE OF THIS AGREEMENT. USE OF SILVERTON SOFTWARE’S SERVICES 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.
Silverton Software Web Hosting Terms of Service v1.0