Hosting Ventures, LLC./no monthly.com Service Agreement
IMPORTANT – READ CAREFULLY: This Service Agreement ("Agreement") is a legally enforceable agreement between you (either an individual or a single entity) ("you") and Hosting Ventures, LLC./NOMONTHLY.com ("NOMONTHLY"). This Agreement applies to all Web site design, programming, hosting, connectivity, Internet domain management, support and maintenance services and other products and services (including without limitation the Hardware and Software as defined in this Agreement), provided to you by NOMONTHLY and/or its affiliates or licensors (the "Services"). By accessing and using the Services, you represent and warrant that you are at least 18 years of age, have full authority and legal capacity to enter into this Agreement and agree to be bound by the terms of this Agreement. ACCEPTANCE OF THIS AGREEMENT BY NOMONTHLY MAY BE SUBJECT, IN NOMONTHLY'S ABSOLUTE DISCRETION, TO SATISFACTORY COMPLETION OF A CREDIT CHECK. ACTIVATION OF SERVICE WILL INDICATE NOMONTHLY'S ACCEPTANCE OF THIS AGREEMENT.
The Services are being provided to you on a non-exclusive basis. You may use the Services only for your personal use. Any other use of the Services is strictly prohibited. You may not sell, lease, assign, sublicense or otherwise transfer, in whole or in part, this Agreement, the Services or any license or right granted hereunder, except as approved by NOMONTHLY in writing. Any attempted assignment or transfer in violation of this Section will be null and void. NOMONTHLY reserves the right to amend its Service offerings and to add, delete, suspend or modify the terms and conditions of the Services, at any time without notice or liability to you.
2. HARDWARE AND SOFTWARE
A. Hardware and Software. In connection with the Services, NOMONTHLY may provide to you the right to access and use one or more dedicated Web servers ("Servers") and related hardware owned or leased by NOMONTHLY and located at one or more facilities of NOMONTHLY or its lessors (collectively "Hardware"). NOMONTHLY may also provide to you the right to access and use certain software (the "Software"), including without limitation the proprietary Control Panel (CP) management software (the "NOMONTHLY Software") as well as NOMONTHLY customized third-party operating and Internet software ("Third Party Software"), such as customized PHP, Perl, Apache, and Red Hat Linux, as NOMONTHLY may in its sole discretion deem appropriate, for your use in conjunction with the Server(s). Your right to use the Hardware and Software is expressly conditioned on your continued purchase of the Services and compliance with the terms of this Agreement.
B. Restrictions on CPU Processing. You agree that you will not use excessive amounts of CPU processing, as determined by NOMONTHLY in its sole discretion, on any of NOMONTHLY's servers. You further agree that transfer rate, sometimes also referred to as "bandwidth," and disk space usage will not exceed the number of megabytes per month for the Services ordered by you on the NOMONTHLY.com Sign Up Page or as subsequently otherwise ordered by you. The transfer rate and disk space usage will be monitored and measured by NOMONTHLY. Any violation of the restrictions in this paragraph may result in corrective action by NOMONTHLY, in its sole discretion, including assessment of additional charges, disconnection or discontinuance of any or all Services, or termination of this Agreement. No such corrective action will entitle you to a refund of amounts previously paid or will relieve you of your obligations to pay for the balance of the then-current term of this Agreement.
C. License to Use Software. Subject to the terms of this Agreement and any third party licenses, NOMONTHLY hereby grants you the non-exclusive, worldwide, right and license to use, display and perform the Software, in object code format only, solely on the Servers during the term of this Agreement. With respect to any Third Party Software to be licensed hereunder, you will comply, and will cause all third parties gaining access to the Hardware, Software or Services through you to comply, with the terms and conditions of all applicable third-party license agreements. If NOMONTHLY, in its sole discretion, installs or otherwise provides updates, enhancements, upgrades or new releases of NOMONTHLY Software or Third Party Software, those modifications will also be deemed Software licensed to you hereunder for use on the Servers and will be subject to all terms and conditions hereof.
D. Cancellation Policy for Third Party Purchases. You agree that all Third Party Software purchases are final. Any Third Party Software purchased through the Control Panel (CP) or otherwise, must be cancelled within three (3) days to qualify for a refund. All refunds are at NOMONTHLY's sole discretion and will be reviewed on a case-by-case basis.
E. Changes to Hardware and Software. NOMONTHLY reserves the right to substitute, change, upgrade, or modify the Hardware or Software at any time. NOMONTHLY will not be responsible for any changes in such Hardware or Software that cause any of your hardware or software to become obsolete, require modification or alteration, or otherwise affect your access to or use of the Hardware, Software or Services.
F. Server Access. During the term of this Agreement, NOMONTHLY will provide you with administrative rights necessary for the updating of Web sites and other of your files hosted on the Server(s). You will be responsible at your own expense to obtain and maintain all computer hardware, software, and communications facilities, other than the Software, necessary to enable you to communicate with the Servers.
G. No Other Software. You will not install or attempt to install, or permit others to install or attempt to install, any operating, hosting automation or Internet connectivity software, or interfaces, enhancements or upgrades thereto or to the Software, on the Server(s) without NOMONTHLY's prior written consent. Failure to permit upgrades to the Third Party Software or alterations made by you to certain Third Party Software including Apache, PHP (including building support into Apache Linux Kernel upgrades), system libraries, or MySQL upgrades may adversely affect Server performance. Any and all costs for work required to remedy corruption to data, damage to Hardware or Software, or other harm resulting from installation, modification or deletion of any software or other files by you will be your sole responsibility, and you will indemnify NOMONTHLY in full for same. Without limiting the generality of the foregoing, you agree that installation, modification or deletion of files that results in or contributes in any way to any outage or damage to any Hardware, Software or Services will result in liability to you for technical support costs at a rate of $150 per hour until the issue caused by the activity is resolved to NOMONTHLY's sole satisfaction. Under no circumstances will NOMONTHLY be required to provide any support with respect to any software or other files installed, modified or deleted by you with or without NOMONTHLY's consent.
H. Acceptable Use Policies. You will comply, and cause all third parties gaining access to the Hardware, Software or Services through you to comply, with NOMONTHLY's then-current acceptable use and other policies (collectively, "Acceptable Use Policies"), as they may be amended by NOMONTHLY from time to time and which are available through NOMONTHLY's Web site at http://www.nomonthly.com
. In the event of any conflict between such Acceptable Use Policies and any terms and conditions of this Agreement, this Agreement will govern. NOMONTHLY reserves the right to lock out, suspend or shut down any domains or Web sites that violate any Acceptable Use Policy. No such corrective action will entitle you to a refund of amounts previously paid or will relieve you of your obligations to pay for the balance of the then-current term of this Agreement.
3. SUPPORT SERVICES
During the term of this Agreement, NOMONTHLY will provide you, free of additional charge, reasonable access by telephone and/or the Internet to NOMONTHLY's technical staff during NOMONTHLY's regular business hours (up to a maximum of two (2) hours per month) for consultation in the use of the Hardware, Software and Services. All such support is provided on an "as is", "where is" basis, and NOMONTHLY makes no warranties with respect to such support. Any technical information you provide to NOMONTHLY in connection with its support services may be used by NOMONTHLY for product support and development; provided, however, that NOMONTHLY will not use such technical information in a form that personally identifies you.
4. ADDITIONAL TERMS FOR DOMAIN NAME REGISTRATION
A. Registrar Services. NOMONTHLY has entered into an agreement with an accredited domain name registrar, BulkRegister, Inc. ("BulkRegister") to provide you with domain name registration services, for any requests by you to NOMONTHLY to register an Internet domain name. As consideration for the domain name registration services provided by BulkRegister to you, on behalf of NOMONTHLY, you agree to pay NOMONTHLY, prior to the effectiveness of the desired domain name registration, the then-current amounts set forth in the NOMONTHLY price schedule for the initial registration of the domain name and, should you choose to renew the registration, subsequent renewals of the registration. To view the current rates for using NOMONTHLY's domain name services, please see NOMONTHLY's PRICE SCHEDULE at http://www.nomonthly.com/index.php/solutions
All domain name registration fees are nonrefundable, in whole or in part, even if your domain name registration is suspended, canceled or transferred prior to the end of your then-current registration term. NOMONTHLY reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion. Your requested domain name will not be registered unless and until NOMONTHLY receives actual payment of the registration fee, and has confirmed your registration in an e-mail from NOMONTHLY to the e-mail address indicated in your registration application.
B. Cancellation; Reinstatement. You acknowledge and agree that any domain name which NOMONTHLY and/or BulkRegister may register for you is a product of this Agreement and of the agreement between NOMONTHLY and BulkRegister for your use during the term of this Agreement with respect to each domain respectively. Any deletion of a domain name and/or a refund or a chargeback by a credit card company (or similar action by another payment provider) in connection with the payments of the registration fee for your domain name registration without the explicit written consent of NOMONTHLY will constitute a material breach of this Agreement. Hence, you agree and acknowledge that in the event of cancellation the domain name registration will be transferred back to NOMONTHLY as the paying entity for that registration to the registry and that NOMONTHLY reserves all rights regarding such domain name including, without limitation, the right to make the domain name available to other parties for purchase. NOMONTHLY will reinstate your domain name registration solely at NOMONTHLY's discretion, and subject to its receipt of the initial registration or renewal fee and NOMONTHLY's then-current reinstatement fee.
C. Renewal. Renewal of domain names that are registered through NOMONTHLY and actively hosted will be processed automatically and billed to your account unless you instruct NOMONTHLY otherwise with sixty (60) days written notice before the renewal due date. If you are no longer hosted with NOMONTHLY or choose to not have your domain set to automatic renewal you will be sent renewal notices and will be responsible for contacting NOMONTHLY with a credit card to process the payment and renewal of your domain. You agree that you are solely responsible for maintaining current, accurate credit card and billing information for your account and domain name. If your billing information is not accurate and you wish to renew your domain name registration, you agree that you will contact NOMONTHLY to update this information and that NOMONTHLY may charge you accordingly.
D. Domain Name. NOMONTHLY makes no representations concerning and does not guarantee that your domain name does not infringe upon any trademarks, trade names, service marks or other proprietary rights owned by a third party. You agree to be bound by the terms of Bulkregister's Domain Name Registration Agreement, Bulkregister's Domain Name Dispute Policy, and related agreements that you will be asked to review and you will be asked to indicate your acceptance of during the domain name registration process.
E. Use of Personal Information; Updated Information. BulkRegister and/or NOMONTHLY will collect certain personal information (including, without limitation, contact information such as name, address, e-mail address and telephone number) ("Personal Information") from you during the domain name registration process. You agree and acknowledge that BulkRegister and NOMONTHLY will share Personal Information that you provide (or that is gathered about you during the registration process, including, for example, your primary domain name server and the like), or that BulkRegister or NOMONTHLY otherwise maintains, with one another, with the Internet Corporation for Assigned Names and Numbers ("ICANN"), with registry administrator(s), and with other third parties as ICANN and applicable laws and/or policy may require or permit. You further agree and acknowledge that BulkRegister and/or NOMONTHLY will 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 you provide, for purposes of inspection (such as through BulkRegister's WHOIS service) or for targeted marketing and other purposes as required or permitted by ICANN and applicable laws. You also agree to allow NOMONTHLY to contact you directly regarding promotions, general announcements and other communications. You may access your Personal Information and/or domain name registration information in BulkRegister's or NOMONTHLY's possession by a request in writing or by e-mail to NOMONTHLY to review, modify or update such information. You agree not to contact BulkRegister directly. NOMONTHLY will not process data about any identified or identifiable natural person that NOMONTHLY obtains from you in a way incompatible with the purposes and other limitations described in this Agreement. NOMONTHLY, and BulkRegister, pursuant to its agreement with NOMONTHLY, will take reasonable precautions to protect the information it obtains from you from loss, misuse, unauthorized access or disclosure, alteration or destruction. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of your Personal Information and/or domain name registration information by BulkRegister or NOMONTHLY.
F. ICANN Guidelines. Additionally, you acknowledge that ICANN may establish guidelines, limits and/or requirements that relate to the amount and type of information that BulkRegister or NOMONTHLY may or must make available to the public or to private entities, and the manner in which such information is made available. You hereby consent to any and all such disclosures and use of, and guidelines, limits and restrictions on disclosure or use of, information provided by you in connection with the registration of a domain name (including any updates to such information), whether during or after the term of your registration of the domain name.
G. Third Party Data. In the event that, in registering the domain name, you are providing information about a third party, you hereby represent that you have (i) provided notice to that third party of the disclosure and use of the party's information as set forth in this Agreement, and (ii) that you have 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. You acknowledge 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 your domain name registration. (In addition, under certain federal laws, such provision of inaccurate or false information is one factor in determining whether you may have violated the trademark rights of another party in registering a domain name confusingly similar to such party's trademark.) You further agree that your failure to respond for over fifteen (15) calendar days to inquiries by NOMONTHLY concerning the accuracy of contact details associated with your registration will constitute a material breach of this Agreement and will be sufficient basis for cancellation of your domain name registration.
I. Registration Before December 13, 1999. If you have registered a .com, .net, or .org domain name through NOMONTHLY.com prior to December 13, 1999, and you asked NOMONTHLY to register the domain name for you, such domain names are subject to the agreement you entered into with Network Solutions, Inc. ("NSI"), who was then NOMONTHLY.com'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 registration service agreement and related policy (the "NSI Policy") which is available at: http://www.networksolutions.com/legal/agreement.html
5. PROPRIETARY RIGHTS
The Hardware, Software and all related documentation will be and remain the exclusive property of NOMONTHLY or applicable third-party licensors. You will not take any action inconsistent with any such party's title thereto. The Software is protected under the copyright laws of the United States and equivalent international laws and treaties. You may not modify or copy, or allow anyone else to modify or copy, all or any part of the Software. You will not, and will not permit any third party gaining access to the Software or Services through you to, remove any copyright, government-restricted rights or other proprietary notices or legends included on or in the Software or Services as provided to you, or to reverse engineer, disassemble or de-compile all or any part of the Software or Services, or attempt to do so.
6. IP ADDRESS OWNERSHIP
A. Generally. NOMONTHLY will maintain and control ownership of all IP numbers and addresses that may be assigned to you by NOMONTHLY, and NOMONTHLY reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses. You will maintain and control ownership of all IP numbers and addresses that have otherwise been assigned to you. All domain names and Uniform Resource Locator addresses (URLs) assigned to you, by NOMONTHLY or otherwise, will be owned by you. NOMONTHLY will provide reasonable cooperation at your reasonable request (subject to prior payment of all amounts due and payable hereunder), in the reassignment at your expense of such domains and URLs to such other IP numbers and addresses as you or your authorized registrar or Internet service provider may designate.
B. WHOIS Information. NOMONTHLY may be required by the American Registry for Internet Numbers (ARIN) to document on a WHOIS server which entity is using the IP space. If you are assigned a static IP address, you consent to NOMONTHLY's inclusion of your name, company name (if a business), postal address, e-mail address, IP address, and telephone number, and if requested, contact information for administrative, technical, or billing contacts for you, in the WHOIS server. NOMONTHLY will promptly remove such information from the WHOIS server upon termination of your assignment of such IP address.
7. CLIENT CONTENT
A. Responsibility for Client Content. You are solely responsible for the hosted Web sites and all materials, data, works of authorship and other content thereon or otherwise generated by you or your licensors and content providers that is used, displayed, or transmitted using or through the Hardware, Services or Software (collectively, the "Client Content"), and except as otherwise agreed with NOMONTHLY as part of the Services, for the backup and restoration of such Client Content. You represent and warrant to NOMONTHLY that nothing in the Client Content is scandalous or libelous and that the Client Content does not, and NOMONTHLY's access to such Client Content as provided herein will not, infringe or otherwise violate any patent, copyright, trademark, trade secret, confidentiality, privacy or other proprietary right of any third party. To the extent that you are offering and/or selling products or services ("Client Products") on your Web site, you will be solely responsible for the calculation and application of shipping and sales tax to such Client Products. You will also be solely responsible for accepting, processing, and filling any customer orders, and for handling any customer inquiries or complaints arising therefrom.
B. Ownership. Except as otherwise provided in this Agreement, all right, title and interest in and to the Client Content will remain vested in you and your licensors or content providers. Notwithstanding the foregoing, NOMONTHLY will be entitled to access, view, monitor and otherwise deal with the Client Content as necessary or appropriate for NOMONTHLY to perform its obligations hereunder, enforce the terms of this Agreement or the Acceptable Use Policies, or to cooperate with any investigation, inquiry or other activity by any governmental or quasi-governmental agency. You expressly (i) grant to NOMONTHLY and to NOMONTHLY's contractors and designees, a license to cache and to backup the entirety of your Web site, including all Client Content hosted by NOMONTHLY under this Agreement, and (ii) agree that such caching or backup is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
8. COMPLIANCE WITH LAW
In performing your obligations and exercising your rights hereunder (including without limitation in accessing and using the Hardware, Software and Services), you will comply, and will cause all third parties gaining access to the Hardware, Software or Services through you to comply, with all present and future federal, state and local laws, rules, regulations and orders, including without limitation all present and future laws and regulations relating to protection of intellectual property and privacy. Further, you agree not to use, except as expressly authorized in this Agreement, or disclose any information which is confidential or proprietary to NOMONTHLY (including, without limitation, the Software) without the express written consent of NOMONTHLY.
A. Domain Name Registration Services. Domain name registration services will be for the term indicated on the registration application. Domain name registration agreements will be renewed and terminated on the terms indicated above ("Additional Terms for Domain Name Registrations"), and in the Domain Name Registration Agreement, Domain Name Dispute Policy and related agreements that you will be asked to review and must agree to during the registration process.
B. Other Services. For all Services other than domain name registration services, this Agreement will be for the term specified by you on the NOMONTHLY.com Sign Up Page or otherwise with respect to each domain you establish. With regard to such other Services, this Agreement will be automatically renewed at the end of the initial term or renewal term for the same term specified by you on the NOMONTHLY.com Sign Up Page or otherwise unless you provide not less than thirty (30) days written notice to NOMONTHLY of nonrenewal of this Agreement.
C. Termination. Termination of this Agreement by you during the initial term or any renewal term will not relieve you of your obligation to pay for the balance of that term. Notices of termination or non renewal should be sent to email@example.com
For accurate processing and to reduce the possibility of "spoofing", any termination or non renewal notice from you will set forth the host (Server) name and the effective date of termination, and will be accompanied by a copy of your (or your authorized representative's) driver's license or other government-issued photo identification.
D. Default. NOMONTHLY may terminate this Agreement immediately (i) upon a material breach of this Agreement by you (including without limitation a breach of any Acceptable Use Policy), (ii) if you cease to actively conduct business, become insolvent, make a general assignment for the benefit of creditors, file for bankruptcy or have a petition of bankruptcy filed against you, (iii) in the event of a prohibited assignment or transfer of this Agreement, or a substantial change in ownership, control, or operation of you (if you are an entity), or (iv) as otherwise provided in Sections 2.B, 2.H, and 11.B of this Agreement. Termination by NOMONTHLY pursuant to the terms of this paragraph will not entitle you to a refund of amounts previously paid or relieve you of your obligations to pay all applicable fees for the balance of the term.
10. EFFECT OF TERMINATION
Upon termination of this Agreement, you will immediately discontinue all use of the Hardware, Software and Services. Upon your written request and subject to your prior payment of all amounts due and owing hereunder, and further subject to the provisions of Section 11.B on disposition of information on Servers returned to inventory for non-payment, NOMONTHLY will return to you the Client Content, including all files constituting the hosted Web sites and the content thereof, as well as your data stored in NOMONTHLY's databases (but not such databases or Software itself), in such media or formats as NOMONTHLY may deem appropriate in its sole discretion.
11. BILLING AND PAYMENT
A. Fees and Payment Terms. You will pay the fees and other charges for each Service provided to you by NOMONTHLY as provided in the NOMONTHLY pricing and plans statement or standard schedule of prices, as the same may be amended from time to time. NOMONTHLY reserves the right to change rates by notifying you thirty (30) days in advance of the effective date of the change. Service fees and charges will be invoiced in accordance with the schedule set forth in the Sign Up Page and NOMONTHLY's pricing and plans statement. All payments will be made in U.S. currency. You 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.
B. Effect of Nonpayment. If you fail to make any payment when due hereunder, in addition to the other remedies available to NOMONTHLY, NOMONTHLY will be entitled in its sole discretion to suspend or discontinue providing any or all of the Services, or to take any action with respect to the Hardware and Software and the Client Content thereon that NOMONTHLY deems appropriate. Such suspension or termination will not relieve you of your obligation to pay the fees and charges due or for the balance of the then-current term. Without limiting the generality of the foregoing, NOMONTHLY may take any one or more of the following measures (subject to applicable law):
For accounts 7 days past due Ð Disable root Remote/SSH/telnet/ftp access/Control Panel Access
For accounts 14 days past due Ð Disconnect Server from network
For accounts 21 days past due Ð Erase all Client Content and return Servers to inventory
Any information stored on Servers returned to inventory will be the sole and exclusive property of NOMONTHLY, and may be deleted, overwritten, or otherwise disposed of in NOMONTHLY's discretion. NOMONTHLY may require you to post a deposit or such other security as NOMONTHLY reasonably deems necessary in order to resume access and use of to the Hardware, Software or Services hereunder. The remedies set forth in this paragraph will be not be enforced with respect to a non-payment based on a disputed invoice, provided that you (i) notify NOMONTHLY in writing of the basis for the dispute, on or before the applicable due date, and (ii) timely pay the invoiced amount that is not in dispute.
C. Collection Costs. You agree to pay NOMONTHLY its reasonable expenses, including attorney's fees and court costs, incurred in enforcing its rights under this Agreement. You will pay all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services and the provision of the Hardware and Software to you, except that taxes based on NOMONTHLY's net income will be the responsibility of NOMONTHLY.
12. FORCE MAJEURE
NOMONTHLY will 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 you or any third party accessing the Hardware, Software or Services through you (whether or not such access is authorized by you), acts of God, acts of any governmental body, acts of war or terrorism, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability or interruption or delay in telecommunications or third party services, malfunctioning of software or hardware, corruption of data, or inability to obtain raw materials, supplies, or power used in or Software needed for provision of the Services.
13. DISCLAIMER OF WARRANTY
A. No Warranties. To the extent permitted by applicable law, neither NOMONTHLY, its affiliates or their respective employees, agents, suppliers, lessors, contractors or licensors make any warranties of any kind, express or implied, including, without limitation, warranties of title, noninfringement, merchantability or fitness for a particular purpose, with respect to the Hardware, Software or Services, and all such Hardware, Software and Services are provided on an "as is" basis. None of such parties warrant that access to or use of the Hardware, Software or Services will be interrupted or error free; nor do any of them make any warranty as to the results that may be obtained from the use thereof or as to the accuracy, reliability or content of any information serviced or merchandise contained in or provided through the Hardware, Software or Services. NOMONTHLY is not liable for the Client Content or for any data transferred to or from you or stored by you or others on or via the Hardware, Software or Services.
B. Disclaimer of Certain Damages. In no event will NOMONTHLY or its officers, directors, employees, agents, affiliates, suppliers, lessors, contractors, licensors or the like be liable to you or any third party for any indirect, incidental, special, consequential or punitive damages (including without limitation damages for loss of profits, revenue, data or use), whether in an action in contract, tort, strict liability or other legal theory, even if such party has been advised of the possibility of such damages.
C. Sole Remedy. NOMONTHLY's sole responsibility, and your sole remedy, in connection with any malfunction or defect in the Hardware, the Software, or the Services will be reperformance of the affected Services. NOMONTHLY may interrupt your access to and use of the Hardware, Software or Services (including, without limitation, Internet connectivity) at any time, without liability to you, to perform scheduled or emergency maintenance. NOMONTHLY will use reasonable commercial efforts to conduct scheduled maintenance during off-hours and to minimize disruptions and interruptions to you.
D. Limitation of Liability. In no event will NOMONTHLY's liability to you or any third party hereunder exceed the actual dollar amount paid by you for the Service which gave rise to such liability during the 12-month period prior to the date of the event giving rise to such liability.
E. CONSUMER RIGHTS. FOR PERSONAL, FAMILY OR HOUSEHOLD USE OF THE SERVICES, SOME STATES AND PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND REMEDIES; YOU MAY ALSO HAVE OTHER RIGHTS AND REMEDIES WHICH ARISE FROM OPERATION OF LAW AND VARY FROM STATE TO STATE OR PROVINCE TO PROVINCE.
You will indemnify, defend and hold harmless NOMONTHLY, its affiliates and their respective officers, directors, shareholders, employees, agents and contractors (collectively "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including without limitation reasonable attorneys' fees and court costs) arising out of or relating to (a) the use of the Hardware, Software or Services by you, your agents and any third parties gaining access to the Hardware, Software or Services through you (whether or not such access is authorized by you), (b) the Client Products and/or the sale or provision thereof, (c) any breach of any of your representations, warranties or covenants in this Agreement, or (d) your acts or omissions or the acts or omissions of your agents or third parties gaining access to the Hardware, Software or Services through you (whether or not such access is authorized by you).
You will comply, and will cause all third parties gaining access to the Hardware, Software or Services through you to comply, with all export or re-export restrictions and regulations imposed by the government of the United States. Without limiting the generality of the foregoing and regardless of any disclosure made by you to NOMONTHLY of an ultimate destination of the Services, you will not re-export or transfer, whether directly or indirectly, the Hardware, Software or Services, to anyone outside the United States of America without first obtaining a license from the U.S. Department of Commerce or any other agency or department of the United States Government, as required.
16. U.S. GOVERNMENT RESTRICTED RIGHTS
All NOMONTHLY products and documentation are commercial in nature. The Software and Services are "Commercial Items", as that term is defined in 48 C.F.R. ¤2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are defined in 48 C.F.R. ¤252.227-7014(a)(5) and 48 C.F.R. ¤252.227-7014(a)(1), and used in 48 C.F.R. ¤12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. ¤12.212 and 48 C.F.R. ¤227.7202-1 through 227.7202-4 and other relevant sections of the Code of Federal Regulations, as applicable, the Software and Services are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this Agreement. Manufacturer is Alabanza Corporation, 10 East Baltimore Street, Suite 1000, Baltimore, MD 21202.
17. ADDITIONAL NOTICES
A. Electronic Communications Privacy Act. Pursuant to the Electronic Communications Privacy Act of 1986, 18 U.S.C. ¤2510 et seq., notice is hereby given that there are no facilities provided by the Services for sending or receiving private or confidential electronic communications. All messages will be deemed to be readily accessible to the general public. Do not use the Services for any communication which the sender intends only the sender and the intended recipient(s) to read.
B. Monitoring of Activities. The Hardware, Software and Services are for the use of authorized users only. Individuals using the Hardware, Software and/or Services without authority, or in excess of their authority, are subject to having all of their activities on the Hardware, Software and/or Services monitored and recorded by NOMONTHLY personnel. In the course of monitoring individuals improperly using this Hardware, Software or Services, or in the course of maintenance, the activities of authorized users may also be monitored. Anyone using the Hardware, Software and/or Services expressly consents to such monitoring and is advised that if such monitoring reveals possible criminal activity, NOMONTHLY personnel may provide the evidence of such activity to law enforcement officials in accordance with applicable laws.
C. Reporting. To comply with applicable laws and lawful requests from government and law enforcement authorities, or to protect NOMONTHLY and its customers, NOMONTHLY reserves the right to access and disclose any information it deems necessary or appropriate, including, without limitation, the contents of personal and other electronic communications passing through NOMONTHLY's servers. NOMONTHLY will cooperate fully with law enforcement authorities in investigations of suspected violations of law. NOMONTHLY reserves the right to report to law enforcement authorities any suspected illegal activity of which it becomes aware.
D. Reservation of Rights. NOMONTHLY reserves the right to retain one or more temporary or permanent copies of all Client Content determined to violate any law or Acceptable Use Policy or otherwise deemed to constitute harassment and/or to contain offensive material.
E. Digital Millennium Copyright Act. In providing the Services, NOMONTHLY is acting as a "service provider" as that term is defined in The Digital Millennium Copyright Act of 1998, 17 U.S.C. ¤ 512(k)(1). In connection therewith, posted at http://www.nomonthly.com/index.php/acceptable_use_policy
are Procedures for Making Claims of Copyright Infringement and for Making a Counter Notification Regarding a Claim of Copyright Infringement.
18. ENTIRE AGREEMENT
This Agreement, together with any other document or agreements specifically identified in this Agreement, represents the entire agreement between the parties, and supersedes all previous representations, understandings or agreements.
19. AMENDMENT; WAIVER
The terms of this Agreement may be amended from time to time by NOMONTHLY. All such amendments will be posted on NOMONTHLY's website located at http://www.nomonthly.com
and will be effective ten (10) days after such posting. You hereby acknowledge that you will be solely responsible for monitoring NOMONTHLY's Web site for such amendments and agree to be bound by same. No failure to exercise and no delay in exercising any right, remedy, or power hereunder will operate as a waiver thereof, nor will 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 in this Agreement or by law or in equity. The waiver by any party of the time for performance of any act or condition hereunder will not constitute a waiver of the act or condition itself.
20. GOVERNING LAW/JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to its conflicts of law provisions. The exclusive jurisdiction and venue for any disputes arising out of this Agreement shall be the federal or state courts located in Baltimore, Maryland, and you hereby consent to personal jurisdiction and venue therein.
21. WAIVER OF JURY TRIAL
Each of you and NOMONTHLY hereby knowingly, voluntarily and intentionally waive the right to a trial by jury in respect of any claim based hereon, arising out of, under or in connection with this Agreement or the relationship between you and NOMONTHLY, and agree that no party will seek to consolidate any such action with any other action in which a jury trial cannot be or has not been waived. This waiver constitutes a material inducement for NOMONTHLY to accept this Agreement.
22. NO THIRD PARTY BENEFICIARIES
The provisions set forth in this Agreement are for the sole benefit of the parties hereto and their successors and permitted assigns, and they will not be construed as conferring any rights on any other persons.
If any provision of this Agreement will be held illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions hereof will not be affected thereby. It is expressly understood and agreed that each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, indemnification or exclusion of damages or other remedy is intended to be enforced as such. Further, it is expressly understood and agreed that in the event any remedy under this Agreement is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages or other remedies will remain in effect.
All notices from you to NOMONTHLY must be in writing and sent by registered or certified mail, return receipt requested, or international equivalent, or by facsimile or electronic mail (receipt confirmed).