This Service Agreement ("Agreement") applies to the purchase from Digital Asset Logistics hereafter Digital Asset Logistics and its affiliates (collectively, "DAL") of all services (collectively, the "Services") selected by Customer on the Subscription Plans and other payment forms, as applicable, incorporated by reference and attached hereto, if any, except that if Customer is also ordering Web site production or consulting services, Customer is also required to sign the agreements specific to those services. DAL 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. DAL shall use reasonable efforts to notify Customer of any planned changes to DAL's network or facilities that may adversely affect the Services provided hereunder.
TERM
This Agreement shall be for the term specified by Customer on the Subscription Plans, as applicable (the "Initial Term"), This Agreement will be automatically renewed, at the end of the Initial Term, on the initial term length basis unless either party provides written notice to the other of termination of this Agreement at least 3 days prior to the end of the then current term. The Initial Term and all extensions thereof are collectively referred to herein as the "Term" of this Agreement. Dedicated Server customers are required to give 60 days written notice when terminating this Agreement.
BILLING AND PAYMENT
Fees: During the term of this Agreement, Customer shall pay the fees for the Services that are set forth on the Subscription Plans and other payment forms, as applicable. Such fees may include taxes, fees or assessments by governmental agencies and DAL 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 DAL 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. All payments shall be made in U.S. currency. Payment can be made by credit card or wire transfer. Should the account become past due for 14 days DAL reserve the right to suspend the account, DAL having sent 3 invoice reminders. In the event that an account become 18 days over due DAL reserve the right to delete the account and cannot be held responsible for any loss of information or data resulting from the deletion. Should the payment made be invalid DAL may pass any charges incurred in the processing of payment on to the client themselves Service Continuation After Initial Term: The fees set forth in the Subscription Plans 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 DAL rates for such services, without discount, determined month to month. Suspension Or Interruption Of Service For Non-Payment: In the event Customer's account becomes past due for more than thirty (30) days, or if DAL has a reasonably held belief that Customer may be unable to pay its debts as they become due (i.e., is financially insecure), DAL may, in its sole discretion, suspend, interrupt or disconnect the Services upon ten (10) days 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 DAL reasonably deems necessary in order to resume receiving the Services.
In addition, if DAL reasonably determines that Customer may be financially insecure, DAL may require such other action of Customer as DAL reasonably determines is necessary under the circumstances, including letters of credit, security deposit(s), restrictions on available credit or other action as DAL 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 DAL's request for such action within timelines reasonably set by DAL may result in immediate termination of service without further notice. Customer may not withhold or set off any payment for any reason withou t DAL's prior written consent. DAL 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 DAL Acceptable Use Policy, which is amended from time to time. The Acceptable Use Policy shall become effective upon immediate posting of the revised policy at the URL. Notwithstanding anything to the contrary contained herein, DAL 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 DAL Acceptable Use Policy. In the event DAL takes corrective action due to a violation of the DAL Acceptable Use Policy, DAL shall not refund to Customer any fees paid in advance of such corrective action.
CANCELLATION POLICY
Customer may terminate this Agreement by giving DAL at least 3 days written notice prior to the end of the current term. However, Customer remains obligated to pay all amounts remaining in the Initial Term, and if DAL 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. In order to terminate early, Customer's primary contact person on the account should notify DAL of such request to do so. However, DAL shall not be liable for unauthorized termination of an account.
Dedicated server clients are required to give 60 days notice prior to terminating the account. DAL 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 DAL will refund any fees for Services which Customer has paid in advance. DAL shall not be liable for any loss or damage caused by it's suspension or termination of this Agreement. Any termination of this agreement by DAL 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.
CACHING
Customer expressly (i) grants to DAL a license to cache the entirety of Customer's Web Site, including content supplied by third parties, hosted by DAL 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 AND/OR DISK USAGE
Customer agrees that bandwidth and/or disk usage shall not exceed the number of megabytes or gigabytes per month for the Services ordered by Customer on the Subscription Plans. DAL shall monitor the customer's usage. If bandwidth or disk usage exceeds the agreed upon number of megabytes per month, DAL, in its sole discretion, may assess additional standard charges, disconnect or discontinue any and all Services, or terminate this Agreement, in each case, upon ten (10) days advance written notice to Customer. Additional charges will not exceed $5 per Gb of data transfer per month. In the event that DAL elects to take such action, Customer shall not be entitled to a refund of any fees paid in advance of such corrective action.
EQUIPMENT
DAL is acting only as a reseller and/or provider of any hardware, circuit and equipment (collectively, the "Equipment") offered under this Agreement that was manufactured by a third party. Any malfunction or manufacturer's defects or other defects, outside the control of DAL, of Equipment either sold or provided by DAL to Customer or purchased directly by Customer used in connection with the Service(s) will not be deemed a breach of DAL's obligations under this Agreement. Any right s or remedies Customer may have regarding the performance or compliance of Equipment are limited to those rights extended to C ustomer by the manufacturer of such Equipment. Customer is entitled to use any Equipment supplied by DAL 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 there from, in violation of any applicable United States or foreign law.
DAL shall not be responsible for any changes in Service(s) outside its control 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), DAL will assist Customer in resolving any such Equipment problems over which DAL may have control.
DISCLAIMER OF WARRANTY
Customer acknowledges and agrees that DAL exercises no control over, and accepts no responsibility for, the content of the information passing through DAL's host computers, network hubs and points of presence (the "DAL Network") or the Internet. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER DAL, ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY IN FORMATION 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 DAL PROVIDES. NEITHER DAL, ITS EMPLOYEES, AFFILIATES, AGENTS, 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. DAL 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 DAL.
INDEMNIFICATION
Customer shall indemnify, hold harmless, and defend DAL and all directors, officers, employees, and agents of DAL (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 reasonable attorneys' fees) arising out of or relating to the use of the Services by Customer, including any violation of the DAL Acceptable Use Policy save where any of the same arise as a result of gross negligence or willful misconduct of the indemnified parties. Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious 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 DAL 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 LEGAL THEORY, EVEN IF DAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event will DAL's 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. Where English law does 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 cases, DAL's 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
DAL 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, sabo tage, 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, DAL 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 thirty (30) 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 DAL or any third party. 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 DAL ( collectively, "DAL Intellectual Property") is vested in DAL and/or in DAL's licensors. Unless otherwise specifically provided in this Agreement, Customer shall have no right, title, claims or interest in or to the DAL Intellectual Property. Customer may not copy, modify or translate the DAL Intellectual Property or related documentation, or decompile, disassemble or reverse engineer the DAL 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 DAL Intellectual Property in any manner without the prior written consent of DAL; provided, however, that nothing in this sentence would preclude Customer from using the DAL 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 ("Confidential Information"). Except as provided in DAL's 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 w able 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, provided that, to the extent possible, the disclosing party under this clause (f) shall give reasonable notice to the non-disclosing party prior to disclosure in order to allow such party to object to the disclosure.
Customer further agrees and acknowledges that DAL may disclose Customer account information in accordance with DAL's Privacy Policy, as amended from time to time by DAL effective upon posting of the revised policy at the URL.
CUSTOMER DATA
Customer is solely responsible for all its content residing on DAL servers, and except as otherwise agreed with DAL, for the backup and restoration of such content.
DEDICATED SERVER
"Dedicated Server" (or, "Virtual Private Server") consists of the server space and software services provided to the Customer including but not limited to the HTTP service, FTP service, SMTP service, POP service, and server add-ons.
Physical Server Set-Up and Updating. DAL will initially configure the Virtual Private Server for use. After the Virtual Private Server is configured, the Customer will be solely responsible for all Web Server content management. Maintenance Services. DAL will perform maintenance services as DAL determines reasonably necessary to maintain the continuous operation of the Virtual Private Server. Customer understands that such maintenance may require server downtime. DAL will attempt to provide prior notice of the maintenance downtime, except when circumstances beyond DAL's control limit DAL's ability to do so.
SHARED HOSTING
Server Set-Up and Updating. DAL will initially configure the Server for use. After the Server is configured, the Customer wi ll be solely responsible for all Web Server content management. Maintenance Services. DAL will perform maintenance services as DAL determines reasonably necessary to maintain the continuous operation of the Server. Customer understands that such ma intenance may require server downtime. DAL will attempt to provide prior notice of the maintenance downtime, except when circumstances beyond DAL's control limit DAL's ability to do so.
Excessive CPU Usage. Customer agrees that Customer shall not use excessive amounts of CPU processing on any of DAL's servers. Any violation of this policy may result in corrective action by DAL, in its sole reasonable discretion, including assessment of additional standard charges, disconnection or discontinuance of any and all Services, or termination of this Agreement. In the event that DAL 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. E-Commerce. Customer will be solely responsible for the development, operation and maintenance of Customer's Web site and products and all contents and materials appearing online or on Customer's products, including without limitation (a) the accuracy and appropriateness of content and materials appearing within the Web site or related to Customer's products, (b) ensuring that the content and materials appearing within the Web site or related to Customer's products do not violate or infringe upon t he rights of any third party, and (c) ensuring that the content and materials appearing within the Web site or related to Customer's products are not libelous or otherwise illegal. Customer will be solely responsible for the final calculation and application of any and all applicable shipping costs and sales taxes. Customer will also be solely responsible for accepting, processing, and filling any customer orders, and for handling any customer inquiries or complaints arising therefrom. Customer is subject to applicable data protection, intellectual property, and consumer protection laws, and is responsible for 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 Software. Customer will keep all such information confidential and will use the same degree of care and security as Customer use with Customer's confidential information.
14 DAY GUARANTEE
Customer may try out Shared Hosting risk free for fourteen (14) days. If Customer is not completely satisfied, Customer may cancel the account within fourteen (14) days of the submission of Customer's Subscription Plans and receive a full refund of any Service charges, excluding set-up and domain name registration fees DAL has collected in advance and Customer shall be under no further obligations. For security, all cancellation requests must be by the primary contact person on the account who shall provide sufficient Customer identification information. However, DAL shall not be liable for unauthorized termination of an a ccount. Any cancellation request shall be effective upon receipt.
MISCELLANEOUS GOVERNING LAW
The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of the United States.
ENFORCEMENT OF AGREEMENT
In the event it is necessary for DAL to enforce its rights under this agreement, Customer agrees to pay all fees incurred by DAL (including, but not limited to, attorney's fees and collection agency fees)
AMENDMENT OR WAIVER
Except as otherwise provided herein, this Agreement may not be amended except upon the written consent of Customer and an officer of DAL. 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 here under 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 SEVERABILITY
This Agreement shall be binding upon and inure to the benefit of Customer, DAL and DAL's respective successors, and assigns. Customer may not assign this Agreement without the prior written consent of DAL, 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 signature page hereto or via e-mail. All notices to DAL hereunder shall be given to:
Any notice hereunder shall be in writing and shall be given by registered, certified or Express mail, or reliable overnight courier addressed to the addresses in this Agreement, or by facsimile. 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 DAL MAY BE SUBJECT, IN DAL'S ABSOLUTE DISCRETION, TO SATISFACTORY COMPLETION OF A CREDIT CHECK AND CONTINUED CREDIT WORTHINESS OF CUSTOMER. ACTIVATION OF SERVICE SHALL INDICATE DAL'S ACCEPTANCE OF THIS AGREEMENT. USE OF THE DAL 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.