This Service Agreement
(“Agreement”) applies to the purchase of all Services and Products ordered
by the Client (“Client”) specified on the Order Form.
MICRO-SERV reserves the right to amend its Service offerings and add,
delete, suspend or modify the terms and conditions of the Services at any time,
and to determine whether and when any such changes apply to both existing and
future customers.
The
Client shall pay the fees and other charges for each Service as provided in the
Order Form. MICRO-SERV reserves the
right to change rates by notifying the Client sixty (60) days in advance of the
effective date of the change; provided that MICRO-SERV shall not change the
rates during the term of any term commitment. Service charges shall be invoiced
in accordance with the terms and conditions set forth herein and in the Service
Order Form. The Client 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 (“Due Date”). Accounts
unpaid thirty (30) days after the Due Date may have Service suspended or
terminates. Such suspension or
termination shall not relieve the Client of the Client’s obligation to pay the
monthly fee. The Client agrees to
pay MICRO-SERV its reasonable expenses, including attorney’s fees and
collection agency fees, incurred in enforcing its rights under this Agreement.
The Client shall pay all federal, state, and local sales, use, value
added, excise, duty and any other taxes assessed with respect to the Services
and the sale of hardware, software or equipment to the Client, except that taxes
based on MICRO-SERV’s net income shall be the responsibility of MICRO-SERV
This
Agreement shall be for the term specified by the Client on the order form. This Agreement will be automatically renewed at the end of
the initial term for the same term specified by the Client on the order form
unless the Client provides sixty (60) days written notice to MICRO-SERV of
termination of this Agreement.
The
Client shall at all times adhere to the MICRO-SERV acceptable use policy located
at http://www.micro-serv.com
as amended from time to time by MICRO-SERV effective upon positing of the
revised policy at the URL. MICRO-SERV
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 the Client of the MICRO-SERV Acceptable Use
Policy. MICRO-SERV shall not refund
to the Client any fees paid in advance of such corrective action.
CANCELLATION
POLICY
In
the event of early cancellation of the Agreement by the Client prior to the end
of the term specified in the Order Form, MICRO-SERV shall not refund to the
Client any fees paid in advance of such cancellation and the Client will be
required to pay any applicable cancellation fee specified in the Order Form.
For security, all cancellation requests must be signed by the primary
contact person on the account who must provide the last four digits of the
credit card on file with MICRO-SERV. Any
cancellation request shall be effective upon receipt, unless another date is
specified in such cancellation request. Any cancellation by MICRO-SERV or the Client shall not
relieve the Client of any obligations to pay fees accrued prior to such
cancellation.
MICRO-SERV
shall maintain and control ownership of all IP numbers and addresses that may be
assigned to the Client by MICRO-SERV and MICRO-SERV reserves, in its sole
discretion, the right to change or remove any and all such IP numbers and
addresses.
The
Client expressly grants to MICRO-SERV a license to cache the entirety of the
Client’s Web Site, including content supplied by third parties, hosted by
MICRO-SERV under this Agreement and agree that such caching is not an
infringement of any of the Client’s intellectual property rights or any third
parties intellectual property rights.
The
Client agrees that the Client shall not use excessive amounts of CPU processing
on any of MICRO-SERV’s servers. Any
violation of this policy may result in corrective action by MICRO-SERV, in its
sole discretion, including assessment of additional charges, disconnection or
discontinuance of any and all Services, or termination of this Agreement.
In the event the MICRO-SERV elects to take any corrective action, the
Client shall not be entitled to a refund of any fees paid in advance or prior to
such corrective action.
DOMAIN
NAME REGISTRATION
The
Client shall be responsible for all costs and fees associated with the
registration of the Client’s domain name including, but not limited to, all
costs and fees for moving such domain name.
Under no circumstances shall MICRO-SERV be responsible for this cost.
MICRO-SERV makes no representations concerning and does not guarantee
that the Client’s domain name does not infringe upon any trademarks, trade
names, Service marks, or other proprietary rights owned by a third party.
The Client agrees to be bound by the terms of InterNIC’s current domain
name policy which is available at: http://www.networksolutions.com/legal/Agreement.html. The inability to use a domain name shall not entitle the
Client to a refund by MICRO-SERV of any fees paid with respect to the
registration of such usable domain name.
E-COMMERCE
The
Client will be solely responsible for the development, operation and maintenance
of the Client’s online store and products and all contents and materials
appearing online or on the Client’s products, including without limitation;
the accuracy and appropriateness of content and materials appearing within the
store or related to the Client’s products, ensuring that the content and
materials appearing within the store or related to the Client’s products do
not violate or infringe upon the rights of any third party, and ensuring that
the content and materials appearing within the Client’s store or related to
the Client’s products are not libelous or otherwise illegal.
The Client will be solely responsible for accepting, processing, and
filling any customer orders, and for handling any customer inquiries or
complaints arising therefrom.
The
Client is also responsible for the security of any customer credit card numbers
and related customer information the Client may access as a result of conducting
electronic commerce transactions through the software.
The Client will keep all such information confidential and will use the
same degree of care and security as the Client uses with the Client’s
confidential information.
SECURITY
The
Client acknowledges that MICRO-SERV does not guarantee network security or
prevent security incidents.
The
Client acknowledges that as a part of the Service MICRO-SERV may change the
security configuration or suspend the Client’s Service without notice upon the
occurrence of security problems. The
Client agrees not to hold MICRO-SERV liable for any such change or
disconnection.
MICRO-SERV
may, in its sole discretion, take corrective action, including assessment of
additional charges, disconnection or discontinuance of any and all Services, or
termination of this Agreement, in the event the Client engages in or commits any
of the following acts: alter, modify or improperly use, including violations of
MICRO-SERV’s Acceptable Use Policy, any portion of the hardware, software or
equipment.
The
Client acknowledges and agrees that MICRO-SERV exercises no control over, and
accepts no responsibility for, the content of the information passing through
MICRO-SERV’s host computers, network hubs and points of presence or the
Internet.
MICRO-SERV MAKES NO WARRANTY 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
MICRO-SERV PROVIDES. NEITHER MICRO-SERV, 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 SERVICED OR MERCHANDISE CONTAINED IN OR PROVIDED
THROUGH THE SERVICES. MICRO-SERV IS
NOT LIABLE FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM THE CLIENT
OR STORED BY THE CLIENT OR ANY OF THE CLIENT’S CUSTOMERS VIA THE SERVICE(S)
PROVIDED BY MICRO-SERV.
INDEMNIFICATION
The
Client will indemnify, save harmless, and defend MICRO-SERV and all employees,
officers, directors and agents of MICRO-SERV (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 attorney’s fees) threatened,
asserted, or filed by a third party against any of the indemnified parties
arising out of or relating to the use of the Services, including any violations
of the MICRO-SERV Acceptable Use Policy.
LIMITATION
OF LIABILITY
IN
NO EVENT SHALL MICRO-SERV BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, BY THE CLIENT
OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR STRICT LIABILITY
OR OTHER LEGAL THEORY, EVEN IF MICRO-SERV HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
In no event will MICRO-SERV’s liability for any damages, losses and
causes of actions whether in contract or tort (including negligence or
otherwise) exceed the actual dollar amount paid by the Client 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.
In
the event the customer places their own equipment in Micro-Serv’s facilities,
then Micro-Serv’s liability for such equipment is limited to the replacement
value of such equipment. Micro-Serv
will not have any liability for the loss of data or programs.
MICRO-SERV
shall not be liable for failure of delay in performing its obligations hereunder
if such failure or delay is due to circumstances beyond its reasonable control,
including, without limitation, acts of any governmental body, war, insurrection,
sabotage, embargo, fire, flood, strike, or other labor disturbance, interruption
of or delay in transportation, unavailability, 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 equipment needed
for the provision of the Services.
The
validity, interpretation, enforceability, and performance of this Agreement
shall be governed
by and construed in accordance with the laws of the Commonwealth of Virginia.
AMENDMENT
OR WAIVER
Except
as otherwise provided herein, this Agreement may not be amended except upon the
written consent of the Client and MICRO-SERV.
No failure to exercise and no delay in exercising any right, remedy, or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, or power hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, or power
provided herein or by law or in equity. The
waiver by any party of the time for performance of any act or condition
hereunder shall not constitute a waiver of the act or condition itself.
This
Agreement shall be binding upon and inure to the benefit of the Client,
MICRO-SERV and our respective successors, and assigns.
The Client may not assign this Agreement without the prior written
consent of MICRO-SERV. 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 effect.
This
Agreement, and any other documents or Agreements specifically identified in this
Agreement, supercedes all previous representations, understandings or
Agreements.
ACCEPTANCE OF THIS AGREEMENT BY MICRO-SERV MAY BE SUBJECT, IN MICRO-SERV’S ABSOLUTE DISCRETION, TO SATISFACTORY COMPLETION OF A CREDIT CHECK, ACTIVATION OF SERVICE SHALL INDICATE MICRO-SERV’S ACCEPTANCE OF THIS AGREEMENT. USE OF THE MICRO-SERV NETWORK CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. THE CLIENT REPRESENTS AND WARRANTS TO HAVE FULL AUTHORITY AND RIGHT TO ENTER INTO THIS AGREEMENT AND THAT THERE ARE NO CONFLICTING CLAIMS RELATING TOP THE RIGHTS GRANTED BY THIS AGREEMENT. THE CLIENT FURTHER REPRESENTS AND WARRANTS THAT THE CLIENT IS AT LEAST 18 YEARS OF AGE.