Terms of Service (TOS)
1.
Order, Acceptance and
Service.
a)
When
Accepted by Peer 1 Dedicated Hosting, Inc. ("PEER 1"), the Order submitted by
Customer creates a contract between Customer and PEER 1, consisting of the
Order, the applicable Service Description and these Terms of Service. An Order
is "Accepted" by PEER 1 when (i) with respect to Orders submitted
online, PEER 1 provides Services in response to the Order or bills Customer for
payment and (ii) with respect to Orders reduced to writing and signed on an
approved PEER 1 form, when an authorized representative of PEER 1 executes and
delivers such form signed by Customer.
b)
PEER
1 will provide, and Customer will purchase and pay for, the Services specified
in the Order for the service fees specified in the Order and the applicable
Service Description (The "Service
Fees").
c)
In
connection with any Hosting Services, if Customer's actual bandwidth usage in
any month exceeds the limit in the Service Description, Customer will pay PEER
1 such additional fees as may be specified in the Service Description.
2.
Fees, Taxes and Payment. Customer will pay to
PEER 1 the Service Fees in the manner set forth in the Order. PEER 1 may
increase the Service Fees (a) in the manner permitted in the Service
Description and (b) at any time on or after expiration of the Initial Term by
providing ten (10) days prior written notice thereof to Customer. The Service
Fees do not include any applicable sales, use, revenue, excise or other taxes
imposed by any taxing authority with respect to the Services or any software
provided hereunder (excluding any tax on PEER 1's net income). All such taxes
will be added to PEER 1's invoices for the Service Fees as separate charges to
be paid by Customer. All fees are fully earned when due and non-refundable when
paid. Unless otherwise specified, invoices for the Service Fees and related
charges shall be due and payable within 30 days after the date of the invoice.
If any invoice is not paid within 45 days after the date of the invoice, PEER 1
may charge Customer a late fee of $15 for such invoice; in addition any amounts
payable to PEER 1 not paid when due will bear interest at the rate of one and
one half percent (1.5%) per month or the maximum rate permitted by applicable
law, whichever is less. Delinquent accounts may be suspended at PEER 1's sole
discretion. In the event of a suspension of the Services, upon a reactivation
request by Customer, Customer shall pay PEER 1 a reactivation fee of $50.00 in
addition to full payment of the outstanding balance due. Reactivation of
services will only be performed during PEER 1's normal business hours (Monday
through Friday, 9:00 am - 6:00 p.m., Eastern Time, excluding holidays.) If PEER
1 collects any payment due at law or through an attorney at law or under advice
therefrom or through a collection agency, or if PEER 1 prevails in any action
to which the Customer and PEER 1 are parties, Customer will pay all costs of
collection, arbitration and litigation, including, without limitation, all
court costs and PEER 1's reasonable attorneys' fees. If any Customer payment is
returned for insufficient funds, PEER 1 will impose a processing charge of $25.
If two or more Customer payments are returned for insufficient funds in any 6
month period, PEER 1 in its sole discretion may require alternative payment
methods for all future Customer payments including, without limitation, credit
card, money order, or cashier's check or bank wire.
3.
Term and Termination.
a)
Hosting
Services will commence on the Effective Date indicated in the Order and
continue for the duration of the Initial Term. Thereafter, the Order will
automatically renew for a successive Term, on the same terms as the Initial
Term unless the Order is earlier terminated in accordance with its terms or either party gives written
notice to the other party of non-renewal at least 30 days prior to expiration
of the then-current term.
b)
Either
party may terminate this Agreement immediately upon the occurrence of any one
or more of the following events: (i) the other party breaches any material term
or provision of this Agreement, and if capable of cure, such breach remains
uncured 30 days after the non-breaching party gives written notice thereof to
the breaching party; or (ii) the other party becomes insolvent, makes an assignment
for the benefit of its creditors, institutes or becomes subject to any
proceeding under any bankruptcy or similar laws for the relief of debtors, or
seeks the appointment of, or becomes subject to the appoint of, any trustee or
receiver for all or any portion of such party's assets.
c)
PEER
1 may terminate this Agreement: (i) if the Services are prohibited by
applicable law, or become impractical or unfeasible for any technical, legal or
regulatory reason, by giving Customer as much prior notice as reasonably
practicable or (ii) immediately by giving written notice to Customer, if PEER 1
determines in good faith that Customer's use of the Customer Dedicated Hosting
Services or the Customer Content violates the Acceptable Use Policy.
d)
Upon
termination of this Agreement for any cause or reason whatsoever, neither party
shall have any further rights or obligations under this Agreement, except as
expressly set forth herein. The provisions of Sections 3(d), 4, 8, 10, 11, 13 and 15 of this
Agreement shall survive the expiration or termination of this Agreement for any
cause or reason whatsoever, and, notwithstanding the expiration or termination
of this Agreement, the parties shall each remain liable to the other for any
indebtedness or other liability theretofore arising under this Agreement.
Termination of this Agreement and retention of pre-paid fees and charges shall
be in addition to, and not be in lieu of, any other legal or equitable rights
or remedies to which PEER 1 may be entitled.
e)
With
respect to the Hosting Plans, Customer will pay the Termination Charge as
provided in the Service Description. The parties agree that the Termination
Charge constitutes consideration for PEER 1's time, effort and expense in
preparing and reserving the capacity to perform its obligations hereunder, as
actual damages are difficult to ascertain. If Customer terminates the Order in
accordance with Sections 3(b), 3(c)
If PEER 1 terminates the Order in accordance with Section
12(c),
PEER 1 shall return to Customer, and Customer shall accept, as Customer's sole
and exclusive remedy for PEER 1's breach of the Order, any Service Fees paid in
advance by Customer hereunder attributable to Services not yet rendered as of
the date of termination.
4.
Customer's Representations and Warranties. Customer hereby
represents and warrants to PEER 1, and agrees that during the Term Customer
will ensure that: (a) Customer is the owner or valid licensee of the Customer
Content and each element thereof, and Customer has secured all necessary licenses,
consents, permissions, waivers and releases for the use of the Customer Content
and each element thereof, including without limitation, all trademarks, logos,
names and likenesses contained therein, without any obligation by PEER 1 to pay
any fees, residuals, guild payments or other compensation of any kind to any
Person; (b) Customer's use, publication and display of the Customer Content
will not infringe any copyright, patent, trademark, trade secret or other
proprietary or intellectual property right of any Person, or constitute a
defamation, invasion of privacy or violation of any right of publicity or any
other right of any Person, including, without limitation, any contractual,
statutory or common law right: (c) Customer will comply with all applicable
laws, rules and regulations regarding the Customer Content and the Dedicated
Hosting Services and will use the Dedicated Hosting Services only for lawful
purposes; (d) Customer has used its best efforts to ensure that the Customer
Content is and will at all times remain free of all computer viruses, worms,
trojan horses and other malicious code.
5.
License to PEER 1.Customer hereby grants to PEER 1 a
non-exclusive, royalty-free, worldwide right and license during the Term to do
the following to the extent necessary in the performance of Services under the
Order: (a) digitize, convert, install, upload, select, order, arrange, compile,
combine, synchronize, use,
reproduce, store, process, retrieve, transmit,
distribute, publish, publicly display, publicly perform and hyperlink the
Customer Content; and (b) make archival or back-up copies of the Customer
Content. Except for the rights expressly granted above, PEER 1 is not acquiring
any right, title or interest in or to the Customer Content, all of which shall
remain solely with Customer.
6.
PEER 1's Acceptable Use Policy. Customer will abide
by, and utilize the Services and the Customer Web site only in accordance with,
the Acceptable Use Policy (the "Acceptable
Use Policy") that PEER 1 posts on its Web site, as such
Acceptable Use Policy may be changed by PEER 1 from time to time. The
Acceptable Use Policy is hereby incorporated herein and made a part hereof by
this reference. Customer shall impose the Acceptable Use Policy on its
customers and End Users to the extent necessary to ensure their compliance.
Customer shall familiarize itself with the Acceptable Use Policy and
periodically access PEER 1's Web site to determine if PEER 1 has made any
changes thereto.
7.
Customer's Responsibilities.
a)
Customer
is solely responsible for the quality, performance and all other aspects of the
Customer Content and the goods or services provided through the Hosting
Services.
b)
Customer
will cooperate fully with PEER 1 in connection with PEER 1's performance of the
Services. Customer must provide any equipment or software that may be necessary
for Customer to use the Services. Delays in Customer's performance of its
obligations under this Agreement will extend the time for PEER 1's performance
of its obligations that depend on Customer's performance on a day for day
basis. Customer will notify PEER 1 of any change in Customer's mailing address,
telephone, e-mail or other contact information.
c)
Because
the Hosting Services permit Customer to electronically transmit or upload content
directly to the Customer Dedicated Server, Customer shall be fully responsible
for uploading all content to the Customer Dedicated Server and supplementing,
modifying and updating the Customer Dedicated Server. Customer is also
responsible for ensuring that the Customer Content and all aspects of the
Customer Dedicated Server are compatible with the hardware and software used by
PEER 1 to provide the Hosting Services, as the same may be changed by PEER 1
from time to time. PEER 1 shall not be responsible for any damages to the
Customer Content, or other damages or any malfunctions or service interruptions
caused by any failure of the Customer Content or any incompatibility with the
hardware and software used by PEER 1 to provide the Hosting Services.
d)
Unless
the applicable Service Description provides otherwise, Customer is solely
responsible for backup of customer content.
8.
PEER 1 Intellectual Property.
a)
PEER
1 hereby grants to Customer a non-exclusive, non-transferable, royalty-free
license, exercisable solely during the term of this Agreement, to use
applicable PEER 1 Technology solely for the purpose of accessing and using the
Services. Customer may not use the PEER 1 Technology for any purpose other than
accessing and using the Services. Except for the rights expressly granted
above, this Agreement does not transfer from PEER 1 to Customer any PEER 1
Technology, and all rights, titles and interests in and to the PEER 1
Technology shall remain solely with PEER 1. Customer shall not, directly or
indirectly, reverse engineer, decompile, disassemble or otherwise attempt to
derive source code or other trade secrets from any of the PEER 1 Technology.
b)
PEER
1's trademarks, tradenames, service marks, logos, other names and marks, and
related product and service names, design marks and slogans are the sole and
exclusive property of PEER 1. Customer may not use any of the foregoing in any
advertising, publicity or in any other commercial manner without the prior
written consent of PEER 1. PEER 1 shall maintain and control ownership of all
Internet protocol numbers and addresses that may be assigned by PEER 1 to
Customer. PEER 1 may, in its sole discretion, change or remove any and all such
Internet protocol numbers and addresses.
c)
Any
feedback, data, answers, questions, comments, suggestions, ideas or the like
which Customer sends to PEER 1 relating to the Services will be treated as
being non-confidential and non-proprietary. PEER 1 may use, disclose or publish
any ideas, concepts, know-how or techniques contained in such information for
any purpose whatsoever.
9.
Limited Warranty.
a)
PEER
1 represents and warrants to Customer that the Services will be performed (i)
in a manner consistent with industry standards reasonably applicable to the
performance thereof; and (ii) in compliance in all material respects with the
applicable Service Descriptions. Customer will be deemed to have accepted such
Services unless Customer notifies PEER 1 within 30 days after performance of
any Services of any breach of the foregoing warranties. Customer's sole and
exclusive remedy, and PEER 1's sole obligation, for breach of the foregoing
warranties shall be for PEER 1, at its option, to re-perform the defective
Services at no cost to Customer, or, in the event of interruptions to the Services
caused by a breach of the foregoing warranties, issue Customer a credit as
described in the PEER 1 Service Level Agreement (SLA). PEER 1 may
provision the Services from any of its data centers and may from time to time
re-provision the Services from different data centers.
b) The foregoing
warranties shall not apply to performance issues or defects in the Services (i)
caused by factors outside of PEER 1's reasonable control; (ii) that resulted
from any actions or inactions of Customer or any third parties; or (iii) that
resulted from Customer's equipment or any third-party equipment not within the
sole control of PEER 1.
10.
Limitation of Liability.
a)
IN NO EVENT WILL PEER 1'S LIABILITY IN CONNECTION WITH THE
SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE
TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED
THE AGGREGATE SERVICE FEES PAID TO PEER 1 BY CUSTOMER DURING THE 12-MONTH
PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
b)
PEER 1 CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY
PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR
TRANSMITTED VIA THE INTERNET. PEER 1 WILL NOT BE LIABLE FOR ANY UNAUTHORIZED
ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT
DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON
ITS SYSTEM.
c)
EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE
LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS
OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE
GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE,
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE,
WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER,
ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY
ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 11 AND 12) FOR ANY CLAIM AGAINST THE
OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH CLAIM OR DAMAGES.
d)
The
limitations contained in this Section
10 apply to all causes of action in the aggregate, whether
based in contract, tort or any other legal theory (including strict liability),
other than claims based on fraud or willful misconduct. The limitations
contained in Section 10(c)
shall not apply to liability arising on account of a party's breach of Section 13 or to Customer's
indemnification obligations under Section
11.
11.
Indemnification of PEER 1. Customer shall
defend, indemnify and hold harmless PEER 1, its affiliates and their respective
present, former and future officers, directors, employees and agents, and their
respective heirs, legal representatives, successors and assigns (collectively
the "PEER 1 Indemnitees"),
from and against any and all losses, damages, costs, liabilities and expenses
(including, without limitation, amounts paid in settlement and reasonable
attorneys' fees) which any of the PEER 1 Indemnitees may suffer, incur or
sustain resulting from or arising out of (i) Customer's breach of any
representation, warranty, or covenant contained in the Agreement, (ii) the
Customer Content, the Customer use of Hosting Services or any End User's use of
the Customer Content or use of the Customer Hosting Services (iii)
violation by Customer or any of its officers, directors, employees or agents of
the Acceptable Use Policy or any applicable law, (iv) claims or actions of
third parties alleging misappropriation of trade secrets or infringement of
patents, copyrights, trademarks or other intellectual property rights arising
from the use, display or publication of Customer's domain names, , the Customer
Content, or the use of the Hosting Services in combination with hardware,
software or content not provided by PEER 1, (v) claims or actions by third
parties relating to or arising out of Customer's use of the Hosting Services,
and (vi) any failure of the Customer Content to be compatible with the hardware
or software used by PEER 1 to provide the Services, including any damage to
PEER 1's servers or other hardware caused thereby.
12.
Indemnification of Customer.
a)
Subject
to Section 10, PEER 1
shall, at its own expense, indemnify, defend and hold Customer harmless from
any claim or suit alleging that the Hosting Services infringe any United States
patent, copyright or trademark existing on the Effective Date, or that PEER 1
has knowingly misappropriated any trade secret or other intellectual property
right of any other Person, including any losses, damages or expenses arising
from any such claim or suit. Customer agrees to cooperate with and assist PEER
1 in the defense or settlement of any such claim or suit. Customer shall be
reimbursed for all reasonable out-of-pocket expenses incurred in providing any
cooperation or assistance requested by PEER 1, but PEER 1 will not be liable
for any costs or expenses incurred without its prior written authorization.
b)
Promptly
after receipt by Customer of a threat of any claim or suit, or a notice of the
commencement or filing of any claim or suit, against which Customer may be
indemnified hereunder, Customer shall give written notice thereof to PEER 1,
provided that failure to give or delay in giving such notice to PEER 1 shall
not relieve PEER 1 of any liability it may have to Customer hereunder, except
to the extent that the defense of such claim or suit is prejudiced thereby.
PEER 1 shall have sole control of the defense, and of all negotiations for
settlement, of such claim or suit. Subject to the foregoing, Customer may participate
in the defense of any such claim or suit at Customer's own expense.
c)
If
an injunction, decree or judgment is, or PEER 1 believes in its sole discretion
is likely to be, entered providing that Customer may not use the Hosting
Services as contemplated in this Agreement without violating the intellectual
property rights of a third party, PEER 1 may, at its sole option and expense,
either (i) procure for Customer the right to use the Hosting Services or
affected part thereof as provided in this Agreement; (ii) replace the Hosting
Services or affected part thereof with other non-infringing services or modify
the Services or affected part thereof so as to be non-infringing; or (iii)
terminate this Agreement upon written notice to Customer.
d)
Notwithstanding
Section 12(a), PEER 1
assumes no liability for infringement claims arising from (i) use of the
Hosting Services with third-party products or services where the third-party
products or services cause the infringement, (ii) any modification of the
Services not authorized by PEER 1 in writing, (iii) the Customer Content, or
any content, data or information provided or supplied by an End User, or (iv)
Customer's use of any third-party software provided hereunder. THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF PEER 1, AND THE EXCLUSIVE REMEDY OF
CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.
13.
Confidentiality; Non-Solicitation.
a)
Each
party will not, without the prior written consent of the other party, use or
disclose to any Person any Proprietary Information of the other party disclosed
or made available to it, except for use of such Proprietary Information as
required in connection with the performance of its obligations or use of the
Services hereunder. Subject to Section
13(b), each party will (i) treat the Proprietary Information of
the other party as secret and confidential, (ii) limit access to the
Proprietary Information of the party to those of its employees who require it
in order to effectuate the purposes of this Agreement, and (iii) not disclose
the Proprietary Information of the other party to any other Person without the
prior written consent of the other party.
b)
Notwithstanding
Section 13(a), the
following shall not be considered Proprietary Information: (i) any information
that the receiving party can demonstrate by written documentation was within
its legitimate possession prior to the time of disclosure by the disclosing
party; (ii) any information that was in the public domain prior to disclosure
by the disclosing party as evidenced by documents that were published prior to
such disclosure; (iii) any information that, after disclosure by the disclosing
party, comes into the public domain through no fault of the receiving party,
(iv) any information that is disclosed to the receiving party without
restriction by a third party who has legitimate possession thereof and the
legal right to make such disclosure; or (v) any information that, two years
after expiration or termination of this Agreement, does not constitute a trade
secret under applicable law.
c)
Each
party acknowledges that disclosure of any aspect of the Proprietary Information
of the other party shall immediately give rise to continuing irreparable injury
to the other party inadequately compensable in damages at law, and, without
prejudice to any other remedy available to the other party, shall entitle the
other party to injunctive or other equitable relief. Upon expiration or
termination of this Agreement for any reason, each party shall promptly return
to the other party all Proprietary Information of the other party (including
all copies thereof) in its possession or control.
d)
During
the term of this Agreement and for two years following expiration or
termination of this Agreement, Customer will not, directly or indirectly,
solicit or recruit the services of any employee of PEER 1 performing services
under this Agreement, while such employee is employed by PEER 1 and for a
period of six months after such employee has left the employment of PEER 1.
14.
Hosting Services. In connection with any Hosting
Services:
a)
Customer
must provide PEER 1 with any information, login identifications, passwords or
other information or access to facilities that PEER 1 may reasonably require to
provide the Optional Services PEER 1 will have no responsibility for any delays
or increased costs or expenses associated with Customer's failure to provide
any of such information. If Customer does not provide any such information or
access requested by PEER 1 within fifteen (15) days of PEER 1's request
therefor, PEER 1 may terminate the Order and retain any Service Fees paid.
b)
If
Customer requested that PEER 1 perform the Hosting Services by a particular
deadline or that PEER 1 achieve some particular result or outcome, PEER 1 will
use commercially reasonable best efforts to perform the Services by any such
deadline and achieve the result requested by Customer; provided, however, that
(i) PEER 1's ability to perform the Services is subject to Customer's provision
of information and access as provided above and (ii) PEER 1 has no liability or
obligation to complete the Services by any deadline or achieve any particular
outcome or result
c)
If
Customer wishes to convey documents or files to PEER 1, Customer should deliver
to PEER 1 a copy or duplicate of such documents or files and not the original
copy. PEER 1 will not return to Customer any documents or files conveyed to
PEER 1.
d)
PEER 1 will have no liability or
responsibility for any damage, loss of data, loss of use or other loss
occurring in connection with PEER 1's provision of Hosting Services requested
by Customer.
15.
Miscellaneous.
a)
Independent
Contractor. PEER 1 and Customer are independent contractors and nothing
contained in this Agreement places PEER 1 and Customer in the relationship of
principal and agent, master and servant, partners or joint venturers. Neither
party has, expressly or by implication, or may represent itself as having, any
authority to make contracts or enter into any agreements in the name of the
other party, or to obligate or bind the other party in any manner whatsoever.
b)
Governing
Law; Jurisdiction. Any controversy or claim arising out of or relating to this
Agreement, the formation of this Agreement or the breach of this Agreement,
including any claim based upon arising from an alleged tort, shall be governed
by the substantive laws of the State of Georgia, except that all arbitration
and related proceedings conducted pursuant to Section 15(c) below, including
without limitation confirmation proceedings, shall be governed by the Federal
Arbitration Act, 9 U.S.C. §§ 1, et. seq. . The United Nations Convention on
Contracts for the International Sale of Goods does not apply to this Agreement.
ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO
MANDATORY ARBITRATION PURSUANT TO SECTION 15(C) BELOW MUST BE BROUGHT IN A
GEORGIA STATE OR FEDERAL COURT LOCATED IN FULTON COUNTY, GEORGIA, AND EACH OF THE
PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH
COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT,
ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT
ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
c)
Mandatory
Arbitration. Notwithstanding Section 15(b) above, each party agrees that any
dispute between the parties arising out of this Agreement or in any manner
relating to the Services must be submitted by the parties to arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, as administered by Resolutions Resources Corp. of Atlanta, Georgia
(or such other recognized provider of arbitration services agreed upon by both
parties) before a single arbitrator, appointed in accordance with such rules.
Any such arbitrator must render a reasoned opinion in writing only where the
amount in dispute exceeds $100,000. Judgment upon the award may be entered in
any court having jurisdiction thereof. Any such arbitration will be held in Atlanta, Georgia. Any action filed by either party in any court in violation of this
Section should be dismissed pursuant to this Section.
d)
Headings. The headings herein
are for convenience only and are not part of this Agreement.
e)
Entire
Agreement; Amendments. This Agreement, including documents incorporated herein by
reference, supersedes all prior discussions, negotiations and agreements
between the parties with respect to the subject matter hereof, and this
Agreement constitutes the sole and entire agreement between the parties with
respect to the matters covered hereby. In case of a conflict between this
Agreement and any purchase order, service order, work order, confirmation,
correspondence or other communication of Customer or PEER 1, the terms and
conditions of this Agreement shall control. No additional terms or conditions
relating to the subject matter of this Agreement shall be effective unless
approved in writing by any authorized representative of Customer and PEER 1.
This Agreement may not be modified or amended except by another agreement in
writing executed by the parties hereto; provided, however, that these Terms of
Service may be modified from time to time by PEER 1 in its sole discretion,
which modifications will be effective upon posting to PEER 1's web site.
f)
Severability. All rights and
restrictions contained in this Agreement may be exercised and shall be
applicable and binding only to the extent that they do not violate any
applicable laws and are intended to be limited to the extent necessary so that
they will not render this Agreement illegal, invalid or unenforceable. If any
provision or portion of any provision of this Agreement shall be held to be
illegal, invalid or unenforceable by a court of competent jurisdiction, it is
the intention of the parties that the remaining provisions or portions thereof
shall constitute their agreement with respect to the subject matter hereof, and
all such remaining provisions or portions thereof shall remain in full force
and effect.
g)
Notices. All notices and
demands required or contemplated hereunder by one party to the other shall be
in writing and shall be deemed to have been duly made and given upon date of
delivery if delivered in person or by an overnight delivery or postal service,
upon receipt if delivered by facsimile the receipt of which is confirmed by the
recipient, or upon the expiration of five days after the date of posting if
mailed by certified mail, postage prepaid, to the addresses or facsimile
numbers set forth below the parties' signatures. Either party may change its
address or facsimile number for purposes of this Agreement by notice in writing
to the other party as provided herein. PEER 1 may give written notice to
Customer via e-mail to the Customer's e-mail address as maintained in PEER 1's
billing records.
h)
Waiver. No failure or delay
by any party hereto to exercise any right or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any right or
remedy by any party preclude any other or further exercise thereof or the
exercise of any other right or remedy. No express waiver or assent by any party
hereto to any breach of or default in any term or condition of this Agreement
shall constitute a waiver of or an assent to any succeeding breach of or
default in the same or any other term or condition hereof.
i)
Assignment;
Successors. Customer may not assign or transfer this Agreement, or any of
its rights or obligations hereunder, without the prior written consent of PEER
1. Any attempted assignment in violation of the foregoing provision shall be
null and void and of no force or effect whatsoever. PEER 1 may assign its
rights and obligations under this Agreement, and may engage subcontractors or
agents in performing its duties and exercising its rights hereunder, without
the consent of Customer. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
j)
Limitation
of Actions. No action, regardless of form, arising by reason of or in
connection with this Agreement may be brought by either party more than one
year after the cause of action has arisen.
k)
Counterparts. If this Agreement is
signed manually, it may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together shall constitute
one and the same instrument. If this Agreement is signed electronically, PEER
1's records of such execution shall be presumed accurate unless proven
otherwise.
l)
Force
Majeure.
Neither party is liable for any default or delay in the performance of any of
its obligations under this Agreement (other than failure to make payments when
due) if such default or delay is caused, directly or indirectly, by forces
beyond such party's reasonable control, including, without limitation, fire,
flood, acts of God, labor disputes, accidents, acts of war or terrorism,
interruptions of transportation or communications, supply shortages or the
failure of any third party to perform any commitment relative to the production
or delivery of any equipment or material required for such party to perform its
obligations hereunder.
m)
No
Third-Party Beneficiaries. Except as otherwise expressly provided in this
Agreement, nothing in this Agreement is intended, nor shall anything herein be
construed to confer any rights, legal or equitable, in any Person other than
the parties hereto and their respective successors and permitted assigns.
Notwithstanding the foregoing, Customer acknowledges and agrees that Microsoft,
and any supplier of third-party supplier that is identified as a third-party
beneficiary in the Service Description, is an intended third-party beneficiary
of the provisions set forth in this Agreement as they relate specifically to
its products or services and shall have the right to enforce directly the terms
and conditions of this Agreement with respect to its products or services
against Customer as if it were a party to this Agreement.
n)
Government
Regulations. Customer may not export, re-export, transfer or make available,
whether directly or indirectly, any regulated item or information to anyone
outside the United States in connection with this Agreement without first
complying with all export control laws and regulations which may be imposed by
the United States government and any country or organization of nations within
whose jurisdiction Customer operates or does business.
o)
Marketing. Customer agrees that
during the term of this Agreement PEER 1 may publicly refer to Customer, orally
and in writing, as a customer of PEER 1. Any other public reference to Customer
by PEER 1 requires the written consent of Customer.
p)
Telephone
Monitoring. To ensure PEER 1's customers receive quality service, PEER 1
randomly selects phone calls for monitoring. These calls, between PEER 1's
customers and employees, are evaluated by supervisors. This is to guarantee
that prompt, consistent assistance and accurate information is delivered in a
professional manner. PEER 1 has been properly licensed by the Georgia Public
Service Commission to use such service observing equipment.
§
Definitions. For purposes of this Agreement, the
following terms have the meanings specified below:
§
"Agreement" means each contract created between PEER 1
and Customer for the provision of Services consisting of an Order, the
applicable Service Description and these Terms of Service.
§
"Customer Content" means all data, graphics, text, names,
marks, logos, hypertext links to other Web sites and other information
incorporated in, transmitted through or published or displayed on the Customer
Dedicated server.
§
"Customer Dedicated server(s)" means the hardware,
operating system and software provided for Customer use by PEER 1.
§
"End User" means any Person who accesses or uses the
Customer Dedicated server via the Internet.
§
"PEER 1 Technology" means PEER 1's proprietary technology,
including, without limitation, PEER 1 services, software tools, hardware
designs, algorithms, software (in source code and object code forms), user
interface designs, architecture, class libraries, objects and documentation
(both printed and electronic), network designs, know-how, trade secrets and any
related intellectual property rights throughout the world (whether owned by
PEER 1 or licensed to PEER 1 from a third party), and also including any
derivatives, improvements, enhancements, updates, modifications or extensions
of PEER 1 Technology conceived, reduced to practice or developed during the
term of this Agreement by either party.
§
"Person" means any individual, partnership, joint venture,
corporation, limited liability company, trust, unincorporated association or
organization, or government or any agency or political subdivision thereof.
§
"Proprietary Information" means all technical, business and
other information of a party (i) that is not generally known to the public,
(ii) that derives value, economic or otherwise, from not being generally known
to the public or to other Persons who can obtain value from its disclosure or
use, and (iii) which information is subject to efforts that are reasonable
under the circumstances to maintain the secrecy thereof.
§
"Order" means the Order submitted by the Customer to PEER 1 for
Services, whether such Order is submitted online through PEER 1's Web site or
on a written Order form.
§
"Termination Charge" means, with respect to Non-Prepaid
Customers only, the amount showing on the Service Description
§
"Terms of Service" means these Terms of Service, as the same
may be modified, altered or amended from time to time by PEER 1.
§
" Hosting Services" means the Service provided by PEER 1 in
response to an Order whereby PEER 1 provides the Customer with connectivity,
support and bandwidth and any other services as described in the applicable
service description.
§
"Service Description" means the applicable documents made
available by PEER 1 to Customer to describe the applicable Services at the time
the Order is accepted by PEER 1.
§
"Service Level Agreement(SLA)" - means the PEER 1 agreement to
provide certain warranties of service as described in the document "PEER 1 SLA" which can be accessed on the PEER 1 Website
§
"Term" means the duration of any Agreement between PEER 1 and
Customer. With respect to Hosting Services, the "Initial Term" is the initial term specified in the
Order and the Term continues beyond the Initial Term for any renewal period as
specified in Section 3. . With respect to Optional Services, the "Term" begins when PEER 1 accepts
the Order and ends on the first to occur of (i) PEER 1's completion of
performance, or (ii) the earlier termination of the Order in any manner
permitted by these Terms of Service.
