This NetActuate Terms of Service ("TOS" or "Agreement") constitutes a binding agreement between NetActuate Inc., a Delaware corporation, DBA as, Host Virtual (altogether, "NetActuate ", "we", "our", or "us"), and any person or entity registering as a user and electing to purchase, activate, subscribe to, or renew our NetActuate Services through the online portal available at www.hostvirtual.com/portal3 (Your "NetActuate Account") or offline or any person or entity with access to Your NetActuate Account ("Customer", "User", "You", or "Your"). By using our services, You agree at all times during Your use to abide by this TOS and any additions or amendments. Please read this Agreement carefully.
We reserve our right to amend or supplement this Agreement at any time, at our discretion. When we do so, we will do our best to provide You with notice and point out what is different or new. If at any time You do not agree to the terms of this Agreement or any of the terms of any applicable NetActuate Contract (as defined below), please discontinue use of the respective service immediately and close Your NetActuate Account.
If the revised TOS are for any then-existing Services, then such TOS shall be effective thirty (30) days after posting.
1. Agreement Definitions
1.1 "Auto Renew" or "Auto Renewal" is the process by which the Services Period of certain NetActuate Services under an order is automatically extended for an additional Services Period unless such Services are otherwise terminated in accordance with the terms of the order or this Agreement. The Service Specifications incorporated into Your order define which NetActuate Services are eligible for Auto Renewal as well as any terms applicable to any such renewal.
1.2 "Cloud Services" means, collectively, the NetActuate cloud services listed in Your order and defined in the Service Specifications.
1.3 "Professional Services" means, collectively, the consulting and other professional services, which You have ordered. Professional Services include any deliverables described in Your Order and delivered by NetActuate to You under an Order Form or Statement of Work.
1.4 "NetActuate Services" means, collectively, both the Cloud Services and Professional Services that You have ordered.
1.5 "Services Environment" refers to the combination of hardware and software components owned, licensed or managed by NetActuate to which NetActuate grants You and Your Users access as part of the NetActuate Services which You have ordered. As applicable and subject to the terms of this Agreement and Your order, Third Party Content, Your Content and Your Applications may be hosted in the Services Environment.
1.6 "Service Specifications" means the descriptions on www.hostvirtual.com/policies or such other address specified by NetActuate, that are applicable to the Services under Your order, including any program documentation, hosting, support and security policies, and other descriptions referenced or incorporated in such descriptions or Your order.
1.7 "Services Period" refers to the period of time for which You have ordered NetActuate Services and have Payment obligations as specified in Your Order or Statement of Work.
1.8 "Third Party Content" means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of NetActuate and made available to You through, within, or in conjunction with Your use of, the NetActuate Services. Examples of Third Party Content include data feeds from social network services, rss feeds from blog posts, data libraries and dictionaries, and marketing data.
1.9 "Users" means those employees, contractors, and end users, as applicable, authorized by You or on Your behalf to use the NetActuate Services in accordance with this Agreement and Your order. For NetActuate Services that are specifically designed to allow Your clients, agents, customers, suppliers or other third parties to access the NetActuate Services to interact with You, such third parties will be considered "Users" subject to the terms of this Agreement and Your order.
1.10 "Your Applications" means all software programs, including any source code for such programs, that You or Your Users provide and load onto, or create using, any NetActuate "infrastructure- as-a-service" Services. Services under this Agreement, including NetActuate Services Environments, NetActuate intellectual property, and all derivative works thereof, do not fall within the meaning of the term "Your Applications."
1.11 "Your Content" means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material (other than Your Applications), in any format, provided by You or on behalf of Your Users that reside in, or run on or through, the Services Environment.
1.12 "Your Server" means each server or virtual instance that is created from NetActuate Cloud Service with the resources you have chosen.
2. Rights Granted
2.1. For the duration of the Services Period and subject to Your payment obligations, and except as otherwise set forth in this Agreement, or Your order, You have the non-exclusive, non-assignable (exceptions in section 8), worldwide limited right to access and use the Services that You ordered, including anything developed by NetActuate and delivered to You as part of the Services, solely for Your internal business operations, except for resell as permitted under Section 13 of this TOS, and subject to the terms of this Agreement and Your order, including the Service Specifications. You may allow Your Users to use the Services for this purpose and You are responsible for Your Users' compliance with this Agreement and the order.
2.2. You do not acquire under this Agreement any right or license to use the Services, including the Services Environment, in excess of the scope and/or duration of the Services stated in Your order. Upon the end of the Services ordered, Your right to access and use the Services will terminate.
2.3. To enable NetActuate to provide You and Your Users with the Services, You grant NetActuate the right to use, process and transmit, in accordance with this Agreement and Your order, Your Content and Your Applications for the duration of the Services Period. If Your Applications include third party programs, You acknowledge that NetActuate may allow providers of those third party programs to access the Services Environment, including Your Content and Your Applications, as required for the interoperation of such third party programs with the Services. NetActuate will not be responsible for any use, disclosure, modification or deletion of Your Content or Your Applications resulting from any such access by third party program providers or for the interoperability of such third-party programs with the Services.
3. NetActuate's Commitments
Provided that You are in compliance with Your obligations to NetActuate, abide by this Agreement, and pay all applicable fees, throughout the duration of the subscription to the NetActuate Services, NetActuate will:
Provide You with cloud-based hosting and server infrastructure, with the resources You choose (as detailed on our Site) if all such resources are immediately available;
NetActuate will use its best efforts to provision Your servers to Your specifications and provide You with access to them in a timely manner;
In accordance with Service Period (section 1.7) we give You the ability to subscribe to, modify and cancel NetActuate Services, and any specific resources, autonomously, at any time, to fit Your needs via Your secure NetActuate Account interface;
Allow You to easily and autonomously manage Your Servers via Your secure NetActuate Account interface; and
intervene rapidly in the event of a hardware or network failure at NetActuate, in order to restore the service (where possible, within 6 hours of the incident being reported to NetActuate)
4. Payment and Refunds
4.1 Non-Recurring and Recurring Charges. You must pay any non-recurring charges if applicable, such as set up fees, as set out on our Site or Order Form or Statement of Work. Payment of these non-recurring charges is a pre-requisite to our obligation to provide services to You.
If You choose monthly billing, You are required to keep a valid credit card on file. Should You choose to remove this credit card, You will be required to choose a billing cycle for which recurring automatic charges are not required. We will bill all charges authorized by this Agreement and recurring charges to the credit card on file. We reserve the right to bill You for fees charged to us by our credit card processor, plus $200 special processing fee, for disputes initiated by You, which are resolved in our favor.
4.2 Due Date and Late Payments. Unless otherwise set out on an individual Service Order, You agree to pay all charges by the due date indicated on the invoice ("Due Date"). Automated credit card charges are applied during invoice generation, up to 10 days before the due date. If Your card is declined, the charge will be repeatedly attempted until it clears.
If You do not pay all undisputed amounts by the Due Date, Your account is considered "Past Due". After 7 days of Your Account being Past Due, we reserve the right to suspend services, or terminate your account, and refuse to provide You any access to services.
You may be assessed additional charges on late payments for interest at the rate of 1.5% per month or the maximum rate allowed by law, and a processing fee at our sole discretion, if we incur administrative and/or legal costs associated with Your late payments. If Your check is returned by Your bank, You will be billed any return check fee charged to us plus a $25 special handling & processing fee.
4.3 Refunds. We have calculated our fees based on the Service Period. Accordingly, fees will only be refunded as is expressly set out in this Agreement. Notwithstanding any terms to the contrary as contained in this TOS, should You be required to make advance payment for certain services performed or pay certain service fees, those fees are not refundable should You choose to terminate the Agreement for any reason.
4.4 Charges for Previously Provided Services and Storage of Equipment. We reserve the right to bill You retroactively for any services provided to You for which we had not previously billed.
4.5 Bill Disputes. You have up to 25 days from the date of our bill to initiate a dispute over charges or to receive credits, if applicable. In order to dispute Your bill, You must send us a written itemized description of the specific items You dispute in Your bill. This itemization must be in sufficient detail for us to identify the items in dispute.
5. Your Obligations
In addition to any other applicable obligations set forth in the NetActuate Contracts or SOW, You agree to the following:
5.1. Acceptable Use Policy. You agree to abide by the terms of the Acceptable Use Policy.
5.2 You Alone Are Responsible for Backups. You acknowledge and agree that the backing up, redundancy and data recovery measures of the entire contents of Your Servers is completely Your responsibility. NetActuate does not perform backup service of Your Content or for the NetActuate Services. In no event will NetActuate be held liable for any loss of any Content.
Upon the expiration of this Agreement, termination, deletion or cancellation of NetActuate Services, all of the Content on Your Servers will be deleted, without any possibility of recovery. It is Your obligation to take all necessary measures to save Your Content in any format You deem necessary to recreate Your Servers at another time or with another provider. Therefore, we strongly recommend that You perform regular backups of Your Servers, Your Content and a final backup before terminating services.
5.3 Self-Identification Requirement. By creating this NetActuate Account, You specifically declare that You have the legal capacity and necessary authorizations required. You must clearly and truthfully identify Yourself to NetActuate to proceed with the creation of a NetActuate Account and identify account roles, which are required to subscribe to and use our services. Your NetActuate Account, Your identity, and all the contact information that You are associated with and provide:
are necessary for the validation and processing of any services or options that You order at NetActuate, as well as during the entire duration of Your NetActuate Contract and for the use of NetActuate services; and
are declared, and updated by You, on Your own initiative as upon request, and under Your sole and entire responsibility throughout the duration of Your NetActuate Contracts.
We recommend that You seek the advice of professional(s) of Your choice in order to be sure that You are in compliance with legal, regulatory, and/or professional obligations with regards to Your use of NetActuate Services. Any violation of Your commitments as set forth in this Agreement will be considered as a material breach as described and sanctioned in sections 10.2 and 10.3.
Furthermore, if You are using Your NetActuate Services in connection with commercial purposes (for example, the offering for sale of goods or services via a website hosted on Your Servers) You must disclose Your identity and reasonably allow third parties to contact You by publicly identifying:
If You are a physical person: Your first and last name, mailing address, contact telephone number, and, if applicable, any relevant license or registration number; or
If You are acting on behalf of a legal entity: the business name, mailing address, contact telephone number, and, if applicable, any relevant license or registration number.
By default, our name, address and contact telephone number may be associated with Your Servers' IP addresses as Your webhosting provider on webhost lookup/search tools.
5.4 You are Responsible for Monitoring the Content on Your Servers. Before publishing Content on any websites connected with Your NetActuate Services, You must ensure that such Content is in compliance with the Acceptable Use Policy. If You allow third parties to publish Content on websites hosted on Your Servers, You are responsible for monitoring the Content published by third parties and, when appropriate, deleting it immediately. If You cannot or do not want to monitor and regulate the Content posted to websites connected with Your Servers by third parties, You may use software that helps You monitor and takedown Content that is not appropriate or non-compliant with our Acceptable Use Policy. If the Content on websites hosted on Your Servers is not appropriate for certain audiences (for example, children), it is Your responsibility to take reasonable measures to prevent access to such websites by the audiences for which it would be inappropriate.
In the event that a website connected with Your Server is intended to be used by a minor, his or her legal guardian must assist him or her in monitoring the Content on that website and assume the responsibility for ensuring that the Content on that website complies with the Acceptable Use Policy.
5.5 You Must Abide by Applicable Copyright Laws and Cooperate with Us in Responding to DMCA Complaints Regarding Your Content. You may not use the NetActuate Service in any manner that infringes upon any copyright. Such infringement may include, but is not limited to selling counterfeit goods, unauthorized copying of photographs, books, music, videos, or any other copyright protected work, or facilitating infringement such as by way of a peer to peer file sharing. It is our policy to promptly investigate complaints or notices of alleged copyright infringement that are provided to us in writing regarding Content hosted on or otherwise displayed via our systems. Our response to such notices may include removing or disabling access to the Content or website claimed to be the subject of infringing activity, without prior notice, and without regard to the complaint's substance or merit (or lack thereof). NetActuate reserves the right, in its sole discretion, to close any NetActuate Account or NetActuate Services for which NetActuate receives three or more copyright infringement complaints, without prior notice.
We abide by the safe harbor provisions of the Digital Millennium Copyright Act ("DMCA"). Upon receipt of an infringement counter notice that substantially complies with the counter notification requirements set forth in the DMCA, the DMCA requires us to provide the complaining party with a full copy of the counter notice provided to us by the alleged infringer or his/her authorized agent. The DMCA also requires us to permit the alleged infringer to restore access to the material claimed to be the subject of infringing activity, within no less than ten business days and no more than fourteen business days following our receipt of a compliant counter notice, unless we first receive notice that the complaining party has filed an action seeking a court order to restrain the alleged infringer from engaging in infringing activity. Be advised, regardless of whether or not the complaining party files an action seeking a court order to restrain the alleged infringer from engaging in infringing activity, the complaining party may still maintain the right to seek relief in a court of law. It is our policy to adhere to all orders of the court.
Any court order issued in connection with a complaint that has been filed against the alleged infringer with which we are served will, with immediate effect, supersede any allowance we may have made permitting the alleged infringer to re-enable or otherwise restore the access to the material claimed to be the subject of infringing activity.
A filing of a copyright infringement counter notice may result in litigation between and among the parties.
5.6 You Must Abide by Applicable Trademark Laws and Cooperate with Us in Responding to Trademark Complaints Regarding Your Content. You may not use the NetActuate Service in any manner that infringes on the intellectual property rights of any person or party. Such infringement may include, but is not limited to selling counterfeit goods, or unauthorized copying of photographs, logos, designs or other lawfully protected works. It is our policy to promptly investigate compliant notices of alleged trademark infringement that are provided to us in writing regarding Content hosted on or otherwise displayed via our systems. Our response to such notices may include removing or disabling access to the material claimed to be the subject of infringing activity, without prior notice, and without regard to the complaint's substance (or lack thereof). Presently, there is no counter notification process in place for trademark law. If You wish to object to a complaint filed against You, You will need to address the matter up with the trademark owner in a court of law. In any case, You hold NetActuate completely harmless in all matters concerning our action with respect to any trademark infringement complaint. NetActuate reserves the right, in its sole discretion, to close any NetActuate Account for which it receives three or more trademark infringement complaints, without prior notice and without a refund of any fees.
5.7 Always Having Strong, Secret Passwords is Your Responsibility. You are required to and solely responsible for maintaining the confidentiality and security of the passwords used to access Your NetActuate Account and Your NetActuate Services. You bear sole responsibility for any and all activity that occurs under Your username and password. NetActuate is not be responsible for any loss or damage arising from or otherwise related to Your failure to maintain control over access to Your password or username, whether due to Your own negligence or for any other reason. As a general practice, it's best that You change all of Your passwords periodically and at any time You think that the username and password to Your NetActuate Account, Your NetActuate Service or any of Your other usernames or passwords have become compromised.
5.8 Obligation to Not Disrupt Our Systems and to Preserve the Reputation of Our IP Addresses. You agree to use our services in a manner that does not interfere with or otherwise disrupt services to our other customers or any of our systems. NetActuate reserves the right to suspend or close the NetActuate Account and associated NetActuate services, without prior notice, if in our judgment such interference or disruption is determined to exist. You agree to maintain the reputation of our IP addresses and not to undertake any actions that cause our mail servers or any of our IP address or ranges to be placed on any "blacklist" or "black hole list" (i.e. www.spamhaus.org, "XBL", or "SBL") or any other mail filtering software systems used by companies on the Internet. You agree to notify us immediately if You learn that any of our IP addresses have been placed on any such list. If necessary and a result of Your actions, You agree to take whatever steps are necessary (or fully cooperate with us in taking whatever actions we deem necessary) to remove any of our IP addresses from any such lists immediately.
5.9 Obligation Not to Manipulate Our IP Addresses. NetActuate is and will remain the sole owner of all IP network addresses within NetActuate's network. You are not permitted to modify any configuration that will otherwise conflict with, or disrupt our network services. We will use our reasonable best efforts to ensure that the IP addresses allocated to You remain allocated to You. However, NetActuate reserves the right to change IP address allocations for any reason (including, but not limited to upgrades, security provisioning, or other network migration service). If we need to change the IP addresses You have been allocated, we will use our reasonable best efforts to provide You with advance notice, but we reserve our right to change them without notice too. We reserve the right to evaluate before any approval of any of Your requests for different or additional IP address allocations. Your requests may be rejected based on insufficient information, lack of justification, availability or current IP address utilization. Our requirements and justifications are subject to change at any time.
5.10 You Are Responsible for Your Domain Name Registrations and Renewals. If a domain name associated with a site hosted on Your Servers expires, the Content of the site will no longer be available online via this domain name. You are responsible for maintaining the domain name(s) and information associated with Your Servers in good standing. The NetActuate Service does not include monitoring or renewing any of Your domain names.
6. Security Measures
You Are responsible for managing the appropriate Hardware, Software and Security Measures for Your Servers. By subscribing to the NetActuate Service, once control of Your Servers has been turned over to You by us, You take full responsibility for setting up, maintaining and securing Your Servers. You are responsible for configuring Your Servers to meet Your needs and objectives, any necessary technical interventions on Your Servers to ensure proper functioning (including in the case of malfunction or failure), and procuring, installing, maintaining and updating any software necessary to secure or restrict access to part or all of Your Servers, Content, websites or applications hosted on Your Servers and implementing security best practices.
NetActuate agrees to undertake commercially reasonable best efforts to ensure the security of its hardware and its technical infrastructure. However, You are solely responsible for the security of each of Your Servers and Your Content. You agree to take all steps necessary to secure access to Your Servers and Your access codes, as well as the username and passwords for every third party, website or service made available on Your Servers. You agree to inform NetActuate immediately of any security flaw or any abusive use of Your Servers of which You become aware, regardless of the type, so that we can coordinate our efforts, if necessary. We reserve the right to suspend, or even terminate or delete Your Servers, Your Content or our services and associates resources, without prior notice if necessary, in order to protect our systems from a security issue in connection with Your Servers.
7. You Are Responsible for the Actions of Others Accessing Your Servers
If You give access to Your NetActuate Service to anyone ("User"), You agree to inform Your Users of the obligations of this Agreement and any other applicable NetActuate Contract. You take complete responsibility for the actions of Your Users and You guarantee that this person will abide by all the Terms set forth. You are entirely responsible for any User's Content on Your NetActuate Service. As set forth herein, You agree to indemnify NetActuate and NetActuate's related parties for any claims concerning any actions of Your Users.
8. Limitation on Transferability of Your Servers and Services
Neither party may assign this Agreement, or any part of this Agreement, to any third party without prior written and mutual consent, unless compelled to do so by law. If You grant a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or any deliverables.
9. Term and Termination of the Agreement
9.1 Services provided under this Agreement shall be for the Services Period defined in Your order, unless earlier suspended or terminated in accordance with this Agreement or the order. If stated in the Service Specifications or Service orders, certain NetActuate Services that are ordered will Auto Renew for additional Services Periods or month to month basis if not stated, unless (i) You provide NetActuate with written notice no later than thirty (30) days prior to the end of the applicable Services Period of Your intention not to renew such NetActuate Services as per section 20.2, or (ii) NetActuate provides You with written notice no later than (30) days prior to the end of the applicable Services Period of its intention not to renew such NetActuate Services.
9.2 Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, payment and others, which by their nature are intended to survive.
10. Suspension or Termination of this Agreement and/or Your NetActuate Service
When You cancel Your NetActuate Services, NetActuate will delete Your Servers and will no longer provide access to You or third parties to Your Content via the Internet. Please note that Your Content may have been referenced, cited or copied onto other websites, any of which may retain some or all of Your Content beyond NetActuate's control, and deleting Your NetActuate Service may not remove Your Content from the Internet. You alone are wholly responsible for any consequences of Your cancellation of the NetActuate Services, including as a result of the deletion of Content.
10.1 Suspension or Termination for Failure to Pay. As set forth in section 4, NetActuate will suspend and/or terminate Your Servers and Services during its active term, in the event You do not pay applicable charges. During the suspension period, You will not be able to access Your Servers and Services associated with Your Account. During the suspension period, You will continue to be charged into an account deficit for services that use resources, even while deactivated. If Your NetActuate Account still remains unfunded seven (7) days after due date, Your Servers, the technical services that are associated with it, and Your Content may be permanently deleted. In the event Your Servers, Your Content and Your services are deleted, NetActuate will not be responsible for recovery of Your Servers or Your Content (see section 5.2).
10.2 Suspension or Termination for Breach of this Agreement or any Other Applicable NetActuate Contract. In the event that You breach Your obligations set forth in this Agreement or in any other applicable NetActuate Contract, depending on the nature or reoccurrence of the breach, in its sole discretion, NetActuate reserves the right to (i) terminate this Agreement without prior or further notice; (ii) terminate this Agreement and suspend, deactivate, delete or terminate Your NetActuate Account and/or Your NetActuate Service and/or any other associated services; or (iii) give You notice of the breach and an opportunity to cure the breach within ten (10) calendar days of our notification to You thereof. In the event of such breach, You acknowledge that You will not be entitled to a refund of any kind.
You further acknowledge and agree that NetActuate will not be held responsible or liable for any damages of any kind related to or caused by NetActuate's termination or suspension of Your NetActuate Account and/or Your NetActuate Service and/or any other associated services. All Content will be completely deleted from our servers without any available backups (see section 5.2).
NetActuate reserves the right to pursue any remedy available to it at law or in equity if You breach this Agreement. Termination or suspension of services does not excuse Your obligation to pay any outstanding amounts due in connection with services already performed or provided or domains already registered.
10.3 Suspension or Termination as Required by Law or Regulation. You agree that You will use the services offered by NetActuate in a manner that is consistent with all applicable local, state, federal or national laws and regulations, regardless of whether or not You are a citizen of the United States and regardless of where You live or house Your data. You are responsible for determining the laws and regulations applicable to Your use of the services. Customers found to be using our services or systems for illegal activities will have their accounts closed with immediate effect, without prior or further notice, and without refund of any fees. In adherence to any new governmental regulations or policies that may arise, either domestically or internationally, we may suspend or delete Your Server.
We value our customers' privacy. It is our policy to cooperate with law enforcement and administrative agencies only upon lawful request or order, or substantial justification. Upon lawful request or order from a court or law enforcement, arbitral body, administrative commission or government administrative agency, we may, without notice to You or Your consent, (i) provide the information requested by such agency to that agency, including Your Content; (ii) suspend, deactivate, delete or terminate Your NetActuate Account, Your NetActuate Services and any other associated services.
As a technical intermediary that conforms to rules and agreements with Internet regulatory bodies, NetActuate may, without notice to You or Your consent, suspend, deactivate, delete or terminate Your NetActuate Account, Your NetActuate Services and any other associated services, (i) to fix a technical problem, or (ii) for purposes of maintaining or repairing our system's stability, or (iii) To stop illegal and/or abusive use of Your Servers by third parties without Your immediate response (i.e. spamming, fraud, hacking, unauthorized access attempts).
In the event that NetActuate must terminate /or suspend, deactivate, delete or terminate Your NetActuate Account, Your NetActuate Service and any other associated services for any of the foregoing reasons, (i) You acknowledge that You will not be entitled to a refund of any kind for Services performed or provided, and (ii) You agree that NetActuate will not be held responsible or liable for any damages of any kind related to the suspension and/or termination of the Account and Services.
10.4 Suspension or Termination for Maintenance or Security Breach. Your NetActuate Account, Your NetActuate Service and/or any other associated services may be suspended or terminated in the event that Your Account, Services or Content pose a security threat or disruption to NetActuate's infrastructure or business (i.e. NetActuate's other customer, business, systems, network or services).
NetActuate reserves the right to terminate or suspend all or part of the NetActuate Service for the following reasons not limited to:
To carry out maintenance operations, to improve performance, or to provide any maintenance upgrades, or support;
To perform technical intervention or to stop a technical malfunction on our system;
To protect the integrity, security and stability of our systems;
To provision or deliver services You have requested;
To address security threats or to prevent damage to, or an attempt to damage, our systems or infrastructure caused by Your Server (i.e. DDoS, botnet, spamming); and
If necessary, as part of our service deliverables.
Please note that, in most cases, our intervention can technically only occur on a server as a whole, and not on any specific content.
We will use our reasonable best efforts to reduce any resulting downtime to as little as possible, and, whenever possible, to inform You in a reasonable amount of time beforehand and specify the date, nature, extent and duration of any anticipated downtime. Emergency events or emergency maintenance may be performed with or without prior notice; we will make every effort to provide notice prior to, during or after the event in a reasonable timeframe.
11. Effects of Our Actions
To remove or disable access to material claimed to be the subject of infringing activity or that, in our judgment, breaches any section of this Agreement, NetActuate will suspend or permanently delete Your Server(s) on which the Content is hosted.
Our intervention can technically only occur on a server as a whole, and not on selected content.
If any Server is suspended or deleted pursuant to NetActuate's obligations as a service provider under the DMCA, or pursuant to any section of this Agreement, re-enabling or otherwise restoring access to that Content or website is prohibited until You have complied with all the terms set in our notice to You concerning the issue and unless You are otherwise notified by NetActuate.
In any event where the Content or website is re-enabled or otherwise restored (whether on the original NetActuate Account or a different NetActuate Account), absent NetActuate's express authorization as set forth in this Agreement, the NetActuate Account will be deletion with immediate effect and without prior or further notice.
You must immediately remove or disable access to any duplicative or derivative works of any Content or website in violation. NetActuate may disable pursuant to any section of this Agreement, whether or not such Content has the same title, name or label as the offending Content, is in any other format, form, size or is in or on any other directory or location on our systems. Your failure to do so could subject You to civil liability pursuant to U.S. federal law, and could also result in the suspension or closure of the NetActuate Account.
12. Availability of Service
Further to terms set forth in section 10.4, You understand and agree that interruptions of service may occur due to scheduled or emergency maintenance, updates and repair by NetActuate, or by strikes, riots, vandalism, fires, inclement weather, third-party provider outages, cable cuts, power crisis shortages, acts of terrorism, and or uncontrollable acts of God, or other causes beyond NetActuate's control, as defined by standard practices in the industry. You agree that under no circumstances will NetActuate be held liable for any financial or other damages due to such interruptions. In no event shall NetActuate be liable to You or any other person or party for any indirect, special, incidental, consequential or punitive damages of any kind, including, without limitation, refunds of fees, loss of profits, loss of income or cost of replacement services. Such failure or delay shall not constitute a default under this Agreement.
NetActuate reserves the right to reset the password used to access Your NetActuate Account, in case it is required, such as to protect the account from fraudulent actions, usurpation of identity or legal notice.
From time to time, it may be necessary for us to update certain software, applications and/or Your Servers without prior notice. The updated version may not be compatible with Your Content and/or website(s), and Your Content and/or website(s) may cease to function as expected following the update. In most all cases, we are unable to rollback or otherwise reverse the update. You are solely responsible for adjusting Your Content and website(s) to and ensuring compatibility with the updated version and You agree that NetActuate shall not be liable in any way for any loss or damage You or any other person or party may suffer as a result of our update to certain software, applications and/or Your Servers.
13. Reselling Our Services and Online Stores
13.1. Reselling Space. You are authorized to resell space on Your Servers to third parties and/or to use Your Servers to sell or offer goods or services to third parties (both "Your Users"). You are solely and fully responsible for and to Your Users. Under no circumstances will we be held responsible for or to Your Users in connection with Your Servers. You are not permitted to represent to Your Users or potential customers of Yours that You are NetActuate or have any relationship with NetActuate other than a reseller of NetActuate's services. You may not hold Yourself out as our agent or business partner.
By reselling, You agree to offer Your Users the same level of service quality as provided by NetActuate and to respect the same ethical standards.
You agree to make Your NetActuate TOS, AUP and any other applicable contracts available to Your Users before You enter into a contract with them. You agree to share with us Your contract with User, upon our request.
We will not provide support to Your Users and You may not provide our Customer Support contact information to Your Users for support service purposes.
You take full and unlimited responsibility for the actions of Your Users, and agree to cooperate with us unconditionally should we be made aware that Your Users are acting in a way that violates our Acceptable Use Policy, this Agreement, or the law.
You are required to provide all support to Your Users for any resold products or services.
We will not mediate any dispute or controversy arising between You and Your Users, or Your Users and any third party. However, You agree that we may intervene if required, e.g. legal notice, regulatory claim, etc. Depending of the notice or claim, we will give You prior notice, and will include information available to us and/or deemed necessary for you to take action.
You are responsible for all Content stored or transmitted by Your Users and any other actions of Your Users. We will hold You responsible for any of Your Users' violations of law or the terms of this Agreement, including the Acceptable Use Policy.
Before any reselling of space on Your Servers, You agree to ensure that Your User does not directly or indirectly participate in spamming activities listed in the "Spamhaus" registry (Spamhaus Register of Known Spam Operations, www.spamhaus.org) and is not listed on any blacklist or black hole list.
Our authorization for You to resell space on Your Servers to third parties does not give You any exclusive or territorial rights. We still have the right to enter into reseller relationships with other entities on terms that may differ from our terms with You. Other companies, including NetActuate and our other resellers, can and will compete against You.
You will have no ownership right in our marks, and agree to take no action that might jeopardize our rights in our marks, or appropriate them for Your own use, or those of another.
You are not authorized to make any representation, contract or commitment on our behalf except to the extent specifically requested or authorized by us in writing.
You shall not make written or oral promises or representations to any prospective customer on our behalf.
You acknowledge that we have not promised You any particular reward, income, profits, commission or success for such referrals.
13.2 Online Store Sales Practices. The prices You charge for Your services should be solely determined by You. You are responsible for calculating and collecting from Your Users all charges related to Your services, including any applicable taxes. You agree to refrain from all deceptive, misleading or unethical business practices, and to comply with all applicable policies and procedures as well as applicable state and federal rules and regulations. Any violation by You of this paragraph shall constitute a material breach of this Agreement and, in addition to all remedies available to us, You agree to indemnify and hold us harmless for any fee, fine, penalty or liability imposed against us arising from Your activities.
14. Limitation of NetActuate's Responsibility for Technical Problems
In addition to the general limitation of liability contained in this Agreement and in any other applicable NetActuate Contract, You agree that we cannot be held responsible for any resulting harm in the following specific cases:
Difficulties accessing Your Content or Your Servers, slow download times, or problems sending and receiving emails or any other kind of Content and/or attached files due to overutilization of the network at certain times, the technical characteristics and limits of the Internet, the speed, security or quality of Your Internet connection, or other software or hardware problems, outside of our control;
The theft or intentional, negligent or accidental communication of the username and passwords and/or the access codes associated with Your NetActuate Account;
Problems with the accessibility or functioning of Your Servers related to any applications or content that You put on it;
Problems related to the high volume of web traffic to Your Servers;
Any malware, including, but not limited to, software viruses, Trojan horses, worms, time bombs or any other computer codes, files or programs designed to interrupt, destroy, impair or limit the functionality of any computer software, hardware, telecommunications equipment or other device or equipment;
Any direct or indirect intrusion of a third party into Your Servers (attack, hacking, etc.);
Your receipt of spam or other such undesired or unrequested content or communications;
The listing of one of the IP addresses that You have been assigned on any blacklist or black hole list; and
Loss of Content, under any circumstances.
In order to prevent any abusive use or access to Your Servers by any unauthorized third party, we strongly recommend that You configure Your Servers appropriately, use firewalls and other commercially available security measures, implement security and data protection best practices, and monitor unusual transmissions of Your Servers (i.e. by installing system monitoring software). We do not monitor Your systems for You for this purpose.
In accordance with the NetActuate Contracts, You are solely and fully responsible for Your use of Your NetActuate Account, the NetActuate Services and/or any other associated services. You are responsible for the actions of any Users of Your NetActuate Account or Your Servers or any access codes associated with Your NetActuate Account. You are also responsible for the actions of the Contacts You designate in Your NetActuate Account or Your NetActuate Service.
You agree to defend, indemnify and hold NetActuate and each of its respective affiliates, directors, officers, agents (including trustees) and employees harmless from and against any and all claims, obligations, losses, damages, costs, liabilities and expenses (including reasonable attorneys' fees and costs) incurred by any or all of them arising from or due to any claim, action, dispute or demand made by any third parties (including but not limited to Your customers or licensees) that are related to or arising out of Your use of the any NetActuate service or from Your placement or transmission of any materials or content onto or through NetActuate's servers. Such liabilities may include, but are not limited to: (a) trademark, trade name, trade dress infringement (including cybersquatting or typo squatting claims) and related claims; (b) false advertising claims, (c) liability claims for products or services, (d) infringement or misappropriation of intellectual property rights, (e) violation of rights of publicity or privacy, defamation, libel, slander obscenity, or child pornography, (f) spamming or any other offensive or harassing or illegal conduct (including but not limited to any violation of our acceptable use policy), or (g) any other damage arising from Your equipment, Your business, or Your use of our services.
This indemnification provision is a material provision of this Agreement and shall survive the termination of this Agreement.
16. Limitation of Liability; Disclaimer of Warranties
NetActuate SPECIFICALLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THIS INCLUDES LOSS OF CONTENT, DOMAIN NAMES OR DATA RESULTING FROM DELAYS, NO DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY NetActuate AND NetActuate DOES NOT WARRANT THAT THE SERVICE OFFERED OR PROVIDED BY NetActuate IS FREE OF BUGS, ERRORS, DEFECTS, VIRUSES OR DEFICIENCIES. IN NO EVENT SHALL NetActuate BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, EVEN IF NetActuate HAS BEEN ADVISED BY CUSTOMER OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
YOU MAY NOT BE ABLE TO USE LOCATION BASED EMERGENCY PRODUCTS, SUCH AS 911. WE HAVE NO LIABILITY FOR DAMAGES OR INJURIES OF ANY TYPE, THAT YOU, EMPLOYEES, AGENTS OR AFFILIATES SUSTAIN BASED ON THE FACT THAT LOCATION BASED PRODUCTS ARE UNAVAILBLE. YOU AGREE TO INDEMNIFY AND HOLD US HARMLESS BASED ON THIRD PARTY CLAIMS BASED IN WHOLE OR IN PART ON THEIR INABILITY TO USE A LOCATION BASED SERVICES.
IF NetActuate's SERVICE TO CUSTOMER IS DISRUPTED OR MALFUNCTIONS FOR ANY REASON, NetActuate SHALL NOT BE RESPONSIBLE FOR LOSS OF INCOME DUE TO DISRUPTION OF SERVICE, BEYOND FEES PAID BY CUSTOMER TO NetActuate FOR SERVICE, DURING THE PERIOD OF DISRUPTION OR MALFUNCTION. YOUR SOLE AND EXCLUSIVE REMEDY FOR DEFECTS IN THE SERVICE IS AS SET FORTH IN THIS SECTION.
NetActuate's SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. NetActuate SHALL NOT BE LIABLE FOR ANY DAMAGES YOU OR ANY OTHER PERSON MAY SUFFER. NOTWITHSTANDING THE FOREGOING, YOU AGREE THAT IN NO EVENT WILL NetActuate BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF NetActuate'S SERVICE) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE SERVICE (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF NetActuate'S SERVERS, UNAVAILABILITY OF NetActuate'S CUSTOMER SERVICE TEAMS, OR INABILITY TO REGISTER OR RENEW A DOMAIN NAME), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF NetActuate HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS INCLUDES BUT IS NOT LIMITED TO ANY LOSS THAT MAY OCCUR DUE TO THE FAILURE OF YOU OR YOUR AGENT TO PAY ANY FEES HEREUNDER, THE PROTECTION OR PRIVACY OF ELECTRONIC MAIL OR OTHER INFORMATION TRANSFERRED THROUGH THE INTERNET OR ANY OTHER NETWORK NetActuate OR SERVICE ITS CUSTOMERS MAY UTILIZE, OR THE APPLICATION OF ANY POLICY SET FORTH HEREIN.
NetActuate's MAXIMUM LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO NetActuate FOR THE SERVICE DURING THE PRIOR TWELVE MONTHS, OR $1000, WHICHEVER IS LESS, LESS ANY REFUNDS OR CREDITS RECEIVED BY YOU FROM NetActuate UNDER SUCH ORDER. TO THE EXTENT APPLICABLE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, NetActuate's LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
17. Operation of Our Facilities
In order to implement the services, You may be required to provide us with technical information. If we do not receive this information in a commercially reasonable amount of time, and the Agreement is terminated by us, You will continue to be responsible for all non-recurring charges, and any recurring charges accrued and/or invoiced up to and until termination. We may provide You with an IP address, or addresses. We retain ownership of these IP addresses and may change them at any time. Upon termination of this Agreement, You will not have the ability to transfer these addresses.
18. Force Majeure
Notwithstanding any other provision of this Agreement, neither party shall be held responsible for any loss, damage or delay suffered by the other party owing to any cause that is beyond the reasonable control of the defaulting party and cannot be attributed to negligence or willful nonperformance of its obligation. Such causes include, but are not limited to, wars, embargoes, riots, civil disturbances, acts of terrorism, fires, storms, floods, typhoons, earthquakes and other natural calamities, strikes and labor disputes, government acts and restrictions, failure of the public Internet (including Internet Service Providers and Internet accelerators) and other causes that cannot be overcome or prevented by due diligence. Either party wishing to invoke this Section shall give notice to the other party stating the relevant cause.
The defaulting party shall promptly resume performance of its obligations the moment such cause or causes cease to operate; provided, however, that if the condition continues for a period of more than seven (7) days, the party not claiming Force Majeure under this Section shall have the right to terminate this Agreement.
19.1 Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export laws govern Your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and You agree to comply with all such export laws and regulations (including "deemed export" and "deemed re-export" regulations). You agree that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
19.2 You acknowledge that the NetActuate Services are designed with capabilities for You and Your Users to access the Services Environment without regard to geographic location and to transfer or otherwise move Your Content and Your Applications between the Services Environment and other locations such as User workstations. You are solely responsible for the authorization and management of User accounts, as well as export control and geographic transfer of Your Content and Your Applications.
20.1 Any notice required under this Agreement shall be provided to the other party in writing. If You have a legal dispute with NetActuate or if You wish to provide a notice under the Indemnification Section of this Agreement, or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to:
3941 Park Dr #20337,
El Dorado Hills,
CA 95762, USA
20.2 To request a termination of Services in accordance with this Agreement, You must submit a service request to NetActuate using the service portal or the email address specified in Your Services Order or Statement of Work (SOW).
20.3 NetActuate may give notices applicable to NetActuate's customer base by means of a general notice on the NetActuate portal for the NetActuate Services, and notices specific to You, to Your e-mail address on record in NetActuate's account information, or by written communication sent by mail to Your address on record in NetActuate's account.
21. Miscellaneous Provisions
21.1 No waiver of any provision in this Agreement shall be deemed a further or continuing waiver of such provision or any other provision. If any provision is found to be void, unlawful or unenforceable for any reason, that portion shall be deemed severable from these terms and shall not otherwise affect the validity and enforceability of any remaining provisions.
21.2 Except for actions for nonpayment or breach of NetActuate's proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one year after the cause of action has accrued.
21.3 You remain solely responsible for your regulatory compliance in connection with Your use of the Services. As stated in section 5.3, it is Your responsibility to assure that You comply with such mandatory obligations and/or notices that pertain to any activity or use of NetActuate services, so that NetActuate is not required to address or process them. Within the extent of applicable laws, You must make sure that any third party can successfully contact You in order to inform You directly and easily regarding and content that is illicit or prejudicial that would be made available through the use of any of NetActuate Services. You must assure that there are legal notices on each of Your websites that You operate via any of the services provided by NetActuate and associated with Your NetActuate Account.
You are responsible for making NetActuate aware of any technical requirements that result from Your regulatory obligations prior to entering into an order governed by this Agreement. NetActuate will cooperate with Your efforts to determine whether use of the standard NetActuate Services offering is consistent with those requirements. Additional fees may apply to any additional work performed by NetActuate or changes to the Services.
21.4 NetActuate may audit Your use of the Services (e.g., through use of software tools) to assess whether Your use of the Services is in accordance with Your order and the terms of this Agreement. You agree to cooperate with NetActuate's audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You agree to pay, within thirty (30) days of written notification, any fees applicable to Your use of the Services in excess of Your rights. If You do not pay, NetActuate can end Your Services and/or Your order. You agree that NetActuate shall not be responsible for any of Your costs incurred in cooperating with the audit.
21.5 Each party shall employ at least a reasonable degree of care in protecting the other party's confidential information. Confidential information includes (i) all information exchanged between the parties that is marked confidential or proprietary or should reasonably be considered confidential by virtue of the nature of its disclosure or the information contained therein; (ii) trade secrets, know-how, customer data, business plans, marketing plans, or other information related to the business of each party. Confidential information of a party does not include: (i) information that is publicly known or becomes publicly known through no fault of the party receiving such information, (ii) information that is independently developed by the receiving party without access or reference to the other party's confidential information, or (iii) information that is provided to the receiving party by a third party without confidentiality restrictions.
22. Applicable law; Jurisdiction; Venue
All issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement, or the rights and obligations of You or NetActuate with respect Your relationship, shall be governed by, and construed in accordance with, the substantive laws of the State of California, United States of America without regard to conflicts of law principles.
IN CASE OF DISPUTE, THE PARTIES IRREVOCABLY SUBMIT TO VENUE AND EXCLUSIVE PERSONAL JURISDICTION IN THE FEDERAL AND STATE COURTS IN LOS ANGELES COUNTY, CALIFORNIA, FOR ANY DISPUTE ARISING OUT OF THIS AGREEMENT, AND WAIVE ALL OBJECTIONS TO JURISDICTION AND VENUE OF SUCH COURTS.
Terms Last Updated: December 1, 2016