These General Terms and Conditions together with all Order Form(s), Supplements and other addenda and service-specific terms and conditions attached hereto from time to time constitute the Master Products and Services Agreement (“Agreement”) between ADF, Inc. d/b/a/ eBoundHost.com (“EBH” or “eBoundHost”), an Illinois corporation and You ("Customer"). EBH and Customer are collectively referred to as the "Parties" or individually as a “Party”.
“Acceptable Use Policy” – EBH’s guidelines for acceptable uses of EBH’s service, set forth on the EBH Website and updated from time to time.
“Anti-SPAM Policy” – EBH’s policy on SPAM generated thru the use of EBH’s Products or Services, set forth on the EBH Website and updated from time to time.
“Commencement Date” - the date upon which EBH provisions an ordered Product or Service as more fully described in the relevant Order Form.
“Customer Location” - a location designated in an Order Form for connection to the EBH Network, if outside a Datacenter Facility.
“Datacenter Facility” – A location where EBH maintains a presence for the physical housing of computer and/or network equipment.
“Online/Phone Order” – any order for Products or Services placed by telephone or email to EBH which requires only verbal/written consent, and accepted by EBH. These orders are limited in scope to on-demand remote hands services and spare parts provided by EBH to Customer at Customer’s request.
“Order Form” - any mutually executed sales order (“Sales Order”), schedule (“Schedule”), or statement of work (“Statement of Work”) to these General Terms and Conditions and respective service-specific terms and conditions, detailing the Products or Services, the Term, Customer charges, the estimated Commencement Date and any other relevant terms agreed upon by the Parties.
“Products or Services” - the products or services provided by EBH (including, without limitation, co- location, bandwidth, managed services including remote hands, computer hardware, and hosting) to Customer.
“EBH Network” - collectively, the network, system capacity and related facilities (including, without limitation, routers, switches and communication channels) owned or controlled by EBH.
“EBH Website” –EBH’s company website, published at http://eboundhost.com
“Service Level Agreement” – a set of terms and performance guarantees which apply to specific services provided by EBH to Customer, contained in a Supplement (defined below).
“Supplement” – a set of terms and conditions specific to certain services provided by EBH which govern Customer’s use of Products or Services.
“Term” - the period of time in which EBH provides Products or Services to Customer pursuant to an Order Form and/or any Supplement.
2. STRUCTURE OF AGREEMENT
2.1. Order Forms. From time to time, the Parties will execute one or more Order Forms for EBH to provide Products or Services, each of which shall be governed by, and automatically incorporated by reference into, this Agreement and shall be subject to this Agreement.
2.2. Supplements. EBH may provide Supplements which contain supplemental terms and conditions specific to certain services provided by EBH to Customer which include any Service Level Agreement applicable to the services described therein. Any Supplement, when executed by the Parties, shall be governed by, and automatically incorporated by reference into, this Agreement and shall be subject to these General Terms and Conditions.
3. INVOICING AND PAYMENT
3.1. If a non-recurring charge for installation or setup fee (“Installation Charge” or “NRC”) is specified in an Order Form, EBH will invoice Customer for and Customer will pay such Installation Charge upon the effective date of the Order Form (“Order Form Effective Date”). If the Installation Charge is “estimated”, Customer shall pay an initial amount, as specified on such Order Form, on the Order Form Effective Date and the remaining balance of the “actual” Installation Charge upon the Commencement Date. The balance of the actual Installation Charge will be invoiced by EBH and paid by Customer within thirty (30) days of such invoice.3.2. If a recurring charge (“Recurring Charge”) (e.g. Monthly Charge (“MRC”), Quarterly Charge, Annual Charge, etc.) is specified in an Order Form, EBH will invoice Customer for and Customer will pay Recurring Charge in advance for each period and within thirty (30) days from the date of such invoice. EBH will begin to invoice the Recurring Charge on the Commencement Date. Invoices for partial months will be pro-rated.
3.3. If a prepayment (“Prepayment”) is specified in an Order Form, EBH will invoice Customer for and Customer will pay such Prepayment upon the Order Form Effective Date. If a Prepayment is for a portion of a Term, the amount of such Prepayment will be applied as a credit to the final Recurring Charges at the end of such Term.
3.4. If an operation and maintenance charge (“O&M Charge”) is specified in an Order Form, EBH will invoice Customer for and Customer will pay such O&M Charge beginning on the Commencement Date in advance of each month during the Term and within thirty (30) days from the date of such invoice.
3.5. If applicable, EBH will invoice Customer and Customer will pay such invoices for any additional charges for Products or Services which are more fully described in the respective Order Form.
3.6. All invoices must be paid in accordance with their terms without setoff or deduction, and late payments will accrue interest on the unpaid sum as of the date of the invoice at the lesser of (i) the highest legal rate of interest permitted in the state of Illinois or (ii) one and one-half percent (1.5%) per month. EBH may apply any payments received by EBH to any one of Customer’s then outstanding charges. EBH may apply any payments received by EBH to any one of Customer’s then outstanding charges.
3.7. Unless otherwise specified, all payments must be made by Customer to EBH in United States of America dollars.
3.8. For Services ordered through Sales Orders, the initial rates and fees for such Services will be listed on the Sales Orders. In the event that Customer places an order for Services from EBH using a method acceptable to EBH other than a Sales Order, including the EBH Website or Support Ticketing System, the initial rates and fees for such Services will be EBH’s then-current list price for such Services. The rates and fees for Services ordered by Customer on an Order Form or Online/Phone Order will remain in effect for one year from the date of the Order. Thereafter, rates and fees will be subject to change, at EBH’s reasonable discretion, upon sixty (60) days’ prior written notice, at a rate not to exceed one percent (1%) per year; provided, however, if EBH’s annual cost to provide such Services increase more than one percent (1%), EBH may increase the rate for such Services at such increased cost (EBH will provide reasonable evidence to verify such cost increases). Notwithstanding the foregoing, there are no restrictions on EBH’s right to modify its rates and fees for Services as to Orders not in effect prior to such changes.
3.9. If Customer wishes to dispute any charge billed to Customer by EBH (a “Disputed Amount”), Customer must submit a good faith claim regarding the Disputed Amount with such documentation as may reasonably be required to support the claim within ninety (90) days of receipt of the initial invoice sent by EBH regarding the Disputed Amount. If Customer does not submit a documented claim within ninety (90) days of receipt of the initial invoice sent by EBH regarding such Disputed Amount, notwithstanding anything in this Agreement to the contrary, Customer waives all rights to dispute such Disputed Amount and Customer waives all rights to file a claim thereafter of any kind relating to such Disputed Amount (and Customer also waives all rights to otherwise claim that it does not owe such Disputed Amount or to seek any set-offs or reimbursements or other amounts of any kind based upon or relating to such Disputed Amount).
4. APPLICABLE TAXES
Each Party is fully responsible for the payment of any and all taxes required by law to be paid by that Party. Customer will pay all taxes, governmental fees, and third-party charges related to the ownership and operation of Customer’s Equipment and the activities of Customer at each Datacenter Facility. Without limiting the foregoing, Customer is responsible for timely paying in full all sales, use, transfer, privilege, excise, and all other taxes and duties, whether international, national, state or local, however designated, now in force or enacted in the future, which are levied or imposed by reason of the performance by EBH or Customer under this Agreement or by Customer with respect to its operations and use of the Datacenter Facility and Customer’s Equipment, including any pro-rata leasehold/license pass thru items, if any (“Taxes”); but the term “Taxes” will exclude income taxes on EBH’s profits which may be levied against EBH. The rates and fees on an Order Form (as well as the list prices for the Online/Phone Orders) are exclusive of the Taxes, which Customer will also be responsible for paying at the same time it pays the amounts listed on the Orders. Any applicable Taxes that EBH must collect and remit which must be paid directly to EBH will be stated separately on each invoice. In addition, Customer’s Equipment will not be construed to be fixtures, and Customer is responsible for preparing and filing any necessary return with, and paying any and all Taxes separately levied or assessed against Customer’s equipment to any governmental, quasi-governmental or tax authorities by the date such payments are due.
5. TERM OF AGREEMENT AND TERMINATION
5.1. This Agreement commences on the Effective Date and continues through the latest expiration of all Order Form Term(s) subject to this Agreement, unless earlier terminated as provided herein.
5.2. The Term for each Order Form shall begin on the Commencement Date of the related Product or Service and shall remain in effect until the expiration of the period so specified. Upon the expiration of a Term set forth on an Order Form, such Order Form will renew for a successive one (1) month term unless notice of non-renewal is provided by Customer upon at least thirty (30) days prior written notice (or by EBH upon at least thirty (30) days prior written notice). The pricing for any such renewal will be mutually agreed upon by the Parties. Notwithstanding the foregoing, if the Commencement Date of an Order Form or Online/Phone Order occurs on a day other than the first day of a month, Customer shall be responsible for charges beginning on the Commencement Date and EBH will bill for the pro-rata portion of the month in which Service was provided, and the Term will then start on the first day of the subsequent month. By way of example, an Order Form with a twelve (12) month Term has a Commencement Date of December 15, 2012, Customer shall be responsible for the pro-rata Recurring Charges beginning on December 15, 2012 to December 31, 2012, and the Term of the Order Form or Online/Phone Order shall begin on January 1, 2013 for a period of twelve months.
5.3. Notwithstanding anything in this Section 5 to the contrary, each Order Form which contains a one (1) month Term shall renew for consecutive one (1) month Terms, unless written notice of non-renewal is provided by either Party, upon at least thirty (30) days prior written notice.
5.4 If EBH is required to procure any of the Products or Services listed on an Order Form from a third party, EBH may provide Customer with a Third Party Service Details form which will list the Commencement Date, applicable Term, and the notice period required for renewal or non-renewal (as the case may be), as well as any terms and conditions which are imposed upon EBH (including automatic renewal, if applicable) by the third party service provider. If a Third Party Service Details form is required in conjunction with an Order Form, EBH may state this on the applicable Order Form. Customer acknowledges that EBH may deliver the Third Party Service Details form after execution of the Order Form, once the applicable Products or Services are ordered from the third party provider and a provisioning date is provided by the third party provider. In addition, Customer agrees to the following: (i)that the terms and conditions set forth on the Third Party Service Details form shall supersede those listed on the Order Form (except for pricing, excluding any applicable taxes levied on EBH by the third party provider related to the service being resold), (ii) in conjunction with any cancellation of services from a third party, Customer will be responsible for all termination charges imposed upon EBH by the third party, and (iii) in the event of conflict between the Third Party Service Details form and this Agreement, the Third Party Service Details shall control.
5.5. EBH may terminate this Agreement as to any affected co-location services if any portion of the Datacenter Facility in which the affected co-location services are located becomes subject to a condemnation proceeding or is condemned, EBH’s possession is otherwise terminated or abated, or EBH cannot provide Customer with the access to the affected Datacenter Facility as contemplated herein for a period exceeding thirty (30) days.
Events of Default: The occurrence of any of the events listed below shall be considered an event of default, which gives the non-defaulting Party the right to terminate the Agreement or affected Order Form(s) by written notice following the expiration of any stated cure periods and pursue its remedies under this Agreement:
Customer fails to fully pay any of the payments (including Early Termination Charges) required hereunder within thirty (30) days after receipt of written notice of such failure;
Except as provided in clause (a), above, the breach of any material term or condition of this Agreement (including Order Forms or Supplements) and such breach remains uncured thirty (30) days after delivery to the breaching Party of written notice of such breach by the non-breaching Party. If the breach is of a nature or involves circumstances reasonably requiring more than thirty (30) days to cure, the time period may be extended provided the breaching Party proceeds diligently to cure the breach;
The application for or consent to the appointment of a receiver, trustee or similar officer for it or any substantial part of its property or assets, or any such appointment is made without such application or consent by such Party and remains undischarged for a period of sixty (60) days;
The filing of a petition in bankruptcy or a general assignment for the benefit of creditors;
Customer defaults under the terms of any other agreement, Supplement or Order Form between the parties whether such other agreement is executed prior or subsequently to the execution of this Agreement.
If Customer is in default, as set forth above, then, after expiration of the cure period, EBH may, in addition to any other remedies that it may have under this Agreement or by law, disconnect, repossess and/or distrain any Products or Services, or Customer equipment located at a Datacenter Facility. If EBH retains counsel for collection or enforcement of Customer's obligations hereunder or to represent EBH in any bankruptcy, reorganization or, receivership proceedings, then Customer shall pay to EBH all reasonable attorneys' fees, costs and expenses incurred in connection therewith. If Customer is in default under any obligation of this Agreement or any Order Form, Customer will be in default of all Order Forms and this Agreement. Notwithstanding anything in this Agreement or on any Order Form to the contrary, any payment required to cure a Customer default must be remitted to EBH in certified funds or wire transfer.
7. REPRESENTATIONS AND WARRANTIES
7.1. Warrants. EBH warrants that any Products and Services to be provided to Customer will be at a commercially reasonable level of quality conforming to generally accepted industry standards and in compliance in all material respects with all applicable laws and regulations. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, EBH DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
7.2. Each Party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter into and perform its obligations under this Agreement and all Order Forms, (iii) it will comply with all applicable federal, state and local laws, statutes, rules and regulations in connection with the provision and use of the Products and Services and (vi) this Agreement and all Order Forms, when executed, are the legal, valid and binding obligation of such Party.
7.3. Customer warrants that it does not and will not engage in the sale of goods or services that infringe upon the intellectual property rights of a third party or utilize any domain name which infringes upon third party intellectual property rights. Customer will monitor its customers, if any, which utilize Customer’s Services to verify compliance with the warranty set forth in this Section 7.3.
8. LIMITATION OF LIABILITY; INDEMNIFICATION
8.1. THE TOTAL LIABILITY OF EITHER PARTY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH AN ORDER FORM OR OTHER SERVICE, EXCLUDING EARLY TERMINATION CHARGES, ATTORNEYS' FEES PURSUANT TO SECTION 6 ABOVE, THE INDEMNITIES SET FORTH IN SECTIONS 8.2 AND 8.3, AND THE CONFIDENTIALITY OBLIGATIONS OF SECTION 9.1 BELOW, IS LIMITED TO AN AMOUNT EQUAL ONE POINT FIVE TIMES (1.5X) THE TOTAL CHARGES PAYABLE BY CUSTOMER DURING THE TERM SET FORTH THEREIN. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, SPECIFICALLY EXCLUDING ANY VIOLATION OF A PARTY’S CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 9.1 BELOW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR LOST BUSINESS OPPORTUNITIES (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF SERVICE OR OTHERWISE), WHETHER FORESEEABLE OR NOT, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. CUSTOMER WAIVES ANY RIGHT TO SEEK INJUNCTIVE RELIEF FOR ANY CAUSE OR MATTER ARISING FROM THIS AGREEMENT HOWEVER SPECIFICALLY EXCLUDING ANY VIOLATION BY EBH OF THE CONFIDENTIALITY PROVISIONS SET FORTH IN SECTION 9.1 BELOW. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY TO CLAIMS OF CUSTOMER, WHETHER OCCASIONED BY ANY CONSTRUCTION, INSTALLATIONS, RELOCATIONS, SERVICE, REPAIR OR MAINTENANCE PERFORMED BY, OR FAILED TO BE PERFORMED BY EBH, OR ANY OTHER CAUSE WHATSOEVER, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, GROSS NEGLIGENCE, OR STRICT LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA OR TECHNOLOGY.
8.2. EBH agrees to indemnify, defend and hold Customer, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney’s fees and expenses) by reason of any claims or actions by third parties for (i) bodily injury or death, and damage, loss or destruction of any real or tangible personal property, which third party claims arise out of or relate to EBH’s gross negligence or willful misconduct or (ii) infringement or misappropriation by EBH of any intellectual property rights under this Agreement.
8.3. Customer agrees to indemnify, defend and hold EBH, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney’s fees and expenses) by reason of any claims or actions by third parties, including those of customers of Customer, for (i) bodily injury or death or damage, loss or destruction of any real or personal property (including without limitation the property of EBH), which third party claims arise out of or relate to Customer’s gross negligence or willful misconduct, (ii) infringement or misappropriation by Customer of any intellectual property rights under this Agreement, or (iii) Customer’s or customers of Customer (if any) or any third party’s use of the Products or Services, including without limitation, defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity, or spamming or any other tortious or illegal conduct, or (iv) any harm or claims arising out of acts of omission of any customers of Customer (if any) or any third parties using Customer’s equipment or service that is subject of this Agreement.
8.4. Customer agrees that EBH is not responsible for loss or damage to equipment and property stored or installed in a EBH site. Customer agrees to maintain insurance coverage on equipment and property stored or installed at each EBH site which covers any type of loss and includes a waiver of subrogation clause, and to provide a certificate of insurance which evidences this coverage and names EBH as an additional insured upon request. EBH shall not be liable for damage to, or loss of any of Customer equipment resulting from any cause, other than EBH’s negligence or willful misconduct and then only in an amount not to exceed the actual cash value of the damaged equipment, and not to exceed the limits set forth in Section 8.1.
8.5. Customer shall have no right or interest in any EBH-supplied equipment other than the right to use such equipment during the specified term while payments are current. Customer shall be liable to EBH for any damage to such equipment caused by Customer or Customer’s representatives, agents or employees, or customers of Customer (if any).
9. CONFIDENTIALITY; PUBLICITY
9.1. Confidentiality. Each Party agrees that the terms of this Agreement and all information furnished to it by the other Party, including maps, pricing, financial terms, network routes, design information, methodologies, specifications, locations or other information to which it has access under this Agreement, are deemed the confidential and proprietary information or trade secrets (collectively referred to as “Proprietary Information”) of the Disclosing Party and will remain the sole and exclusive property of the Disclosing Party (the Party furnishing the Proprietary Information referred to as the “Disclosing Party” and the other Party referred to as the “Receiving Party”). Each Party will treat the Proprietary Information that the Receiving Party either knows or reasonably should know to be confidential to the Disclosing Party and the contents of this Agreement in a confidential manner and, except to the extent necessary in connection with the performance of its obligations under this Agreement, neither Party may directly or indirectly disclose the same to anyone other than its employees or third parties identified within an Order hereunder on a need to know basis and who agree to be bound by the terms of this Section, without the written consent of the Disclosing Party. Information will not be deemed Proprietary Information if it (i) becomes publicly available other than through the actions of the Receiving Party; (ii) is independently developed by the Receiving Party; or (iii) becomes available to the Receiving Party without restriction from a third party. If the Receiving Party is required by a governmental or judicial law, order, rule, regulation or permit to disclose Proprietary Information, it must give prompt written notice to the Disclosing Party of the requirements of such disclosure and cooperate fully with the Disclosing Party to minimize such disclosure, and disclosure after such notice shall not be a breach hereof. Notwithstanding anything in this Agreement to the contrary, the provisions of this Section 9.1 will survive termination of the Agreement by either Party for any reason for a period of two (2) years after the date of termination.
9.2. Publicity. Notwithstanding anything herein to the contrary, neither party may release a public statement announcing the Agreement (“Press Release”) without the prior written consent of the other party.
Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, which consent may not be unreasonably withheld, except that either party may assign this Agreement upon notice and without consent to a person, firm, corporation, partnership, association, trust or other entity (i) that controls, is controlled by or is under common control with Customer or (ii) into which it is merged or consolidated or which purchases all or substantially all of its assets; provided that the assignee assumes all liabilities hereunder in writing prior to the effectiveness of such assignment. Any assignment or transfer without the required consent will be void and will be considered a material breach of this Agreement. Upon any permitted assignment, the assigning party will remain jointly and severally responsible for the performance under this Agreement, unless released in writing by the other party, and this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. In the event that (a) EBH makes an assignment for the benefit of creditors; (b) a liquidation proceeding under any foreign, state or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is commenced by EBH, or (c) EBH ceases doing business as a going concern, then EBH will cooperate and perform all actions reasonably requested by Customer to facilitate the assignment of this Agreement and/or the transfer of EBH’s obligations hereunder to EBH’s successor, or, upon Customer’s request, to the Datacenter Facility.
11. FORCE MAJEURE
Neither party will be considered in breach of this Agreement nor liable under this Agreement for any delays, failures to perform, damages or losses, or any consequence thereof, caused by or attributable to an event of “Force Majeure,” which is defined as any cause beyond the reasonable control of the party claiming relief, including but not limited to the action by a governmental authority (such as a moratorium on any activities related to this Agreement or changes in government codes, ordinances, laws, rules, regulations, or restrictions occurring after the Effective Date), third-party labor dispute, flood, earthquake, fire, lightning, epidemic, war, act of terrorism, riot, civil disturbance, act of God, sabotage, fiber cut caused by a third-party or failure of a third party to recognize a permit, authorization, right-of-way, easement, right, license or other agreement obtained by EBH to construct and operate its facilities or network.
All notices, including but not limited to, demands, requests and other communications required or permitted hereunder (not including invoices) must be in writing and will be deemed given: (i) when delivered in person, (ii) one (1) business day after deposit with an overnight delivery service for next day delivery, or (iii) three (3) business days after deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested, and addressed to the recipient Party at the address set forth on the signature page hereof. In addition, EBH shall have the right to send Customer notices, other than notices for default or termination, to Customer’s email address as contained on EBH’s customer contact list. Such email notification is deemed delivered on the day sent unless returned to sender.
13.1. Governing Law; Jurisdiction. This Agreement will be interpreted and construed in accordance with the internal laws of the State of Illinois without giving effect to its principles of conflicts of laws. Any legal proceeding arising out of, or relating to this Agreement, will be brought in a United States District Court, or absent federal court jurisdiction, in a state court of competent jurisdiction.
13.2. Survival. The Parties’ respective representations, warranties, and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of this Agreement and continue in full force and effect for a period of two (2) years after the date of termination.
13.3. No Third-Party Beneficiaries. The covenants, undertakings, and agreements set forth in this Agreement are solely for the benefit of and enforceable by the Parties or their respective successors or permitted assigns.
13.4. Relationship of the Parties. The relationship between the Parties hereunder is not that of partners or agents for one another and nothing contained in this Agreement may be deemed to constitute a partnership, joint venture or agency agreement between them.
13.5. Remedies Not Exclusive. Except as otherwise expressly provided, the rights and remedies set forth in this Agreement are in addition to, and cumulative of, all other rights and remedies at law or in equity.
13.6. Headings; Separability. The headings in this Agreement are strictly for convenience and do not amplify or limit any of the terms, provisions or conditions hereof. In the event any term of this Agreement is held invalid, illegal or unenforceable, in whole or in part, neither the validity of the remaining part of such term nor the validity of the remaining terms of this Agreement will be in any way affected.
13.7. No Implied Waiver. No failure to exercise and no delay in exercising, on the part of either Party, any right, power or privilege hereunder will operate as a waiver, except as expressly provided herein.
13.8. Counterparts. This Agreement may be executed in counterparts, including by facsimile transmission, each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
13.10. Precedence. Except as may be set forth herein, this Agreement supersedes all previous and contemporaneous written and oral representations, understandings, or Agreements related to the subject matter herein (including without limitation the Master Products and Services Agreement dated March 5, 2013) and shall prevail notwithstanding any variance with terms and conditions of any Order Form submitted, unless otherwise agreed to in writing by both Parties.
14. ACCEPTABLE USE
14.1. Acceptable Use; SPAM. Customer will at all times comply with and conform its use of the Service to EBH’s Acceptable Use Policy and Anti-SPAM Policy set forth at the EBH Website, as updated from time to time, subject to notice to Customer of any material changes. In the event Customer materially violates the EBH Acceptable Use Policy where EBH determines in its reasonable discretion that there is potential harm to its Network or business, EBH shall have the right to immediately suspend Service. In other cases of violation of the Acceptable Use Policy and Anti-SPAM Policy, EBH will provide notice and opportunity to cure, to the extent EBH deems reasonably appropriate, depending on the nature of the violation, the availability of the Customer and whether or not there has been a repeat violation. EBH, in its reasonable discretion, shall re-enable the Service upon satisfaction that all violations have ceased and with adequate assurance that such violations will not occur in the future.
14.2. Illegal Use. Customer will cooperate in any investigation of Customer’s alleged illegal use (or that of its customers, if any) of EBH’s facilities or other networks accessed through the EBH Network. If Customer fails to cooperate with any such investigation, EBH may suspend Customer’s Service. Additionally, EBH may modify or suspend Customer’s Service in the event of illegal use of the EBH Network or as necessary to comply with any law or regulation, including but not limited to the Digital Millennium Copyright Act of 1998. 17 U.S.C. 512 copyright infringement, or to prevent counterfeiting and cyber squatting as reasonably determined by EBH.
disk space means that you can use whatever disk space is needed for your web hosting needs. EBH web hosting service is intended to be used for hosting websites, not backup or file storage or archive. EBH makes every reasonable commercial effort to provide Customer with the resources required for their websites. An individual Customer's usage (Disk/CPU/RAM) may not adversely impact the performance of other customers' web sites. If one customer adversely affects the performance of their server, we will take preventative measures to ensure that other customers are protected. This could mean asking the impacting customer to reduce usage or simply discontinuing service temporarily or permanently. We will make all reasonable commercial effort to give advance notice of discontinuation to the customer but may act without notice at our discretion.
15.1. Government Regulations. Customer will not export, re- export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by any government within whose jurisdiction Customer operates or does business.
16. EARLY TERMINATION CHARGES
16.1. If an Order Form is terminated prior to expiration by reason of: (i) Customer termination (“Termination for Convenience”), if such termination is not an exercise of Customer’s rights or remedies under the Agreement, or (ii) a Customer Event of Default for failure to pay any payment, as provided, herein, then, in addition to all other sums due and owing, Customer agrees to pay an “Early Termination Charge” to EBH.
16.2. For service terminated prior to the end of the Term, an early termination charge will be calculated as an amount equal to the aggregate of all remaining Recurring Charges until the end of the Term (the “Early Termination Charge”).
16.3. If the Recurring Charges (or a component of the Recurring Charges) are fully prepaid, the Early Termination Charge is equal to the unamortized portion of such prepayment as of the date of termination.
16.4. Customer acknowledges and agrees that the Early Termination Charge reflects a reasonable estimate of the damages incurred by EBH as a result of an early termination, and is not a penalty. Notwithstanding the foregoing, EBH may seek all other available remedies in law and in equity in the case of Customer’s default resulting from any reason, other than nonpayment.
17. ACCESS TO CUSTOMER DATA OR USE OF THE SERVICES.
17.1 EBH is not responsible for unauthorized access to Customer data or the unauthorized use of the Services. Customer is responsible for the use of the Services by any employee of Customers, any person to whom Customer may have given access to the Services, and any person who gains access to Customer data or the Services as a result of Customer failure to use reasonable security precautions, even if such use was not authorised.
17.2 EBH agrees that it will not use or disclose Customer Data, except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. EBH agrees not to disclose the Customer Data to any third person except as follows:
17.2.1 to a law enforcement or government agency if requested or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law;
17.2.2 as required by law; or
17.2.3 in response to a court order or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Customer Data under this subsection (or prompt notice in advance of disclosure, if seven (7) days’ advance notice is not reasonably feasible), unless the law forbids such notice.
17.3 Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
18. OWNERSHIP OF PHYSICAL AND INTELLECTUAL PROPERTY.
Customer does not acquire any ownership interest in or right to possess the hosted system or ip address space or scripts outside of the user home directory, no right to access as "root" user, and Customer has no ownership or right of physical access to the hosted system or any components thereof. We do not acquire any ownership interest in or right to the transmitted information to or from or store on Customer EBH servers or other devices or media.
19. CHANGES TO THE TERMS ON WEBSITE
This MSA may have been incorporated in Customer Order by reference to a page on the EBH website or Service Order. We may from time to time revise the Terms of Service posted on that page.
20. UNSUPPORTED CONFIGURATION
If Customer asks us to implement a configuration element (hardware or software) or related service in a manner that is not customary at EBH, or that is in “end oflife” or “end of support” status we may designate the element or service as “unsupported”, “non-standard”, “best efforts”, “reasonable endeavours”, “one-off”, “EOL”, “End of Support”, or with like term (referred to in this Section as an “Unsupported Service”). EBH makes no representation or warranty whatsoever regarding the Unsupported Service, and Customer agrees that EBH shall not be liable for any loss or damage arising from the provision of the Unsupported Service. Service Level Guarantees shall not apply to the Unsupported Service, or to any other aspect of the Services that is adversely affected by the Unsupported Service. Customer acknowledges that Unsupported Services may not interoperate with EBH's other services, such as backup or monitoring
Except as expressly set forth to the contrary in a Work Order, ownership of Inventions and related intellectual property rights will be allocated as follows:
21.1 Inventions. All works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information (a) conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship, or ownership), solely or in collaboration with others, in the course of performing the Services; (b) that reflect or contain ADF’s Confidential Information; or (c) that form all or part of a deliverable provided as part of the Services, whether developed as part of the Services or separately, but excluding Pre-Existing Works (collectively, “Inventions”) will be the sole property of EBH.
22. REMOTE HANDS AND MANAGED SERVICE
EBH may provide Remote Hands and Management services to Customer, subject to the following terms and conditions:
Customer may request Remote Hands and Management services via email or telephone. EBH will assign each request a unique ticket number, which will be billed to Customer upon completion as an Online/Phone Order. In certain Datacenter Facilities where EBH staff is available, the Remote Hands and Management service is provided by EBH employees. In facilities where EBH does not have a staff presence, the Remote Hands and Management service is provided by a third party. In facilities where Remote Hands and Management are provided by a third party, EBH will pass thru the charges from the third party, as well as the EBH staff’s time spent coordinating the third party. Charges from third parties are not subject to any negotiated discount that EBH may offer for Remote Hands and Management provided by EBH staff.
Remote Hands and Management service provided by EBH staff is billed in 30-minute increments, with a 60-minute minimum. Charges from third party service providers will be subject to the provider’s applicable minimums and billing increments. Remote Hands and Management service provided by EBH staff may be purchased at a discounted rate by committing to a prepaid block of time. Prepaid blocks may be purchased on a one-time basis to receive a discounted rate for a specific project or Order Form, or may be purchased as a monthly recurring service. If Customer purchases a prepaid block of Remote Hands and Management time and the time billed exceeds the amount of time purchased, Customer shall receive the discounted rate negotiated in the prepaid block for the extra time within the same calendar month or project, as the case may be. Unused time in any prepaid block sold as a monthly Recurring Charge shall expire at the end of the calendar month in which the prepaid block
23. SERVICE LEVEL AGREEMENTS
EBH will use commercially reasonable efforts to maximize availability of the service.
23.1. Customer Credit Request. Customer must notify EBH within five (5) business days from the time Customer becomes eligible to receive a credit under this Supplement to receive such credit. Failure to comply with this requirement will forfeit Customer’s right to receive a credit. Credits are calculated after deduction of all discounts and other special pricing arrangements, and are not applied to governmental fees, taxes, surcharges, and similar additional charges.
23.2. Limitation on Remedies. If Customer is entitled to multiple credits under this Supplement, any other Supplement or the Agreement, such credits shall not be cumulative beyond a total of credits for two (2) weeks in any one (1) calendar month in any event. Customer shall only be eligible for one (1) credit, any other Supplement or the Agreement for any single event, even if multiple guarantees are not met. By way of example and not limitation, if a Power Outage and a Temperature Irregularity occur simultaneously, Customer shall only be eligible for one credit by this Agreement. This Sections states Customers sole and exclusive remedy for any failure by EBH to provide adequate service levels, including, but not limited to, any outages. Except as set forth in this Agreement, EBH makes no claims regarding the availability performance of the service.
23.3. Exclusions. Notwithstanding anything in these Service-Specific Terms and Conditions to the contrary, Customer shall not receive any credits under these Service Level Agreements in connection with any failure or deficiency caused by or associated with any of the following: Failure of Customer-owned equipment used in connection with the Licensed Spaces Circumstances beyond EBH’s reasonable control, defined as Force Majeure in the Agreement. False SLA breaches reported as a result of outages or errors of any SLA measurement system. Acts or omissions by Customer, Customer’s agents, Customer’s contractors, or Customer’s vendors, including but not limited to negligence, willful misconduct, breach of EBH’s Acceptable Use Guidelines or Anti-SPAM Policy, failure to provide EBH or its agents adequate access to the facilities, or otherwise causing EBH to be unable to meet any of the criteria set out in this SLA. Results from incorrect installation, operation, or malfunction of Customer’s equipment. Scheduled maintenances or necessary network upgrades. Disconnection by EBH for non-payment or other Customer default or breach under the terms of this Agreement.
24. ENTIRE AGREEMENT; AMENDMENT; EXECUTION
This Agreement, including all Order Forms, Supplements and addenda attached hereto is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings and agreements, whether oral or written. This Agreement may be amended only by a written instrument executed by the Parties.
Address notices for ADF Inc.:
eBoundHost – ADF Inc.
PO Box 113
Skokie, IL 60076
This Agreement may be executed in multiple counterparts, all of which taken together constitute one and the same instrument. This Agreement may be executed by email or facsimile or by acceptance of a Service Order or by acknowledging with a link to or check box during an online order process.