Your use of WebConnect Hosting is governed by these Terms of Service, the WebConnect Acceptable Use Policy, the Rackspace Cloud Acceptable Use Policy, and the terms of your Order. When we use the term "Hosting Agreement" or "Agreement" in any of the Order, Terms of Service, or Acceptable Use Policies, we are referring collectively to all of them. To the extent described in this Agreement, the Agreement provides for internet hosting services using WebConnect's Rackspace Cloud service, or such other Services that may be explicitly described in your Order. Your licensed rights, remedies, and obligations for your use of WebConnect Server Software (or any other software) installed onto WebConnect Hosting is covered separately under any license agreement you have obtained for such software. Sections 1 to 32 of these Terms of Service state the general terms applicable to all Services, and Sections 33 to 35 state additional terms that will apply only if you elect to purchase the particular services described in those sections. If the individual who submits or approves an Order does so on behalf of a company or other legal entity, the individual represents that he or she has authority to bind that entity to the Agreement. By electronically or manually placing an Order for WebConnect Services or otherwise electronically or manually approving an Order drafted on your behalf, you thereby agree to be bound by all the terms of the Agreement. The Agreement is the complete and exclusive agreement between you and WebConnect regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
GENERAL TERMS
- Defined Terms
- WebConnect's Obligations
- Your Obligations
- Access to the Services
- No Guarantee WebConnect will remain with Rackspace
- Term
- Fees
- Fee Increases
- Suspension
- Termination for Convenience; Early Termination Fee
- Termination for Breach
- Access to Data
- Unauthorized Access to Your Data or Use of the Services
- Disclaimers
- Export Matters
- Confidential Information
- Limitation on Damages
- Indemnification
- Microsoft Software
- Who May Use the Service
- Changes to the Acceptable Use Policy
- Notices
- No High Risk Use
- Ownership of Intellectual Property
- IP Addresses
- Assignment/Subcontractors
- Force Majeure
- Governing Law, Lawsuits
- Some Agreement Mechanics
- Domain Name Registration Services
- Billing Services
- Mail Services
ADDITIONAL TERMS FOR CERTAIN SERVICES
- Full Service Support For WebConnect Software
- 24x7 Technical Support by Rackspace
- Beta Services
Some words used in the Agreement have particular meanings:
"Acceptable Use Policy" or "AUP" means the WebConnect Acceptable Use Policy attached to your order or posted at www.webconnectgradpro.com/webconnecthosting.php and the Rackspace Cloud Acceptable Use Policy posted at http://www.rackspacecloud.com/legal/aup as of the date you sign the Order, as it may be amended pursuant to Section 21 below.
"Business Day" or "Normal Business Hours" means 8:00 a.m. – 5:00 p.m. Monday through Friday, United States east coast time, excluding federal public holidays in the United States.
"Confidential Information" means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for you, all information transmitted to or from, or stored on, the Rackspace cloud system, (ii) for WebConnect, unpublished prices and other terms of service, audit and security reports, product development plans, product features and capabilities, product security and vulnerabilities, product performance metrics, product data models, product configuration designs, and other proprietary or copyrighted information or technology concerning WebConnect products, and (iii) for both of us, information that is marked or otherwise conspicuously designated as confidential. The following information shall not be "Confidential Information": (i) the information is developed by one of us on our own, without use of or reference to the other's Confidential Information, or (ii) the information becomes available to one of us other than through violation of the Agreement or applicable law, or (iii) the information is disclosed pursuant to judicial, regulatory or statutory mandadate.
"Junk Mail" means email that is captured by our mail filter and other email that is reported by you to Rackspace as undesirable.
"Order" or "Order Form" means either: (i) the online order that you submit to WebConnect via the Rackspace website, or (ii) any other written order (either in electronic or paper form) provided to you by WebConnect for signature that describes the Services you are purchasing, and that is approved by you, either manually or electronically.
"Services" means those services described in the Order.
"Pass-Through Cost" means the fee you are billed is identical to the fee we are being billed, without any markup in price from us. If (i) we are aware in advance of a fee increase for Pass-Through Costs, and (ii) informing you in advance is reasonable, feasible and permitted, then we will inform you in advance that a Pass-Through Cost will increase. If we have already incurred the cost on your behalf, then you must pay all Pass-Through Costs in their entirety even if there was limited notice or no advance notice.
Contingent on WebConnect's acceptance of your Order, and subject to these Terms of Service, WebConnect agrees to provide the Services and comply with applicable law. If you have met your minimum financial commitment for support, WebConnect will provide e-mail support for the WebConnect Application during Normal Business Hours. If you have met your minimum financial commitment for Rackspace support, Rackspace will provide support for the Hosted Site Services twenty four hours per day, seven days per week, year round.
You agree to do each of the following: (i) comply with applicable law, the WebConnect Acceptable Use Policy, and the Rackspace Cloud Acceptable Use Policy (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of your use of the Services, (iv) cooperate with WebConnect's or Rackspace's reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account information up to date; (vi) immediately notify WebConnect and Rackspace of any unauthorized use of your account or any other breach of security; and (vii) only install onto the Services (or continue to use) software for which you have a current, valid license. In the event of a dispute between us regarding the interpretation of the AUP, WebConnect's reasonable determination shall control.
You may access the Hosted Services via the online control panel, or via a Rackspace-provided Application Programming Interface or API. Rackspace may modify its control panel or APIs at any time, or may transition to new API's. Your use of any API you download from the Rackspace website is governed by the license terms included with the code in the file named "COPYING" or "LICENSE" or like caption.
WebConnect chooses to use the Rackspace Cloud as a Supplier for WebConnect's own business purposes and WebConnect makes no guarantee or representation that WebConnect will continue to use Rackspace for any duration. This Agreement is for WebConnect to provide you with a hosted site and solution compatible with the WebConnect Server Software. At WebConnect's sole descretion, WebConnect may transition those services provided to you onto and into a WebConnect-owned server or facility, or to a different Supplier. In the event WebConnect chooses to stop using Rackspace and switch to an alternative Supplier, you may terminate this Agreement for convenience without incurring any early termination fee provided that you adhere to all your other obligations under this Agreement.
6.1 If you have not elected to pre-pay for annual service on your Order, then:
- The initial term begins on the date we make the Services available for your use and continues for the period stated in the Order.
- If no period is stated in the Order, then the initial term shall be one month.
- Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of the same duration as the initial term, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable.
6.2 If your Order is to pre-pay for annual service and your service starts before the last quarter of the calendar year, then:
- The period for your initial term shall begin on the date we make the Services available for your use and continues until the end of same calendar year.
- Upon expiration of the initial term, the Order will automatically renew for successive renewal terms, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable.
- Your successive renewal terms shall be yearly starting and ending on the calendar year.
6.3 If your Order is to pre-pay for annual service and your service starts within the last quarter of the calendar year, then:
- The period for your initial term shall begin on the date we make the Services available for your use, continues through the remainder of the same calendar year, and then continues until the end of following calendar year.
- Upon expiration of the initial term, the Order will automatically renew for successive renewal terms, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable.
- Your successive renewal terms shall be yearly starting and ending on the calendar year.
6.4 You must directly notify WebConnect using written or email communication to give an effective notice of non-renewal. Use of the Rackspace control panel's non-renewal feature does not constitute notification to WebConnect.
7.1 WebConnect will charge you the fees stated in your Order. Some fees in your Order will be billed through the Rackspace service and shall be paid through the Rackspace service unless (i) a written exemption is granted by WebConnect, or (ii) WebConnect has agreed that you will pre-pay for annual service. All services and fees not billed and paid through the Rackspace service shall be invoiced by electronic mail to the billing contact stated in your Order.
7.2 If you have made a minimum commitment as part of your Order, and your actual usage does not meet or exceed the minimum commitment, you will be billed for your minimum commitment.
7.3 If you are being billed through the Rackspace service then unless you have made other arrangements with WebConnect, Rackspace will charge your credit card without invoice as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees (such as fees for initial set-up, overages, compute cycle fees, and domain name registration) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Rackspace's option; provided that Rackspace may wait to charge your credit card until the total aggregate fees due are at least $50. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that Rackspace first makes the Services available to you.
7.4 For services and fees not billed and paid through the Rackspace service, we will invoice as follows: (i) for recurring fees, approximately 30 to 45 days in advance, and (ii) for non-recurring fees (such as fees for initial set-up, overages, compute cycle fees, and domain name registration) on or around the date incurred, on or around the date WebConnect was invoiced for an applicable fee by Rackspace, or on or around the first day of the month that follows the date incurred, at WebConnect's option; provided that we may wait to invoice you until the total aggregate fees due are at least $50. Unless your Order is to pre-pay for annual service, your billing cycle for recurring fees will be as indicated in your Order, or monthly if no period is stated in the Order. If you have elected and we have agreed to allow you to pre-pay for annual service, then you will be invoiced immediately for your initial term and then in November for the following calendar year's service.
7.5 If you have elected and we have agreed to allow you to pre-pay for annual service, and your initial service date begins in the last quarter of the year, then we may require you to pre-pay the fees for both the remainder of the current year as well as the following calendar year.
7.6 Regardless if you have pre-paid for services in advance, you are still liable for all applicable additional fees and charges including, but not necessarily limited to: set-up, upgrade, customizations, domain registration and renewal, Microsoft MS-SQL databases, SSL Security, SSL certificates, Microsoft Frontpage compatibility, as well as usage fees for being above any limits stated in your Order including overages of bandwidth, storage, compute cycles, and email accounts.
7.7 Either Rackspace or WebConnect may suspend all services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if (i) a payment for the Services is overdue, or (ii) our charges to your credit card are rejected for any reason.
7.8 WebConnect may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and WebConnect brings a legal action to collect, or engages a collection agency, you must also pay WebConnect's reasonable costs of collection, including attorney fees and court costs. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate.
7.9 All fees are stated and will be charged in US Dollars.
7.10 You must provide WebConnect with accurate factual information to help WebConnect determine if any tax is due with respect to the provision of the Services, and if WebConnect is required by law to collect taxes on the provision of the Services, you must pay WebConnect the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax.
7.11 You authorize WebConnect to obtain a copy of your credit report at any time during the term of the Agreement.
7.12 Any credit that we may owe you will be applied to unpaid fees for services or refunded to you, at our option.
If you are under a month-to-month contract, then we may increase fees at any time on forty-five (45) days advance written notice. If the initial term of your Agreement is longer than one month, then we may increase your fees effective as of the first day of the renewal term that first begins forty-five days from the day of our written notice of a fee increase. In addition, if during the initial term or any renewal term there is an increase in the Producer Price Index over the Producer Price Index reported for the month in which you signed your Order, we may increase your fees by the same percentage as the increase in the Producer Price Index; provided that we may not increase your fees pursuant to this sentence more often than once per twelve months, and we must give you at least thirty days advance written notice of the increase. The "Producer Price Index" means the Producer Price Index for Finished Goods, WPUSOP3000, not seasonally adjusted, and first published as "preliminary" data by the United States Bureau of Labor Statistics in its PPI Detailed Report or successor publication. For historical information on the Producer Price Index, you may visit the Bureau of Labor Statistics website. (Example: if the Producer Price Index for the month in which you sign the Order is 186, and then increases in a subsequent month during the term of the Order to 195, we may increase your fees by up to 4.8%).
We may suspend your Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that your Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension is based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect WebConnect, Rackspace or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the Services.
Either party may terminate the Agreement for convenience at any time on thirty (30) days advance written notice. If WebConnect terminates the Agreement and you have paid for Services beyond the date of termination, then WebConnect shall refund to you the pro-rated share of your fees as of the date of termination except that WebConnect may deduct from any such pro-rated refund any amount corresponding to fees owed to WebConnect and for which you are in arrears, regardless if such arrears fees are part of a separate Agreement or purchase. If your term is monthly and you terminate the Agreement for convenience, in addition to other amounts you may owe, you must pay an early termination fee equal to any minimum monthly financial commitment you have made for the remaining portion of the then-current term. If your term duration is greater than one month and you terminate the Agreement for convenience, in addition to other amounts you may owe, you must pay an early termination fee equal to the lessor of (i) two months pro-rated amount of your minimum financial commitment for the then-current term, or (ii) the remaining portion of your minimum financial commitment for the then-current term.
We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of WebConnect and Rackspace in an orderly fashion, (v) you use your Service in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate the AUP more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within ten (10) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure. If you terminate for breach and the breach is not in dispute between both parties, we will refund to you an amount, if any, equivalent to the fees you have pre-paid in advance pro-rated from the date of termination through the remainder of the then-current term, except that we may deduct from that amount any applicable fees, charges, or penalties for which you are liable and have not yet paid.
12.1 You will not have access to your data, files, software, or any other information stored on the system during a suspension or following termination.
12.2 Rackspace creates a backup of the Rackspace Cloud systems on a periodic basis so that Rackspace is able to more quickly restore the systems in the event of a failure. Rackspace backups are made on a snap-shot basis and, therefore, capture only the information that exists on the system at the time of the backup. In addition, Rackspace may destroy all but the most recent backup. Rackspace backups may not be available to you or, if available, may not be useful to you outside of the Rackspace Cloud systems. You agree not to rely upon the Rackspace backup process for the continuity of your business operations and will make suitable arrangements and copies to protect yourself against unplanned losses. If your Order provides for backups periodically conducted by WebConnect, such backups shall only include WebConnect Server Software and databases configured to operate with the WebConnect Server Software. No other web applications or databases will be backed up by WebConnect.
12.3 You agree that you will maintain at least one additional current copy of your programs and data stored with WebConnect on the Rackspace Cloud system somewhere other than with WebConnect on the Rackspace Cloud system.
12.4 Among other things, the AUP expressly prohibits you from transferring onto your hosted Service any unmasked social security numbers as well as any credit card information, regardless of the format of the data and regardless of whether it is encrypted. YOU ARE SOLELY RESPONSIBLE FOR ADHERING TO THE AUP.
12.5 In order to perform, inspect, test, and troubleshoot maintenance requests, or as reasonably necessary to enforce the AUP, WebConnect staff and authorized agents may access all of your information and web site pages as reasonably necessary to complete the required tasking or investigation. Except for data published and accessible to the general public via website pages or other standard interfaces, all such data shall otherwise be treated as Confidential Information in accordance with this Agreement.
WebConnect is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results directly from WebConnect's failure to meet explicit security obligations stated in the Agreement. WebConnect is not responsible for unauthorized access attributable to Rackspace. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. WebConnect has no obligation to provide security other than as stated in this Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen. If you have not made the minimum financial commitment for support, the Services are provided AS IS. Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS.
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom WebConnect is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.
Each of us agrees not to use the other's Confidential Information 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. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
- to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these General Terms and Conditions.
- to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other's conduct may violate applicable criminal law as required by law; or
- in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of this Agreement, or results from our gross negligence or willful misconduct. If you are not arrears in the payment of any fees or dues, the dollar credits paid in return for the Services are your sole and exclusive remedy for unavailability of the Services.
You agree that WebConnect (including any of our employees, agents, affiliates or suppliers) is not liable to you for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the use of reasonable diligence, even if WebConnect may have been advised or should be aware of the possibility of such damages. In no event shall WebConnect be liable to you for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from WebConnect's negligence, the maximum aggregate monetary liability of WebConnect and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of (i) the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Five Hundred Dollars ($500.00).
If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the "WebConnect Indemnitees") are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, or violation of Section 15 (Export Matters) of these Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the WebConnect Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
In addition to the terms of our Agreement, your use of any Microsoft® software is governed by Microsoft's license terms that appear at http://www.rackspace.com/information/legal/microsoftlicense.php.
You cannot resell the Services. Unless otherwise agreed, WebConnect will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under this Agreement.
Either WebConnect or Rackspace may change their respective Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order for your account that incorporates the revised AUP or General Terms, or (iii) thirty (30) days following a notice or posting of a change. If the change materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective for your account, and we will not enforce the change with respect to that account for thirty (30) days following the date of your notice. If you terminate your Service because the change materially and adversely affects you, WebConnect may at WebConnect's sole descretion decide not to enforce that change to the AUP with respect to your account and keep your Agreement in place for the remainder of the term.
Your routine communications regarding the Services should be sent to WebConnect via email. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first-class United States mail to:
legalnotice@merrillconsultinggroup.us
General Counsel
Merrill Consulting Group, LLC
P.O. Box 70040
Fort Lauderdale, Florida 33307
WebConnect's routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier, except that WebConnect may give notice of an amendment to the AUP by email and Rackspace may give notice of an amendment to their AUP by posting the notice on the Rackspace Cloud control panel. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined below, as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you log on to your Rackspace Cloud control panel after the time that the notice is posted. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. All Notices must be given in the English language. Either party may change their address of record for Notices using a written Notice to the other and it shall be effective upon acknowledgement by the other party or upon proof of receipt of such Notice.
You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by WebConnect during the performance of the Services shall belong to WebConnect unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property. If WebConnect provides you a copy of our intellectual property such transfer of a copy shall not be construed as a transfer of any right, title, or interest in the intellectual property unless we have agreed with you in advance that you shall have an interest in the intellectual property. Your transfer to, and storage of, your own intellectual property on the WebConnect Hosted Service shall not be construed as a transfer of any right, title, or interest to WebConnect; for any intellectual property that you have right, title, and interest and that you then transfer to the WebConnect Hosted Service as part of the Services, you shall retain such right, title, and interest unless you have agreed with us in advance in writing that we shall have an interest in your intellectual property. Except as required for purposes of performing our respective obligations under this Agreement, neither of us shall use the other's name, logo, likeness, trademarks, image, or other intellectual property for any advertising, marketing, endorsement, or any other purposes without the prior written consent of the other party, except that WebConnect may list your name on our existing client list which may be provided to any of our prospective clients and business partners.
Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by WebConnect or Rackspace in connection with Services, including pointing the DNS for your domain name(s) away from Rackspace.
You may not assign the Agreement without WebConnect's prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. WebConnect may use third party service providers to perform all or any part of the Services, but WebConnect remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if WebConnect performed the Services itself.
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement is governed by the laws of the State of Florida, exclusive of any Florida choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Broward County, Florida, and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against WebConnect or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
These Terms of Service may have been incorporated in your Order by reference to page on the WebConnect website. Although we may from time to time revise the Terms of Service posted on that page, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision, and your Order will continue to be governed by the Terms of Service posted on the effective date of the Order. However, any amended Terms of Service will become effective on the first day of the renewal period that follows the date that the new Terms of Service were posted by at least thirty days. In addition, if over time you sign multiple Orders for a single account, then the Terms of Service incorporated in the latest Order posted on the effective date of the latest Order will govern the entire account. WebConnect may accept or reject any Order you submit using WebConnect's sole discretion. WebConnect's provisioning of the Services described in an Order shall be WebConnect's acceptance of the Order.
An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Terms of Service, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word "including" in the Agreement shall be read to mean "including without limitation." Sections 1, 7, 10, 16, 17, 18, 22, 24, 28, 29, 33 and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The titles and headings of the various portions of this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon any of the provisions of this Agreement.
The Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
When you place your initial Order and WebConnect provisions your Order, then WebConnect will register, renew, or transfer a domain name through Rackspace, Rackspace will submit the request to its domain name services provider (the "Registrar") on your behalf. WebConnect and Rackspace's sole responsibility is to submit the request to the Registrar. Rackspace and WebConnect is not responsible for any errors, omissions, or failures of the Registrar. Your use of domain name services is subject to the applicable legal terms of the Registrar posted at http://www.rackspacecloud.com/legal. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name, and you are responsible for responding to any inquiries sent to you by the Registrar.
WebConnect uses the Rackspace reseller billing services. You authorize Rackspace, doing business as "Web Hosting Billing Systems," to charge the your credit card for the designated charges payable by you through the Rackspace service. You represent and warrant to WebConnect and Rackspace that the end user credit card authorization is complete and valid, and that all charges, including taxes, are accurate, bona fide, and in accordance with the law and this Agreement. Rackspace will attempt to charge your credit card one time according to the collections process outlined in the Rackspace Control Panel. If the charges are disallowed, canceled, charged back, or are otherwise uncollectible, you are still responsible for payment and must immediately make arrangement with WebConnect to prevent your account from going into arrears. Rackspace will suspend your account for non-payment based on WebConnect's instructions. WebConnect may, at its option, deduct from your monthly remittance, charge your credit card, or otherwise invoice you for any charge backs or processing fees incurred as a result of your credit card processing. You are responsible for reporting and remitting all taxes to the appropriate taxing authorities.
32.1 Access. You may access your Mail Services over the web via the Rackspace control panel, or via a Rackspace-provided API. Rackspace may modify its control panel or APIs at any time, or may transition to new APIs.
32.2 Management of the Service. Rackspace and WebConnect will provision your initial mail environment, but you are otherwise responsible for managing your mail service, including adding mailboxes, adding wireless or other service components, adding storage capacity, managing settings, and configuring spam filters.
32.3 Filtering. Rackspace will provide email filtering services designed to filter spam, phishing scams, and email infected with viruses. Rackspace recommends that you employ additional security measures, such as a desktop virus scanner and firewall, on computers that are connected to the Internet. Rackspace will use commercially reasonable efforts to deliver your email messages. Third party filtering services may from time to time prevent successful delivery of your messages. You acknowledge that the technological limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. You hereby release both WebConnect and Rackspace and their employees, agents, affiliates, and third party suppliers from any liability for damages arising from the failure of Rackspace's filtering services to capture unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient's email service provider.
32.4 Memory Limitations. Mail that exceeds the storage limit when received may be permanently lost. You may adjust the storage capacity of your individual mailboxes via the control panel, and it is your obligation to monitor and adjust the storage capacity of individual mailboxes as needed. An individual email message that exceeds the per-message size limit may also be permanently lost. As of November 2008, the per-message size limit is 50MB.
32.5 Content Privacy. Your email messages and other items sent or received via the mail service will include: (i) the content of the communication ("content"), and (ii) certain information that is created by the systems and networks that are used to create and transmit the message (the "message routing data"). The content includes things like the text of email messages and attached media files, and is generally the information that could be communicated using some media other than email (like a letter, telephone call, CD, DVD, etc.) The message routing data includes information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information, and is generally information that would not exist but for the fact that the communication was made via email. The content of your items is your Confidential Information and is subject to the restrictions on use and disclosure described in these Terms of Service. However, you agree that Rackspace may view and use the message routing data for Rackspace's general business purposes, including maintaining and improving security, improving Rackspace services, and developing products. In addition, you agree that Rackspace may disclose message routing data to third parties in aggregate statistical form, provided that Rackspace does not include any information that could be used to identify you.
32.6 Usage Data. Rackspace can collect and store information related to your use of the Services, such as use of SMTP, POP3, IMAP, and filtering choices and usage. You agree that we may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
If provided for in your Order and your account is not in arrears, WebConnect will provide routine site maintenance and tier 3 support for your hosted WebConnect Server Software. We will install, configure the WebConnect Server Software and provide guidance and support for the proper data transfer to the WebConnect Server Software. As needed, we will debug and apply software patches as appropriate. We will apply text changes, configuration changes, and otherwise routine operational maintenance of the site when directed by you. When directed by you, we will apply any upgraded versions of the WebConnect Server Software. In addition to any recurring fees specified in your Order, installation and upgrade fees may also apply as indicated in your Order. Customizations such as new reports and features, revised layouts, and custom website branded theme are expressly excluded from this full service support and must be contracted or Ordered independent of this full service offering.
If provided for in your Order and your account is not in arrears, Rackspace will provide tier 3 support for problems with your hosted service, including problems with your domain registry, database connectivity, and non-WebConnect web applications you may be running from your account. Rackspace will not be able to resolve issues with the WebConnect Server Software itself.
If you elect to participate in any beta test of a WebConnect Service (a "Beta Service"), then your use of the Beta Service is subject to the following terms:
- You acknowledge that the Beta Service is a pre-release version and may not work properly.
- You acknowledge that your use of the Beta Service may expose you to unusual risks of operational failures.
- You should not use the pre-release version of the Beta Service in a live production environment. You must not use the Beta Service in any hazardous environments, life support, or weapons systems.
- We may terminate the Beta Service at any time, in our sole discretion.
- The commercially released version of the Beta Service may change substantially from the pre-release version, and programs that use or run with the pre-release version may not work with the commercial release or subsequent releases.
- During the beta test we will provide support for your use of the service only during our Normal Business Hours.
- You agree to provide prompt feedback regarding your experience with the Beta Service in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you experience. You agree that we may use your feedback for any purpose, including product development purposes. At our request you will provide us with comments that we may use publicly for press materials and marketing collateral. Any intellectual property inherent in your feedback or arising from your testing of the service shall be owned exclusively by WebConnect.
- You agree that all information regarding your beta test, including your experience with and opinions regarding the Beta Service, is "Confidential Information" of WebConnect, as defined in these Terms of Service, and may not be disclosed to a third party or used for any purpose other than providing feedback to WebConnect.
- The Beta Service is provided "AS IS" with no warranty whatsoever.
- To the extent permitted by applicable law, Rackspace disclaims any and all warranties with respect to the Beta Service including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
- The maximum aggregate liability of WebConnect and any of its employees, agents, affiliates, or suppliers, under any theory of law (including breach of contract, tort, strict liability, and infringement) for harm to you arising from your use of the Beta Service shall be a payment of money not to exceed Five Hundred Dollars ($500.00).