inSolSys.com
SERVICES
AGREEMENT
Welcome
to inSolSys.com, Inc.! InSolSys.com,
Inc. ("InSolSys.com") is the leading comprehensive hosting solutions
provider to middle market companies. This
Services Agreement ("Agreement") governs your purchase and use, in any
manner, of all Web site hosting services as described in the Order Form (the
“Services”), ordered by you and accepted by InSolSys.com and describes the
terms and conditions that apply to such purchase and use of the Services.
If you have registered for Co-Location Services, then the term
“Services” also includes Co-Location Services so that this Agreement will
govern your purchase and use of all Services, including Co-Location Services,
and your purchase and use of the Co-Location Services shall also be governed by
the terms and conditions set forth in Addendum A to this Agreement.
Addendum A is inapplicable if you did not register for Co-Location
Services.
You must register
and accept the terms of this Agreement in order to use the Services.
BY CLICKING ON THE "I ACCEPT" BUTTON, AND REGISTERING FOR AND
USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE
TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL
ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE.
InSolSys.com reserves the right to change or modify any of the terms and
conditions contained in this Agreement, the Addendum and any policy or guideline
incorporated by reference at any time and from time to time in its sole
discretion, and to determine whether and when any such changes apply to both
existing or future customers. Any
changes or modification will be effective upon posting of the revisions on the InSolSys.com Web site (the "Site").
InSolSys.com will post a notice of such changes or modifications to this
Agreement or the Addendum on the Site for thirty (30) days.
InSolSys.com may post changes or modifications to referenced Acceptable
Use Policies without notice to you. Your
continued use of Services following inSolSys.com's posting of any changes or
modifications will constitute your acceptance of such changes or modifications.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT (OR THE ADDENDUM IF
THEY APPLY TO YOU), DO NOT CLICK THE "I ACCEPT" BUTTON. IF YOU DO NOT
AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND
IMMEDIATELY NOTIFY INSOLSYS.COM OF YOUR TERMINATION OF THIS AGREEMENT.
1.
Term and Payment for Services
1.1. Term.
This Agreement shall be for an "Initial Term" as chosen by you
in the Order Form located on this Site at the time you register for the
Services. This Agreement will be
automatically renewed (the "Renewal Term") at the end of the Initial
Term for the same period as the Initial Term unless you provide InSolSys.com with
notice of termination thirty (30) days prior to the end of the Initial Term or
the Renewal Term. You must provide InSolSys.com with your notice of termination by clicking on the "Cancel
Service" button located on the Site or as otherwise provided by this
Agreement. Upon clicking on the
"Cancel Service" button, you will be asked to provide InSolSys.com with
sufficient customer identification information so that InSolSys.com may properly
identify you and your account. Any
notice of termination will be effective following thirty (30) days after InSolSys.com's receipt thereof.
1.2.
Termination Policy. If you
terminate your receipt of the Services prior to the end of the Initial Term or
the Renewal Term, whichever is then applicable, (a) InSolSys.com will not refund
to you any fees paid in advance of such termination and (b) you shall be
required to pay 100% of InSolSys.com's standard monthly charge for each month
remaining in the term, unless otherwise expressly provided in this Agreement.
Notwithstanding the foregoing, if you terminate your receipt of Shared
Hosting Services prior to the end of the first thirty (30) days of the Initial
Term, you are entitled to a refund of the fees you paid in advance for the
monthly Services, not including any set-up fees.
Your termination request or notice must be submitted to InSolSys.com
in the manner described in Section 1.1. InSolSys.com
may terminate this Agreement at any time and for any reason by providing to you
written notice thirty (30) days prior to the date of termination.
If InSolSys.com terminates this Agreement, InSolSys.com will refund to you
the pro‑rata portion of pre‑paid fees attributable to Services
(excluding set-up fees) not yet rendered as of the termination date unless
otherwise expressly provided in this Agreement.
1.3
Default and Cure. In
the event that either party hereto defaults in the performance of any of its
material duties or obligations under this Agreement, including failure to make
any payments due under this Agreement, and such default is not cured within
fifteen (15) days after written notice is given to the defaulting party
specifying the default, then the party not in default, after given written
notice thereof to the defaulting party, may terminate this Agreement.
1.4.
Charges. You agree to
pay for all charges attributable to your use of the Services at the then current
InSolSys.com prices, which shall be exclusive of any applicable taxes. You are
responsible for the payment of all federal, state, and local sales, use, value
added, excise, duty and any other taxes assessed with respect to the Services,
other than taxes based on InSolSys.com's net income.
1.5.
Payment.
All charges for Services must be paid in advance according to the then
current prices applicable to the Services.
Upon entering this Agreement, you must choose to pay either by direct
charge to a credit or debit card, or receive an invoice and submit subsequent
payment. If you choose to pay by
credit or debit card upon registering for the Services, you thereby authorize InSolSys.com to charge your credit or debit card to pay for any charges that may
apply to your account. You agree
that InSolSys.com may accumulate any supplemental charges, incurred by you in
your use of the Services ("Supplemental Charges") until such charges
exceed $20 and then charge your account. You
must notify InSolSys.com of any changes to your card account (including, without
limitation, applicable account number or cancellation or expiration of the
account), your billing address, or any information that may prohibit InSolSys.com
from charging your account. If you
choose to be invoiced upon registration for Services, InSolSys.com will send an
invoice to you for the Services applicable to the period for which you have
registered for the Services. InSolSys.com
may also send periodic invoices to you for any applicable Supplemental Charges
associated with your use of the Services. You
agree to pay to InSolSys.com the amount indicated in each invoice by the due date
reflected on the invoice. If you
fail to pay any fees and taxes within ten (10) days from applicable due date for
credit card or invoice payments, late charges of the lesser of one and
one‑half per cent (1.5%) per month or the maximum allowable under
applicable law shall also become payable by you to InSolSys.com.
In addition, your failure to fully pay any fees and taxes within fifteen
(15) days after the applicable due date will be deemed a material breach of this
Agreement, justifying InSolSys.com's suspension of its performance of the
Services and/or termination of this Agreement. You are responsible for any fees
associated with reinstatement of Services.
Any such suspension or termination would not relieve you from paying past
due fees plus interest. In the
event of collection enforcement, you will be liable for any costs associated
with such collection, including, without limitation, reasonable attorneys' fees,
court costs and collection agency fees.
2.
Use of Services
2.1.
Applicable Use Policy. The InSolSys.com Acceptable Use Policy (the "Usage Policy") govern the
general policies and procedures for use of the Services.
The Usage Policy is posted on InSolSys.com's Web site (or such other
location as InSolSys.com may specify) and may be updated from
time‑to‑time. YOU
SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE
BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. INSOLSYS.COM
RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE
POLICY OR THIS AGREEMENT.
2.2.
Material and Product Requirements. Unless
we have agreed otherwise in a separate agreement, you must ensure that all
material and data placed on InSolSys.com's equipment is in a condition that is
"server‑ready," which is in a form requiring no additional
manipulation by InSolSys.com. InSolSys.com
will make no effort to validate any of this information for content, correctness
or usability. If your material is not "server-ready", InSolSys.com has
the option at any time to reject this material.
InSolSys.com will notify you of its refusal of the material and afford you
the opportunity to amend or modify the material to satisfy the needs and/or
requirements of InSolSys.com. Use of
the Services requires a certain level of knowledge in the use of Internet
languages, protocols and software. This
level of knowledge varies depending on the anticipated use and desired content
of your Web site. You must have the
necessary knowledge to create and maintain a Web site.
It is not InSolSys.com's responsibility to provide this knowledge or
customer support outside of the Services agreed to by you and InSolSys.com.
2.3.
Bandwidth and Storage Usage. You
agree that use of the Services under this Agreement will not exceed the
bandwidth and storage usage limits set out.
If you use any bandwidth or storage space in excess of the agreed upon
number of megabytes per month, you agree to pay the associated additional
charges. This provision is not
applicable to InSolSys.com's Co-Location Services.
3.
Enforcement
3.1.
Investigation of Violations. InSolSys.com
may investigate any reported or suspected violation of this Agreement, its
policies or any complaints and take any action that it deems appropriate and
reasonable under the circumstance to protect its systems, facilities, customers
and/or third parties. InSolSys.com
will not access or review the contents of any e-mail or similar stored
electronic communications except as required or permitted by applicable law or
legal process.
3.2.
Actions. InSolSys.com
reserves the right and has absolute discretion to restrict or remove from its
servers any content that violates this Agreement or related policies or
guidelines, or is otherwise objectionable or potentially infringing on any third
party's rights or potentially in violation of any laws.
If we become aware of any possible violation by you of this Agreement,
any related policies or guidelines, third party rights or laws, InSolSys.com may
immediately take corrective action, including, but not limited to, (a) issuing
warnings, (b) suspending or terminating the Service, (c) restricting or
prohibiting any and all uses of content hosted on InSolSys.com's systems, and/or
(d) disabling or removing any hypertext links to third‑party Web sites,
any of your content distributed or made available for distribution via the
Services, or other content not supplied by InSolSys.com which, in InSolSys.com's
sole discretion, may violate or infringe any law or third‑party rights or
which otherwise exposes or potentially exposes InSolSys.com to civil or criminal
liability or public ridicule. It is
InSolSys.com's policy to terminate repeat infringers.
InSolSys.com's right to take corrective action, however, does not
obligate us to monitor or exert editorial control over the information made
available for distribution via the Services.
If InSolSys.com takes corrective action due to such possible violation, InSolSys.com shall not be obligated to refund to you any fees paid in advance of
such corrective action.
3.3.
Disclosure Rights. To comply with applicable laws and lawful
governmental requests, to protect InSolSys.com's systems and customers, or to
ensure the integrity and operation of InSolSys.com's business and systems, InSolSys.com may access and disclose any information it considers necessary or
appropriate, including, without limitation, user profile information (i.e.,
name, e‑mail address, etc.), IP addressing and
traffic information, usage
history, and content residing on InSolSys.com's servers and systems.
InSolSys.com also reserves the right to report any activity that it
suspects violates any law or regulation to appropriate law enforcement
officials, regulators, or other appropriate third parties.
4.
Intellectual Property Rights
4.1.
Your License Grant to InSolSys.com.
You hereby grant to InSolSys.com a non-exclusive, worldwide, and
royalty-free license for the Initial Term and any Renewal Term to use your
content as necessary for the purposes of rendering and operating the Services to
you under this Agreement. You
expressly (a) grant to InSolSys.com a license to cache materials distributed or
made available for distribution via the Services, including content supplied by
third parties, and (b) agree that such caching is not an infringement of any of
your intellectual property rights or any third party's intellectual property
rights.
4.2.
InSolSys.com Materials and Intellectual Property.
All materials, including but not limited to any computer software (in
object code and source code form), data or information developed or provided by InSolSys.com or its suppliers or agents pursuant to this Agreement, and any
know‑how, methodologies, equipment, or processes used by InSolSys.com to
provide the Services to you, including, without limitation, all copyrights,
trademarks, patents, trade secrets and other proprietary rights are and will
remain the sole and exclusive property of InSolSys.com or its suppliers,
including but not limited to any software programs, inventions, products and/or
technology innovations and methodologies utilized, developed, or disclosed by InSolSys.com during the term of this Agreement.
Unauthorized copying, reverse engineering, decompiling, and creating
derivative works based on the any such software is expressly forbidden except as
permitted in this Agreement. You
may be held legally responsible for violation of any patent rights, copyright or
trade secret rights that is caused or encouraged by failure to abide by the
terms of this Agreement.
4.3.
Trademarks. You
hereby grant to InSolSys.com a limited right to use your trademarks, if any, for
the limited purpose of permitting InSolSys.com to fulfill its duties under this
Agreement. This is not a trademark
license and no other rights relating to the trademarks are granted by this
Agreement. Specifically, but
without limitation, the rights granted by this Agreement do not include the
right to sublicense use of your trademarks or to use your trademarks with any
other products or services outside the scope of the Services provided under this
Agreement. The limited trademark
use rights granted under this section terminate upon termination of this
Agreement.
5.
Warranty; Warranty Disclaimer.
5.1.
Customer and/or Third Party Acts. InSolSys.com is not responsible
in any manner for any nonconforming Services to the extent caused by you or your
customers. In addition, InSolSys.com
is not responsible for loss or corruption of data in transmission, or for
failure to send or receive data due to events beyond InSolSys.com's reasonable
control.
5.2.
No Express or Implied Warranty.
ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY INSOLSYS.COM UNDER THIS
AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN
LAW, WHATSOEVER. YOU ACKNOWLEDGE
AND AGREE THAT INSOLSYS.COM EXERCISES NO CONTROL OVER, AND ACCEPTS NO
RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH INSOLSYS.COM'S
COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. INSOLSYS.COM
DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR
ERROR-FREE. ALL SERVICES PERFORMED
UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY
AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO
COMPUTER HARDWARE OR COMMUNICATION SYSTEMS.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, INSOLSYS.COM DOES NOT MAKE
AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS
OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING,
WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO
PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK INFRINGEMENT.
5.3
Your Warranties and Representations to InSolSys.com.
You warrant, represent, and covenant to InSolSys.com that (a) you are at
least eighteen (18) years of age or are a duly organized and validly existing
entity; (b) you possess the legal right and ability to enter into this
Agreement; (c) you will use the Services only for lawful purposes and in
accordance with this Agreement and all applicable policies and guidelines; (d)
you will be financially responsible for the use of your account; (e) you have
acquired or will acquire all authorization(s) necessary for hypertext links to
third‑party Web sites or other content; (f) you have verified or will
verify the accuracy of materials distributed or made available for distribution
via the Services, including, without limitation, your content, descriptive
claims, warranties, guarantees, nature of business, and address where business
is conducted, and (g) your content does not and will not infringe or violate any
right of any third party (including any intellectual property rights) or violate
any applicable law, regulation or ordinance.
6.
Limitation and Exclusion of Liability
6.1.
Limitations. IN NO
EVENT SHALL INSOLSYS.COM HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR
ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE
FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES.
INSOLSYS.COM SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF INSOLSYS.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ANY EVENT, THE LIABILITY OF INSOLSYS.COM TO YOU FOR ANY REASON AND UPON
ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO INSOLSYS.COM
BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING
THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS
LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT
LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT
LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY
INSOLSYS.COM UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON
THIS ALLOCATION OF RISK. ACCORDINGLY,
YOU HEREBY RELEASE INSOLSYS.COM FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND
CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME
STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL
OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT
PERMITTED BY LAW.
6.2.
Interruption of Service. You
hereby acknowledge and agree that InSolSys.com will not be liable for any
temporary delay, outages or interruptions of the Services.
Further, InSolSys.com shall not be liable for any delay or failure to
perform its obligations under this Agreement, where such delay or failure
results from any act of God or other cause beyond its reasonable control
(including, without limitation, any mechanical, electronic, communications or
third‑party supplier failure).
7.
Indemnification. You
will defend, indemnify and hold harmless InSolSys.com and its officers,
directors, shareholders, employees, consultants, agents, affiliates and
suppliers (an “Indemnitee”) from any and all threatened or actual claims,
demands, causes of action, suits, proceedings (formal or informal), losses,
damages, fines, penalties, liabilities, costs and expenses of any nature,
including attorneys' fees and court costs, sustained or incurred by or asserted
against any Indemnitee by any person, firm, corporation, governmental authority,
partnership or other entity by reason of or arising out of or relating to: (i)
your violation or breach of any term, condition, representation or warranty of
this Agreement or any applicable
policy or guideline; (ii) your conduct, including but not limited to your
negligence, gross negligence, or willful misconduct; (iii) your improper or
illegal use of the Services; (iv) any claim by a former employee of yours whose
employment has been or may be terminated in connection with or as a result of
the execution of this Agreement and performance of the Services by InSolSys.com;
or (iii) any claim relating to your services or products, including but not
limited to advertising, product liability claims or infringement of any
trademark, copyright, patent, trade secrets or non‑proprietary right of a
third party (including, without limitation, defamation, libel, or violation of
privacy or publicity).
8.
Miscellaneous
8.1
Confidentiality.
The parties each agree that all Confidential Information (as defined
below) communicated to it by the other is done so in confidence and will be used
only for the purposes of this Agreement and will not be used to compete with the
other party or disclosed to any third party without the prior written consent of
the other party except as permitted under this Agreement.
“Confidential Information” means all information in any form,
including, without limitation, printed or verbal communications and information
stored in printed, optical or electromagnetic format, which relates to the
Services; or computer, data processing or electronic commerce programs and
software; electronic data processing applications, routines, subroutines,
techniques or systems; information which incorporates or is based upon
proprietary information of either party; or information concerning business or
financial affairs, product pricing, financial conditions or strategies,
marketing, technical systems of either party; or any information concerning
customers or vendors of either party; or any data exchange between a party and
any customers or vendors. Exceptions
to Confidential Information include (1) information in the public domain; (2) information
developed independently by a party without reference to information disclosed
under this Agreement; or (3) information received from a third party without
restriction and/or breach of this or a similar Agreement.
It is not a violation of this provision to disclose Confidential
Information in compliance with any legal, accounting or regulatory requirement
beyond the control of either Party or, but in such case, prior to disclosure,
the disclosing Party shall give written notice to the other Party to permit that
Party an opportunity to challenge such disclosure.
If either Party is subpoenaed, such Party shall give written notice to
the other Party to permit that Party an opportunity to challenge the disclosure
of Confidential Information. Upon
the termination of this Agreement and upon written request of the disclosing
Party, each Party shall promptly return all Confidential Information of the
other Party. This provision shall
survive the termination of this Agreement for two (2) years.
8.2.
Notices. All notices,
reports, requests, or other communications given pursuant to this Agreement
shall be made in writing, shall be delivered by hand delivery, overnight courier
service, fax, or electronic mail, shall be deemed to have been duly given when
delivered.
8.3.
Choice of Law and Forum. THIS
AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF
TEXAS, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS.
ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR
STATE COURTS LOCATED IN TEXAS, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION
OF SUCH COURTS.
8.4.
Entire Agreement. This
Agreement and all policies and guidelines incorporated in this Agreement by
reference constitutes the entire Agreement of the parties and may not be
modified or altered orally but only by an agreement in writing signed by both
parties.
8.5.
No Fiduciary Relationship; No Third‑Party Beneficiaries.
InSolSys.com is not the agent, fiduciary, trustee or other representative
of you. Nothing expressed or
mentioned in or implied from this Agreement is intended or shall be construed to
give to any person other than the parties hereto any legal or equitable right,
remedy or claim under or in respect to this Agreement.
This Agreement and all of the representations, warranties, covenants,
conditions and provisions hereof are intended to be and are for the sole and
exclusive benefit of the parties hereto.
8.6.
Assignments. You may
not transfer or assign your rights, duties, or obligations under this Agreement
without InSolSys.com's prior written consent.
InSolSys.com may assign its rights and obligations under this Agreement
and may utilize affiliate and/or agents in performing its duties and exercising
its rights under this Agreement, without your consent.
Subject to that restriction, this Agreement will be binding on, inure to
the benefit of, and be enforceable against the parties and their respective
successors and assignees.
8.7.
No Waiver. InSolSys.com's
failure to enforce the strict performance of any provision of this Agreement
will not constitute a waiver of InSolSys.com's right to subsequently enforce such
provision or any other provisions under this Agreement.
8.8.
Severability. If any
provision of this Agreement is deemed illegal, invalid, void or otherwise
unenforceable in whole or in part, that provision shall be severed or shall be
enforced only to the extent legally permitted, and the remainder of the
provision and the Agreement shall remain in full force and effect.
If any provision of this Agreement is deemed to be invalid, void or
unenforceable only with respect to a particular application, such term or
provision shall remain in full force and effect with respect to all other
applications.
8.9.
Survival. All
provisions of this Agreement relating to your warranties, intellectual property
rights, limitation and exclusion of liability, your indemnification obligations
and payment obligations shall survive the termination or expiration of this
Agreement.
ADDENDUM A
ADDITIONAL TERMS APPLICABLE
TO CO-LOCATION SERVICES
If you have registered for Co-Location Services, the term
“Services,” as defined in the opening paragraph of the Agreement, shall
include the Co-Location Services so that InSolSys.com's provision of all
services is governed by both the terms and conditions set forth in the Agreement
as well as the terms and conditions set forth in this Addendum A (the
“Addendum A”). To the extent
there are any contradictions between the terms of the Agreement and the terms of
this Addendum A with respect to your receipt of the Co-Location Services, then
the terms of this Addendum A shall control.
A1.
Co-Location.
(a)
InSolSys.com will permit you to locate certain network and computer
equipment and software (the “Co-Location Equipment”) in a designated area
(the “Accessible Space”) within the commercial office building provided by InSolSys.com (the “Facility”). InSolSys.com
shall provide or cause to be provided certain services (“Co-Location
Services”) as outlined in the applicable Order Form.
In connection with providing the Co-Location Services, InSolSys.com shall
also perform or provide, at no additional charge to you, the following services
which support the overall operation of the Accessible Space:
environmental systems maintenance, power plant maintenance and janitorial
services. You will be responsible
for any extraordinary maintenance, including, but not limited to, replacement of
hardware or software that may be required for the operation of Co-Location
Equipment.
(b)
The Accessible Space is hereby accepted by you “as is.”
You may use the Accessible Space only for the purposes of installing,
maintaining and operating hardware and software necessary to support local
access communications facilities and/or links to InSolSys.com or to other
entities located outside of the Accessible Space.
(c)
You will provide, maintain, repair and/or replace the Co-Location
Equipment, as needed, at your sole cost and expense.
You shall setup, install, configure and generally make ready the
Co-Location Equipment necessary to provide Co-Location Services.
InSolSys.com agrees that it shall cooperate fully with and assist you as
reasonably requested thereby with the installation of your Equipment and the
connection thereof to InSolSys.com's network.
(d)
You shall be solely responsible for the handling, processing and filing
any orders by customers generated by the Co-Location Equipment, if any, and for
handling your customers’ inquiries and/or complaints arising therefrom.
(e)
InSolSys.com may, in its sole discretion, relocate the Co-Location
Equipment and provide the Co-Location Services from a location other than the
Facility. In such event, InSolSys.com shall notify you of the new facility within ten (10) days of
relocating Co-Location Equipment.
A2.
Term. Any Co-Location
Services provided hereunder shall be provided to you for the initial term set
out in the applicable Order Form. Your
receipt of the Co-Location Services shall be automatically renewed under the
Agreement and this Addendum A as provided in Section 1.1 of the Agreement, and
may be terminated by you only as provided in Section 1.2.
A3.
Fees and Payment. Upon
registration for Co-Location Services, you must choose to pay for the services
either by credit card or upon your receipt of an invoice.
Your payment for all charges and fees are subject to the terms and
conditions of the Agreement.
A4.
Warranties and Limitation on Liability.
YOU ACKNOWLEDGE THAT YOUR RECEIPT OF THE CO-LOCATION SERVICES IS SUBJECT
TO THE LIMITATIONS ON WARRANTIES AND INSOLSYS.COM'S AND ITS SUPPLIERS
LIMITATIONS ON LIABILITY AS PROVIDED IN THE AGREEMENT.
YOU FURTHER ACKNOWLEDGE THAT THE INTERNET IS NEITHER OWNED NOR CONTROLLED
BY ANY ONE ENTITY; AS A RESULT, INSOLSYS.COM AND ITS SUPPLIERS EXPRESSLY DISCLAIM
ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THE CO-LOCATION
EQUIPMENT SHALL BE ABLE TO ACCESS THE INTERNET AT ANY GIVEN TIME.
INSOLSYS.COM REPRESENTS THAT IT SHALL MAKE EVERY GOOD FAITH EFFORT THAT
THE CO-LOCATION EQUIPMENT HAS INTERNET AVAILABILITY TO AS MANY USERS WITH AS
MINIMAL INTERRUPTIONS OF CO-LOCATION SERVICE AS POSSIBLE.
NEVERTHELESS, INSOLSYS.COM AND ITS SUPPLIERS CANNOT AND DO NOT WARRANT
THAT THERE WILL BE SATISFACTORY AND/OR UNINTERRUPTED CONNECTIONS TO THE
INTERNET.
A5.
Risk of Loss. You
acknowledge that you are accepting InSolSys.com's Co-Location Services at your
own risk. Neither InSolSys.com nor
its suppliers shall bear any risk of loss or damage of the Co-Location
Equipment, which shall be borne exclusively by you.
InSolSys.com shall bear the risk of loss or damage only of equipment that
InSolSys.com provides for the Co-Location Services.
Neither you nor InSolSys.com shall bear the risk of loss or damage of
third party equipment used in providing the Co-Location Services.
A6.
Rights.
(a)
During the term of the Agreement and this Addendum A, and provided you
are not then in default of any of the material terms of the Agreement or this
Addendum A, including without limitation, any payment terms:
i.
You will be allowed root access to the Co-Location Equipment.
You shall have sole access to the Co-Location Equipment for programming
purposes. You agree not to attempt
or allow any of its users to attempt access to other Web servers, computers,
routers, hubs or any other devices connected to any of InSolSys.com's networks
to which you do not have an account. Further,
you agree not to interconnect the Co-Location Equipment with equipment or
services of any entity without the prior written consent of InSolSys.com.
If any of the foregoing provisions are breached, in addition to any other
remedies InSolSys.com may have available at law, in equity or under the Agreement
or this Addendum A, InSolSys.com will immediately deny root access to you without
penalty to InSolSys.com.
ii.
You are entitled to physical access of the Co-Location Equipment during
normal business hours of the Facility or other facility where your Equipment is
located. Each such visit shall be
subject to InSolSys.com's rules and regulations then in effect concerning
access to the Facility or such other facility.
In addition, you must maintain, at your expense, during the entire time
this Agreement is in effect (1) Comprehensive General Liability Insurance with
contractual coverage in an amount not less than One Million U.S. Dollars
($1,000,000) per occurrence for bodily injury and property damage, (2)
Employer’s Liability Insurance in an amount not less than Five Hundred
Thousand U.S. Dollars ($500,000) per occurrence, and (3) Worker’s Compensation
in an amount not less than that prescribed by statutory limits.
Within ten (10) days of the date hereof, you shall furnish InSolSys.com
with certificates of insurance which evidence the minimum levels of insurance
set forth herein and which name InSolSys.com as additional insured.
(b)
The Co-Location Equipment, including all software not belonging to InSolSys.com that constitutes a part thereof, is and shall remain proprietary to
you. Title and all ownership and
property rights in and to the Co-Location Equipment and all copyrights,
trademarks, trade names, service marks and all other intellectual property
rights of you and/or its suppliers are and shall remain the sole and exclusive
property of you and/or your suppliers.
(c)
InSolSys.com agrees that we will not (i) modify the Co-Location Equipment,
including any software, in any way, (ii) copy, except for backup or archival
purposes, any software belonging to you including in the Co-Location Equipment,
(iii) sell, lend, rent, lease or otherwise transfer or dispose of the
Co-Location Equipment or any portion, component or copy thereof, (iv) use the
Co-Location Equipment or any portion, component or copy thereof for any purpose
other than providing Co-Location Services to you as contemplated in this
Addendum A.
A7.
Content. InSolSys.com
will exercise no control whatsoever over, nor have any responsibility or
liability whatsoever for, the content of the information passing through the
Co-Location Equipment, which shall be your sole responsibility.
InSolSys.com will have no responsibility to validate any information
passing through the Co-Location Equipment for content, correctness, usability or
for any other reason.
A8.
Prohibited Uses. In
addition to the terms and conditions set forth in the Agreement relating to your
use of the Services, you acknowledge and agree not to use, nor permit the use of
or by any person, of Co-Location Equipment or any part thereof, including any
links to other Web space, (i) to transmit any obscene communications with intent
to annoy another person or persons or to any person under 18 years of age, (ii)
in violation of any patent, trademark, service mark, or copyright law, or (iii)
to transmit unsolicited advertisements of services or products, a practice also
known as “spamming” or relay “spamming.”
INFORMATION FOR PENNSYLVANIA RESIDENTS:
Under Pennsylvania Civil Code Section 1789.3,
Pennsylvania residents entitled to the following specific consumer rights
information:
Pricing Information.
Current rates for using InSolSys.com's Services may be obtained by going to the
pricing schedule on our web site at www.inSolSys.com. InSolSys.com
reserves the right to change fees, surcharges, renewal fees or to institute new
fees at any time.
Complaints.
The Complaint Assistance Unit of the Division of Consumer Services of the
Pennsylvania Department of Consumer Affairs may be contacted
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