1. INTRODUCTION
These Terms of Service (“Terms”) constitute a legally binding agreement between you, whether personally or on behalf of an entity (“you,” “your,” or “Customer”) and Nelexa, Inc., a corporation with its principal place of business at Dallas, TX and New York, NY USA (“Company,” “we,” “us,” or “our”), governing your access to and use of the Company’s websites, applications, compute services, managed services, DDoS protection, and other services offered by the Company (collectively, the “Services”).
By accessing or using the Services, you agree to be bound by these Terms and all applicable laws and regulations. If you do not agree with any part of these Terms, you must immediately discontinue your access to and use of the Services.
2. DEFINITIONS
2.1. “Account” means the account created by Customer for accessing and using the Services.
2.2. “Authorized Users” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under Customer’s Account.
2.3. “Customer Data” means all data, content, and information submitted, uploaded, or otherwise transmitted by Customer or its Authorized Users through the Services.
2.4. “Documentation” means the Company’s user guides, online help, release notes, and other documentation related to the Services.
2.5. “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all applications and registrations, renewals, and extensions thereof.
2.6. “Service Level Agreement” or “SLA” means the document that outlines the Company’s commitments regarding service availability, performance, and support response times.
2.7. “Subscription Term” means the period during which Customer has agreed to subscribe to the Services with a beginning and end date, as specified in the applicable Order Form.
2.8. “Order Form” means the ordering documents, statements of work, or other written agreements between Customer and Company that specify the Services to be provided by Company.
2.9. “Confidential Information” means all non-public information disclosed by one party to the other, whether orally, in writing, or by other means, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
3. ACCOUNT REGISTRATION AND ELIGIBILITY
3.1. Registration. To access and use the Services, you must create an Account by providing complete and accurate registration information, including a valid email address and, where applicable, payment information.
3.2. Eligibility. By creating an Account, you represent and warrant that: (a) you are at least 18 years of age or the age of legal majority in your jurisdiction, whichever is greater; (b) you have the legal capacity and authority to enter into these Terms; (c) if you are registering on behalf of an entity, you have the authority to bind such entity to these Terms; and (d) all information provided by you during the registration process is true, accurate, and complete.
3.3. Account Security. You are responsible for maintaining the confidentiality of your Account credentials and for all activities that occur under your Account. You agree to: (a) immediately notify the Company of any unauthorized use of your Account or any other breach of security; and (b) ensure that you exit from your Account at the end of each session when accessing the Services using a public or shared computer.
3.4. Administrative Users. Customer may designate one or more administrative users who shall have the right to add, manage, and remove Authorized Users. Customer shall be responsible for all acts and omissions of its administrative users.
3.5. Verification of Identity. The Company reserves the right, at its sole discretion, to verify the identity of any account holder at any time, including requiring additional information or documentation, as a condition to continued use of the Services. Failure to comply with such verification requests may result in temporary or permanent suspension of access to the Services.
4. SERVICES
4.1. Provision of Services. Subject to these Terms and payment of applicable fees, the Company grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Services during the Subscription Term solely for Customer’s internal business purposes.
4.2. Service Modifications. The Company reserves the right to modify the Services at any time, with or without notice. The Company may add, alter, or remove functionality from the Services at any time without prior notice. The Company shall have no liability to Customer for any modification or cessation of the Services, provided that if the Company materially decreases the overall functionality of the Services, Customer may terminate these Terms and receive a pro-rated refund of any prepaid fees covering the remainder of the Subscription Term.
4.3. Beta Services. From time to time, the Company may invite Customer to try beta, preview, or other pre-release services at no charge. Customer acknowledges that such beta services are not generally available and are provided “AS IS” without any warranties or representations of any kind. The Company may discontinue beta services at any time in its sole discretion and may never make them generally available.
4.4. Service Level Agreement. The Company’s provision of the Services is governed by the Service Level Agreement (“SLA”) in effect at the time of service provision. The current version of the SLA is available at nelexa.net/sla. The remedies stated in the SLA are Customer’s sole and exclusive remedies for the Company’s failure to meet its service level commitments.
4.5. Support Services. The Company shall provide support services in accordance with its then-current support policy, the terms of which are available at nelexa.net/support. The Company reserves the right to modify its support policy at any time, effective upon posting of an updated version.
4.6. Third-Party Services. The Services may contain features designed to interoperate with third-party products, services, or platforms. To use such features, Customer may be required to obtain access to such third-party products, services, or platforms from their providers. If the provider of any such third-party products, services, or platforms ceases to make them available for interoperation with the corresponding Services features on reasonable terms, the Company may cease providing such Service features without entitling Customer to any refund, credit, or other compensation.
4.7. Resource Limitations. The Company reserves the right to establish or modify general practices and limits concerning use of the Services, including without limitation the maximum period of time that Customer Data will be retained, the maximum storage space that will be allotted, and the maximum number of times and duration for which Customer may access the Services in a given period of time.
5. CUSTOMER OBLIGATIONS
5.1. Acceptable Use. Customer shall: (a) use the Services only in accordance with these Terms, the Documentation, and applicable laws and regulations; (b) be responsible for the accuracy, quality, and legality of Customer Data and the means by which Customer acquires and uses such data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services; (d) promptly notify the Company of any unauthorized access or use of which Customer becomes aware; and (e) use the Services only in accordance with the Company’s Acceptable Use Policy available at nelexa.net/aup.
5.2. Usage Restrictions. Customer shall not: (a) sell, resell, license, sublicense, distribute, rent, or lease the Services, or include the Services in a service bureau or outsourcing offering; (b) use the Services to store or transmit infringing, libelous, unlawful, or tortious material, or to store or transmit material in violation of third-party rights; (c) use the Services to store or transmit malicious code or viruses; (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (e) attempt to gain unauthorized access to the Services or their related systems or networks; (f) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit; (g) copy the Services or any part, feature, function, or user interface thereof; (h) frame or mirror any part of the Services; (i) access the Services in order to build a competitive product or service; or (j) reverse engineer the Services (to the extent such restriction is permitted by law).
5.3. Customer Data. Customer grants the Company a worldwide, limited-term license to host, copy, transmit, and display Customer Data as necessary for the Company to provide the Services in accordance with these Terms. Subject to the limited licenses granted herein, the Company acquires no right, title, or interest from Customer or its licensors under these Terms in or to Customer Data.
5.4. Authorized Users. Customer shall: (a) ensure that its Authorized Users comply with these Terms; (b) be responsible for the acts and omissions of its Authorized Users; (c) promptly terminate access for any Authorized User who is no longer employed or engaged by Customer; and (d) not allow Authorized Users to share their user credentials.
5.5. Compliance with Laws. Customer shall comply with all applicable local, state, national, and foreign laws, treaties, and regulations in connection with its use of the Services, including those related to data privacy, international communications, and the transmission of technical or personal data. Customer assumes sole responsibility and liability for any violations of such laws, treaties, or regulations. Company shall have no responsibility or liability whatsoever for Customer’s failure to comply with any applicable laws, regulations, or legal requirements.
5.6. Notification of Security Issues. Customer shall promptly notify the Company of any known or suspected security breaches or unauthorized access to the Services or Customer Data. Customer will provide reasonable assistance to the Company in investigating and responding to any such incidents.
5.7. Restricted Uses. Customer shall not use the Services to: (a) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, or agents; (b) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (c) attempt to gain unauthorized access to the Services or their related systems or networks; (d) engage in any activity that is illegal, fraudulent, false, or misleading; (e) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (f) use the Services in any manner that could damage, disable, overburden, or impair the Services; or (g) create multiple accounts to simulate or act as a single account or otherwise attempt to evade the limitations described in these Terms.
6. FEES AND PAYMENT
6.1. Fees. Customer shall pay all fees specified in the Order Form or as otherwise agreed between the parties. Except as otherwise specified in these Terms or in an Order Form: (a) fees are based on Services purchased and not actual usage; (b) payment obligations are non-cancelable, and fees paid are non-refundable; and (c) quantities purchased cannot be decreased during the relevant Subscription Term.
6.2. Payment Terms. Unless otherwise provided in the Order Form, all fees are due and payable within thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to the Company and notifying the Company of any changes to such information.
6.3. Late Payment. If any amounts invoiced hereunder are not received by the Company by the due date, then, without limiting the Company’s rights or remedies, the Company may: (a) charge interest on such overdue amounts at a rate of 1.5% per month or, if lower, the maximum rate permitted by law; (b) condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2; and/or (c) suspend the Services until such amounts are paid in full.
6.4. Taxes. The Company’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If the Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.5. Price Changes. The Company reserves the right to modify its fees and charges for the Services. If the Company proposes to increase any fees for Services to which Customer is currently subscribed, the Company will provide at least thirty (30) days prior notice to Customer. If Customer does not agree to such price changes, Customer’s sole remedy is to terminate the affected Services at the end of the then-current Subscription Term.
6.6. Overage Fees. If Customer’s use of the Services exceeds the Service capacity set forth in the Order Form or otherwise requires the payment of additional fees pursuant to the terms of the Order Form, Customer shall be billed for such usage and shall pay the additional fees in accordance with this Section 6.
6.7. Fee Disputes. Customer must notify the Company in writing of any dispute or disagreement with invoiced charges within thirty (30) days after the date of the applicable invoice. Absent such notification, Customer shall be deemed to have agreed to the charges as invoiced.
6.8. Suspension of Service for Non-Payment. If Customer’s account is thirty (30) days or more overdue, in addition to any other rights and remedies (including the termination rights set forth herein), the Company reserves the right to suspend the Services provided to Customer, without liability to Customer, until such amounts are paid in full.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, the Company and its licensors reserve all of their right, title, and interest in and to the Services, including all of their related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
7.2. Customer Data. As between Customer and the Company, Customer owns its Customer Data. Customer grants the Company a non-exclusive, worldwide, royalty-free license to host, copy, transmit, display, and process Customer Data as necessary to provide the Services to Customer and as otherwise permitted by these Terms.
7.3. Feedback. If Customer or its Authorized Users provide any feedback, suggestions, recommendations, requests, or any other comments regarding the Services (“Feedback”), Customer hereby grants the Company a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate such Feedback into the Services or other Company offerings without restriction or payment to Customer.
7.4. Usage Data. Notwithstanding anything to the contrary herein, the Company may collect, use, and disclose quantitative data derived from the use of the Services for industry analysis, benchmarking, analytics, marketing, and other business purposes, provided that such data is aggregated and/or de-identified such that it cannot reasonably be used to identify Customer or any Authorized User (“Usage Data”). The Company owns all right, title, and interest in and to the Usage Data.
7.5. Company Trademarks. Customer may not use, display, mirror, or frame the Services, or any individual element within the Services, Company’s name, trademark, logo, or other proprietary information, without the Company’s express written consent.
7.6. Service Improvements. Customer acknowledges and agrees that the Company may use Customer Data and information derived from Customer’s use of the Services to improve the Services and other Company offerings, provided that such use does not reveal the identity of Customer or its Authorized Users, or the specific content of Customer Data, to any third party.
8. CONFIDENTIALITY
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data; Company’s Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of these Terms and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8.4. Survival. The provisions of this Section 8 shall survive the termination or expiration of these Terms for a period of five (5) years, except for Confidential Information that constitutes a trade secret under applicable law, for which the obligations of confidentiality shall survive for so long as such information remains a trade secret.
9. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
9.1. Company Representations and Warranties. The Company represents and warrants that: (a) it has the legal power to enter into these Terms; (b) it shall provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (c) the Services shall perform materially in accordance with the Documentation; and (d) it shall not knowingly introduce any malicious code into the Services.
9.2. Customer Representations and Warranties. Customer represents and warrants that: (a) it has the legal power to enter into these Terms; (b) it has obtained all necessary rights and consents to provide the Customer Data to the Company for use as contemplated herein; (c) Customer Data, and the use, processing, and storage thereof by the Company in accordance with these Terms, does not violate any laws, regulations, or third-party rights, including Intellectual Property Rights and privacy rights; and (d) Customer will use the Services only in compliance with all applicable laws and regulations.
9.3. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND THE COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, OR MEET CUSTOMER’S REQUIREMENTS. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND COMPANY DISCLAIMS ANY LIABILITY RELATING THERETO. CUSTOMER UNDERSTANDS AND AGREES THAT IT USES THE SERVICES AT ITS OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEMS, BUSINESS OPERATIONS, OR LOSS OF DATA THAT RESULTS FROM SUCH USE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COMPANY OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF PURCHASE OF THE APPLICABLE SERVICE.
10. INDEMNIFICATION
10.1. Limited Company Indemnification. Subject to the limitations set forth in Section 11, Company agrees to defend, indemnify and hold harmless Customer from and against any third-party claims, actions, or demands alleging that the Services, when used as authorized under these Terms, infringe any valid U.S. patent, copyright, or trademark of such third party. Notwithstanding the foregoing, Company shall have no obligation under this section or otherwise with respect to any infringement claim to the extent it is based upon: (a) Customer’s breach of these Terms; (b) modifications to the Services made by anyone other than the Company or its authorized representatives; (c) combination, operation, or use of the Services with other products, services, or materials not provided by the Company, if the Services would not infringe without such combination, operation, or use; or (d) Customer Data. Company’s obligations under this section are contingent upon: (i) Customer providing prompt written notice of the claim; (ii) Company having sole control of the defense and settlement of the claim; and (iii) Customer providing reasonable cooperation in the defense of such claim at Company’s expense. THIS SECTION STATES COMPANY’S SOLE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY THIRD-PARTY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT.
10.2. Indemnification Exclusions. The Company shall have no obligation under Section 10.1 to the extent a Claim arises from: (a) Customer’s breach of these Terms; (b) modifications to the Services made by anyone other than the Company or its authorized representatives; (c) combination, operation, or use of the Services with other products, services, or materials not provided by the Company, if the Services would not infringe without such combination, operation, or use; or (d) Customer Data.
10.3. Remedies for Infringement Claims. If the Services become, or in the Company’s opinion are likely to become, the subject of a Claim, the Company may, at its option and expense: (a) procure for Customer the right to continue using the Services; (b) modify the Services to make them non-infringing while maintaining substantially equivalent functionality; (c) replace the allegedly infringing aspects of the Services with non-infringing alternatives substantially equivalent in function; or (d) if options (a), (b), and (c) are not commercially reasonable, terminate these Terms and refund to Customer any prepaid, unused fees covering the remainder of the Subscription Term. This Section 10.3 states the Company’s sole liability, and Customer’s exclusive remedy, for any Claim of intellectual property infringement.
10.4. Indemnification by Customer. Customer shall defend, indemnify, and hold the Company, its affiliates, officers, directors, employees, contractors, licensors, and agents harmless from and against any and all Claims, damages, obligations, losses, liabilities, costs, debts, fines, penalties, expenses, and attorney’s fees arising out of or related to: (a) Customer Data; (b) Customer’s violation of applicable laws, regulations, or third-party rights; (c) Customer’s breach of these Terms; (d) Customer’s or its Authorized Users’ use of the Services in a manner not authorized by these Terms; (e) any disputes between Customer and its end users; (f) any activities conducted through Customer’s Account; (g) negligent, fraudulent, or willful misconduct of Customer or its Authorized Users; or (h) any other party’s access and use of the Services with Customer’s credentials. Customer’s indemnification obligations shall apply even if the Company has been advised of the possibility of such damages. The Company reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify the Company, and Customer agrees to cooperate with the Company’s defense of these Claims.
10.5. Exclusive Remedy. The provisions of this Section 10 set forth each party’s exclusive remedies and the entire liability of each party with respect to any claims covered by this Section.
- LIMITATION OF LIABILITY
11.1. COMPANY LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, USE, OR COST OF SUBSTITUTE PROCUREMENT, INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE.
11.2. LIMITATION OF COMPANY’S LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, TORT, STRICT LIABILITY, AND WARRANTY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO THE COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR LOST DATA), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITY ARISING FROM: (I) DEATH OR BODILY INJURY CAUSED BY THE COMPANY’S GROSS NEGLIGENCE; OR (II) ANY OTHER LIABILITY THAT CANNOT BE LIMITED BY APPLICABLE LAW.
11.3. NO LIMITATION ON CUSTOMER LIABILITY. NOTHING IN THESE TERMS SHALL LIMIT CUSTOMER’S LIABILITY FOR: (A) CUSTOMER’S INDEMNIFICATION OBLIGATIONS; (B) CUSTOMER’S BREACH OF CONFIDENTIALITY OBLIGATIONS; (C) CUSTOMER’S MISUSE OF THE COMPANY’S INTELLECTUAL PROPERTY RIGHTS; (D) CUSTOMER’S PAYMENT OBLIGATIONS; (E) CUSTOMER’S VIOLATION OF APPLICABLE LAWS OR REGULATIONS; (F) UNAUTHORIZED ACCESS TO THE SERVICES; (G) CUSTOMER’S NEGLIGENCE, FRAUDULENT ACTS OR OMISSIONS, OR WILLFUL MISCONDUCT; OR (H) ANY OTHER LIABILITY THAT CANNOT BE LIMITED BY APPLICABLE LAW. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ITS USE OF THE SERVICES IS AT ITS OWN RISK, AND THAT IT WILL BE SOLELY AND FULLY LIABLE FOR ANY BREACH OF THESE TERMS, INCLUDING ANY APPLICABLE LAWS OR REGULATIONS, BY CUSTOMER OR ANY AUTHORIZED USER.
11.4. Essential Purpose. The limitations of liability provided in this Section 11 shall apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
12. TERM AND TERMINATION
12.1. Term. These Terms commence on the date Customer first accepts them and continue until all subscriptions hereunder have expired or have been terminated.
12.2. Subscription Term. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other written notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term.
12.3. Termination for Cause. A party may terminate these Terms for cause: (a) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (b) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. In addition, the Company may terminate or suspend these Terms and/or Customer’s access to the Services immediately and without prior notice or liability: (i) if Customer fails to pay any amount due within fifteen (15) days after the Company provides written notice of such failure; (ii) if Customer or any Authorized User violates the Company’s Acceptable Use Policy; (iii) if Customer violates or fails to comply with any provision of these Terms; (iv) for security reasons; (v) if Customer’s use of the Services disrupts or poses a security risk to the Services or to any other customer or vendor of the Company; (vi) if Customer is using the Services for fraudulent or illegal activities; (vii) subject to applicable law, if Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (viii) if the Company’s provision of the Services to Customer is prohibited by applicable law.
12.4. Termination for Convenience. Customer may terminate these Terms for convenience at any time by providing written notice to the Company, provided that no refund of prepaid fees will be issued for any early termination.
12.5. Effect of Termination. Upon termination or expiration of these Terms for any reason: (a) all rights granted to Customer under these Terms shall immediately terminate; (b) Customer shall immediately cease all use of the Services and Documentation; (c) Customer shall pay any unpaid fees covering the remainder of the Subscription Term; and (d) any provision that, by its nature or express terms should survive, will survive such termination or expiration.
12.6. Data Export. Upon Customer’s request made within thirty (30) days after termination or expiration of these Terms, the Company will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, the Company shall have no obligation to maintain or provide any Customer Data and may thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
12.7. Survival. The following provisions shall survive any termination or expiration of these Terms: Sections 5.5, 6 (with respect to amounts owed as of termination or expiration), 7, 8, 9.3, 10, 11, 12.5, 12.6, and 13.
13. GENERAL PROVISIONS
13.1. Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
13.2. Dispute Resolution. Any dispute, controversy, or claim arising out of or relating to these Terms, including the formation, interpretation, breach, or termination thereof, shall be resolved as follows:
(a) Informal Resolution. The parties agree to first attempt to resolve any dispute informally by contacting the other party in writing to describe the dispute and requested relief. A Company representative will respond to such notice within fifteen (15) business days.
(b) Binding Arbitration. If the dispute is not resolved through informal resolution, either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. The arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules then in effect. The arbitration shall be conducted by a single arbitrator mutually agreed upon by the parties or, in the absence of such agreement, appointed by the AAA. The arbitration shall take place in Dallas County, Texas. The arbitrator’s decision shall be final, binding, and non-appealable. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Customer agrees that the arbitrator shall have the power to award attorneys’ fees and costs to the prevailing party. Customer acknowledges and agrees that irrespective of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
(c) Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. ANY ARBITRATION, LITIGATION, OR PROCEEDING TO RESOLVE DISPUTES SHALL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND NEITHER PARTY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY ACTION RELATED TO THESE TERMS OR THE SERVICES.
(d) Exceptions. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its Intellectual Property Rights, or to prevent irreparable harm. The Company shall also have the right to seek injunctive or other equitable relief for any violation of sections concerning ownership, proprietary rights, confidentiality, or payment of fees.
13.3. Export Compliance. The Services and other technology the Company makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Authorized Users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
13.4. Anti-Corruption. The parties shall comply with all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, and shall not, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money or anything of value to any government official for the purpose of influencing any act or decision of such government official.
13.5. Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
13.6. Notices. All notices under these Terms shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) the second business day after sending by email. Notices to the Company shall be sent to the address set forth in the introduction to these Terms, addressed to the attention of Legal Department. Notices to Customer shall be sent to the address provided by Customer during Account registration or as updated by Customer from time to time.
13.7. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.8. Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
13.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign these Terms in their entirety, without consent of the other party, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in breach of this Section shall be void and of no effect. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.10. Force Majeure. Neither party shall be liable for any failure or delay in performance under these Terms (other than for delay in the payment of money due and payable hereunder) for causes beyond its reasonable control and occurring without its fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
13.11. Survival. The following provisions shall survive any termination or expiration of these Terms: Sections 5.5, 6 (with respect to amounts owed as of termination or expiration), 7, 8, 9.3, 10, 11, 12.5, 12.6, and 13.
13.12. Entire Agreement. These Terms, including all exhibits and addenda hereto and all Order Forms, constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. No modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any addendum, exhibit, or schedule to these Terms, and (3) the body of these Terms.
13.13. Construction. Any heading, caption, or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. The use of the word “including” shall be interpreted to mean “including without limitation.” These Terms shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
13.14. Counterparts. These Terms may be executed in counterparts, which taken together shall form one legal instrument. Electronic signatures shall be binding as if they were original signatures.
14. DDOS PROTECTION SPECIFIC TERMS
14.1. DDoS Protection Services. The Company offers DDoS (Distributed Denial of Service) protection services designed to detect and mitigate DDoS attacks against Customer’s systems and networks (“DDoS Protection Services”).
14.2. No Guarantee of Protection. The Company employs industry-leading techniques and infrastructure to detect and mitigate DDoS attacks, successfully handling numerous attack vectors and volumes. However, due to the constantly evolving nature of DDoS attack methodologies, the Company cannot guarantee complete protection against all attacks, particularly novel or unprecedented attack types. While our protection systems are designed to defend against most common attack vectors with a high success rate, Customer acknowledges that no DDoS protection system can guarantee 100% effectiveness against all types and magnitudes of attacks. The Company will make commercially reasonable efforts to continually improve and adapt our protection systems as attack methodologies evolve. Customer is advised to implement additional security measures appropriate for its particular security needs and risk tolerance.
14.3. Response Time. The Company will make commercially reasonable efforts to respond to detected DDoS attacks in accordance with the timeframes specified in the applicable Service Level Agreement.
14.4. Traffic Analysis. Customer acknowledges and agrees that the Company may analyze, process, and temporarily store Customer’s network traffic to provide the DDoS Protection Services.
14.5. Cooperation. Customer agrees to cooperate with the Company in the event of a DDoS attack, including providing necessary access to Customer’s systems and networks, and sharing relevant information to assist in attack mitigation.
14.6. Traffic Filtering. In response to a DDoS attack, the Company may implement traffic filtering measures that could potentially impact legitimate traffic. Customer acknowledges this risk and agrees that the Company shall not be liable for any legitimate traffic blocked as a result of DDoS mitigation efforts.
14.7. Attack Notification. The Company will make commercially reasonable efforts to notify Customer promptly upon detection of a suspected DDoS attack targeting Customer’s systems. However, the Company cannot guarantee immediate detection or notification of all attacks.
14.8. Third-Party Mitigation. The Company may, at its discretion, utilize third-party DDoS mitigation providers as part of its overall protection strategy. Customer acknowledges that such third-party services may be subject to their own terms and conditions, which the Company will make available to Customer upon request.
15. MANAGED SERVICES SPECIFIC TERMS
15.1. Managed Services. The Company provides various managed services, including but not limited to system monitoring, patch management, backup and recovery, and technical support (“Managed Services”).
15.2. Service Hours. Unless otherwise specified in an Order Form, standard Managed Services are provided during normal business hours (9:00 AM to 5:00 PM local time in Customer’s primary business location, Monday through Friday, excluding holidays). Extended or 24/7 support may be available for an additional fee as specified in an Order Form.
15.3. Customer Responsibilities. To enable the Company to provide the Managed Services effectively, Customer shall: (a) provide the Company with necessary access to Customer’s systems and networks; (b) designate qualified personnel to act as liaisons with the Company; (c) promptly respond to the Company’s requests for information or approvals; (d) provide the Company with accurate and up-to-date information about Customer’s IT environment; (e) maintain all necessary licenses and permissions for software and hardware under management; (f) comply with all configuration and implementation requirements specified by the Company; and (g) maintain adequate security measures for components of Customer’s IT environment not managed by the Company.
15.4. Exclusions. Unless expressly included in an Order Form, Managed Services do not include: (a) hardware or software procurement; (b) physical installation or relocation of equipment; (c) training of Customer personnel; (d) development of custom applications; (e) data recovery from hardware or software failures that occurred prior to the commencement of the Managed Services; (f) support for software or hardware that has reached end-of-life as designated by the manufacturer; or (g) remediation of security incidents or malware infections that occurred prior to the commencement of the Managed Services.
15.5. Third-Party Products. The Company may recommend or use third-party products or services in delivering the Managed Services. Customer acknowledges that such third-party products may be subject to separate terms and conditions, and the Company makes no warranties or representations regarding third-party products or services.
15.6. Changes to Customer Environment. Customer shall notify the Company in advance of any material changes to Customer’s IT environment that may affect the delivery of Managed Services. The Company reserves the right to reassess and adjust the Managed Services and associated fees following any significant change to Customer’s IT environment.
15.7. Remote Access. Customer acknowledges that the Company will primarily provide Managed Services through remote access to Customer’s systems. Customer shall ensure that all necessary connectivity and security measures are in place to facilitate such remote access in a secure manner.
15.8. Service Level Objectives. The Company will use commercially reasonable efforts to meet the service level objectives specified in the applicable SLA. The remedies stated in the SLA shall be Customer’s sole and exclusive remedies for the Company’s failure to meet the service level objectives.
15.9. Maintenance Windows. The Company reserves the right to perform scheduled maintenance on systems used to provide Managed Services. The Company will provide advance notice of such maintenance and will make reasonable efforts to minimize disruption to Customer’s operations.
16. COMPUTE SERVICES SPECIFIC TERMS
16.1. Compute Services. The Company provides various compute services, including but not limited to virtual machines, containers, database services, storage services, and networking services (collectively, “Compute Services”).
16.2. Resource Allocation. Customer shall be entitled to utilize the Compute Services resources as specified in the applicable Order Form. The Company reserves the right to impose reasonable limitations on Customer’s use of the Compute Services to ensure equitable access to resources for all customers and overall system stability.
16.3. Service Maintenance. The Company performs routine maintenance of the Compute Services infrastructure. The Company will provide Customer with advance notice of scheduled maintenance that may impact Customer’s use of the Compute Services, except in cases of emergency maintenance. Customer acknowledges that the Compute Services may be temporarily unavailable during maintenance periods.
16.4. Resource Overage. If Customer’s use of the Compute Services exceeds the resource allocations specified in the Order Form, Customer will be charged additional fees based on the Company’s then-current overage rates. The Company will provide notification to Customer when resource usage approaches defined thresholds.
16.5. Data Storage. Customer acknowledges that the Company does not perform automatic backups of Customer Data stored in the Compute Services unless specifically included in an Order Form. Customer is responsible for implementing appropriate backup and disaster recovery procedures for Customer Data.
16.6. Data Security. The Company implements reasonable security measures to protect Customer Data stored in the Compute Services. However, Customer is responsible for configuring and using the Compute Services in a manner that enhances security, including but not limited to proper access control, encryption, and vulnerability management.
16.7. Customer Applications. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer’s applications and Customer Data on the Compute Services. Customer shall ensure that its applications do not: (a) violate any applicable law or regulation; (b) infringe any third-party rights; (c) contain or transmit any viruses, worms, malware, or other harmful or malicious code; (d) interfere with or disrupt the integrity or performance of the Compute Services or third-party data contained therein; or (e) attempt to gain unauthorized access to the Compute Services or their related systems or networks.
16.8. IP Addresses. Any IP addresses provided to Customer in connection with the Compute Services are the property of the Company and are not transferable by Customer. Customer’s right to use such IP addresses terminates upon expiration or termination of the applicable Compute Services.
16.9. Resource Monitoring. The Company may monitor Customer’s usage of the Compute Services to ensure compliance with these Terms and the applicable Order Form. If the Company determines that Customer’s usage poses a security risk, adversely impacts system performance, or exceeds the purchased resource allocations, the Company reserves the right to temporarily limit or suspend Customer’s access to the Compute Services until such issues are resolved.
17. DEDICATED SERVERS SPECIFIC TERMS
17.1. Dedicated Server Services. The Company provides dedicated server services which include the allocation of physical server hardware for Customer’s exclusive use (“Dedicated Server Services”). These Dedicated Server Services are provided subject to all applicable provisions of these Terms of Service in addition to the specific terms contained in this section.
17.2. Hardware Ownership. All server hardware, components, peripheral equipment, and physical infrastructure provided as part of the Dedicated Server Services remain the sole and exclusive property of the Company. Customer acquires no ownership rights, title, or interest in any physical equipment provided by the Company. Customer shall not remove, alter, or obscure any property tags, identification markings, or ownership indicators affixed to or displayed on the server hardware.
17.3. Server Specifications. The Company will provide server hardware according to the specifications outlined in the applicable Order Form. While the Company will make commercially reasonable efforts to provide the exact specifications ordered, the Company reserves the right to make reasonable substitutions with hardware of equivalent or superior performance characteristics if necessary due to equipment availability, manufacturer changes, or technological advancement. Any material changes to the specifications will be communicated to Customer prior to deployment, where feasible.
17.4. Server Location. Unless otherwise specified in the Order Form, the Company has sole discretion regarding the data center location of the dedicated servers. The Company may relocate servers within the same data center without prior notice. Relocation to a different data center facility will require Customer’s prior consent except in cases of emergency, data center decommissioning, or as necessary to maintain service continuity. In emergency situations where prior notice is not practicable, the Company will notify Customer as soon as reasonably possible after such relocation.
17.5. Initial Configuration. The Company will perform the initial hardware setup and basic system installation as specified in the Order Form. This typically includes the physical installation of server components, network connectivity setup, and basic operating system installation. Unless otherwise agreed in writing or included as part of Managed Services, Customer is responsible for all subsequent software configuration, installation, updates, and maintenance. The Company is not responsible for configuration errors, performance issues, or security vulnerabilities resulting from Customer’s software configurations or installations.
17.6. Server Access. Customer will be granted administrative or root access to dedicated servers as specified in the Order Form. Customer acknowledges that with such privileged access comes complete responsibility for server security, software updates, and proper system administration. Customer shall implement reasonable security measures to prevent unauthorized access to the servers, including but not limited to secure password policies, key-based authentication where applicable, and regular security updates. Customer shall be solely responsible for any unauthorized access to the servers resulting from Customer’s failure to maintain adequate access controls or security measures.
17.7. Hardware Maintenance. The Company is responsible for maintaining the physical hardware components of the dedicated servers. In the event of hardware failure: (a) The Company will begin diagnosis within the timeframe specified in the applicable SLA from the time Customer reports the issue or the Company detects the issue, whichever is earlier; (b) The Company will replace failed hardware components at no additional cost to Customer, except as specified in Section 20.8; (c) Customer acknowledges that hardware replacement may require scheduled downtime, which will be coordinated with Customer when possible and with reasonable advance notice except in emergency situations; (d) The Company will use commercially reasonable efforts to minimize service disruption during hardware maintenance activities; (e) The Company reserves the right to perform preventative maintenance when necessary to maintain server reliability and performance.
17.8. Customer-Caused Damage. Customer shall be responsible for any damage to server hardware caused by: (a) Customer’s improper use, abuse, or misconfiguration of the server; (b) Customer’s installation or use of unauthorized, incompatible, or unstable software or operating systems; (c) Any breach of these Terms by Customer or its Authorized Users; (d) Any deliberate acts of vandalism or sabotage by Customer’s employees, contractors, or Authorized Users; (e) Customer’s failure to maintain appropriate environmental conditions if the servers are located at Customer’s premises. The Company reserves the right to charge Customer for the repair or replacement of hardware damaged due to such causes, based on the Company’s then-current rates for hardware replacement plus reasonable labor costs for diagnosis and installation. The Company will provide Customer with documentation of the damage and associated costs.
17.9. Operating System and Software. Unless included in the Order Form as a managed service: (a) Customer is solely responsible for maintaining and updating all operating systems and software installed on the dedicated servers; (b) Customer is solely responsible for ensuring proper licensing of all software installed on the dedicated servers; (c) Customer shall indemnify and hold harmless the Company from any claims, damages, or liabilities arising from Customer’s use of improperly licensed software; (d) The Company makes no warranties or representations regarding the performance, security, or compatibility of operating systems or software chosen and installed by Customer; (e) The Company reserves the right to restrict or terminate Customer’s use of software that negatively impacts network performance or security, or violates applicable law or the Company’s Acceptable Use Policy.
17.10. Backup Services. Unless specifically included in the Order Form, the Company does not perform automatic backups of data stored on dedicated servers. Customer is solely responsible for implementing appropriate backup procedures for all data, configurations, and software. Customer acknowledges that: (a) Hardware failures can occur at any time and may result in data loss; (b) The Company is not responsible for any data loss resulting from hardware failures, misconfigurations, software issues, or any other cause; (c) In the event of hardware replacement, the Company will make reasonable efforts to recover data from failed components but does not guarantee data recovery; (d) The Company recommends that Customer maintain regular, tested backups stored in a location separate from the dedicated server.
17.11. Network Connectivity. The Company will provide network connectivity to the dedicated servers as specified in the Order Form. Customer acknowledges that: (a) Temporary network interruptions may occur as part of routine maintenance, which will be scheduled in advance when possible; (b) Network performance may vary based on overall usage, congestion, external factors, and actions of third-party network providers; (c) Network usage is subject to the Company’s Acceptable Use Policy; (d) The Company reserves the right to implement reasonable traffic management measures to ensure equitable distribution of network resources; (e) The Company does not guarantee specific latency, packet loss, or throughput metrics unless explicitly stated in the Order Form or SLA.
17.12. Bandwidth Allocation and Overage. The Order Form will specify the included bandwidth allocation for the Dedicated Server Services. Bandwidth usage exceeding this allocation will result in additional charges at the Company’s then-current rates. The following provisions apply to bandwidth usage: (a) Bandwidth usage is typically measured on a calendar month basis unless otherwise specified in the Order Form; (b) The Company will make reasonable efforts to notify Customer when bandwidth usage reaches 80% of the allocated limit; (c) Customer is responsible for monitoring its own bandwidth usage through tools provided by the Company; (d) The Company’s bandwidth measurement tools and records shall be the sole determinant of bandwidth usage for billing purposes; (e) Unused bandwidth allocation does not roll over to subsequent billing periods unless explicitly stated in the Order Form.
17.13. IP Addresses. The Company will provide IP addresses as specified in the Order Form. These IP addresses remain the property of the Company or its providers and are licensed, not sold, to Customer. The following provisions apply to IP addresses: (a) Upon termination of the Dedicated Server Services, Customer’s right to use these IP addresses ceases immediately; (b) The Company reserves the right to change IP addresses with reasonable notice if necessary for network management; (c) Customer shall comply with ARIN (American Registry for Internet Numbers) or other applicable regional internet registry policies regarding IP address usage; (d) The Company makes no guarantees regarding the reputation of provided IP addresses; (e) Customer shall not knowingly engage in activities that may result in blacklisting or reputation damage to the assigned IP addresses.
17.14. Server Monitoring. Unless included as a managed service, the Company does not actively monitor the operational status, performance, or security of Customer’s dedicated servers. Customer is responsible for implementing appropriate monitoring solutions to track server health, performance metrics, security events, and application availability. The Company may, at its discretion, implement basic infrastructure monitoring to detect hardware failures or network issues, but this does not relieve Customer of its responsibility to monitor its own servers.
17.15. Compliance Responsibility. Customer is solely responsible for ensuring that its use of the dedicated servers complies with all applicable laws, regulations, and industry standards. This includes but is not limited to: (a) Data protection and privacy laws (including GDPR, CCPA, and other applicable privacy regulations); (b) Industry-specific compliance requirements (such as HIPAA, PCI DSS, SOX, or GLBA); (c) Export control regulations; (d) Intellectual property laws; (e) Consumer protection laws; (f) Anti-spam and electronic communication regulations. Customer shall implement appropriate technical and organizational measures to ensure compliance with such requirements based on the nature and sensitivity of the data being processed on the dedicated servers.
17.16. Term and Renewal. Dedicated Server Services are provided for the term specified in the Order Form. Unless otherwise stated in the Order Form, Dedicated Server Services will automatically renew for additional periods equal to the initial term unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the current term. The Company reserves the right to adjust pricing for renewal terms by providing notice of such adjusted pricing at least sixty (60) days prior to the renewal date.
17.17. Server Decommissioning. Upon termination of the Dedicated Server Services for any reason: (a) The Company will securely decommission the server hardware according to industry standard practices; (b) Unless otherwise arranged in advance and at additional cost, the Company will not be responsible for migrating or transferring Customer Data to another service or provider; (c) Customer shall have no further access to the server or any data stored thereon after the termination date; (d) The Company will securely erase all data from storage devices before repurposing the hardware, using industry-standard data destruction methods; (e) Upon Customer’s written request made within ten (10) days after termination, and subject to payment of applicable fees, the Company may provide a one-time export of Customer Data in a standard format to be determined by the Company.
17.18. Hardware Upgrades. Customer may request hardware upgrades during the term of the Dedicated Server Services, subject to availability and additional fees. Upgrade requests must be submitted in writing and are subject to the Company’s approval. Hardware upgrades may require scheduled downtime, which will be coordinated with Customer. If hardware upgrades result in a higher tier of service, the fees for the Dedicated Server Services will be adjusted accordingly for the remainder of the term.
17.19. Remote Hands Services. The Company may provide Remote Hands services for dedicated servers at the Company’s data centers. Remote Hands services involve physical interactions with the server hardware by the Company’s personnel at Customer’s request. Such services are billed at the Company’s then-current rates, unless included in the Order Form, and are subject to personnel availability. The Company shall not be liable for any damages resulting from properly performed Remote Hands services carried out according to Customer’s instructions.
17.20. Hardware Customization. Any customization of server hardware beyond the standard configurations offered by the Company must be specifically agreed upon in the Order Form. Custom hardware configurations may affect hardware replacement timeframes and service level commitments. The Company reserves the right to charge additional fees for maintenance of non-standard hardware configurations.
18. DATA PROTECTION
18.1. Data Processing. To the extent that Customer Data contains personal data, the Company will process such personal data in accordance with its Privacy Policy, available at nelexa.net/privacy-policy, and all applicable data protection laws. The Company will process personal data only in accordance with Customer’s instructions as necessary to provide the Services.
18.2. Security Measures. The Company shall implement and maintain appropriate technical and organizational measures to protect Customer Data from unauthorized access, use, disclosure, alteration, or destruction. Such measures shall be appropriate to the risks involved and the nature of the Customer Data.
18.3. Security Incident Notification. The Company shall notify Customer without undue delay upon becoming aware of a security breach affecting Customer Data. The notification shall include information about the nature of the breach, the categories and approximate number of data subjects concerned, the likely consequences of the breach, and the measures taken or proposed to be taken to address the breach.
18.4. Subprocessors. Customer acknowledges and agrees that the Company may engage third-party subprocessors to process Customer Data for the purposes of providing the Services. The Company shall ensure that any such subprocessors are bound by written agreements requiring them to provide at least the level of data protection required of the Company under these Terms. The Company shall remain liable for the acts and omissions of its subprocessors.
18.5. Customer Obligations. Customer shall ensure that it has obtained all necessary rights and consents to provide the Customer Data to the Company for processing as contemplated under these Terms. Customer shall also ensure that its use of the Services and its instructions to the Company regarding the processing of personal data comply with all applicable data protection laws.
18.6. Data Transfers. The parties acknowledge that the provision of the Services may involve the transfer of personal data to countries outside the European Economic Area or the country where Customer is located. The Company shall ensure that such transfers are made in compliance with applicable data protection laws.
18.7. Data Retention. The Company will retain Customer Data for as long as necessary to provide the Services and fulfill the purposes outlined in the Privacy Policy, unless a longer retention period is required or permitted by law. Upon termination or expiration of these Terms, the Company will handle Customer Data in accordance with Section 12.6.
18.8. Customer Control. The Company acknowledges that Customer retains control over the selection of which data to upload or store within the Services. Customer is responsible for implementing its own data protection and backup procedures with respect to Customer Data.
19. COMPLIANCE WITH LAWS
19.1. General Compliance. Each party shall comply with all applicable federal, state, local, and foreign laws, rules, and regulations in connection with its performance under these Terms and its use of the Services.
19.2. Industry-Specific Regulations. Customer acknowledges that the Company is not responsible for determining whether the Services meet any industry-specific compliance requirements applicable to Customer’s business. Customer is solely responsible for determining whether the Services are appropriate for Customer’s use in light of any regulations such as HIPAA, GLBA, SOX, PCI DSS, or other applicable laws and regulations.
19.3. Export Compliance. The Services and related technologies may be subject to export control and sanctions laws of the United States and other jurisdictions. Customer agrees to comply with all such laws and regulations as they relate to access to and use of the Services. Customer shall not access or use the Services if Customer is located in any jurisdiction in which the provision of the Services is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and shall not provide access to the Services to any government, entity, or individual located in any Prohibited Jurisdiction. Customer represents, warrants, and covenants that: (a) Customer is not named on any U.S. government denied-party list; (b) Customer will not permit any Authorized User to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions, or restrictions; and (c) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer and its Authorized Users are located.
19.4. Anti-Corruption. Each party shall comply with all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. Neither party shall offer, promise, give, request, accept, or agree to accept any gift, payment, consideration, financial or non-financial advantage, or benefit of any kind which constitutes a bribe, kickback, or other corrupt practice.
19.5. Government Users. The Services and related documentation are “commercial items” as defined in 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services and related documentation are provided to U.S. Government end users: (a) only as commercial items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
20. MISCELLANEOUS
20.1. No Third-Party Beneficiaries. These Terms do not confer any rights or remedies upon any person or entity other than the parties and their respective successors and permitted assigns.
20.2. Electronic Signatures. The parties agree that electronic signatures, whether digital or encrypted, are intended to authenticate these Terms and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.
20.3. Amendments. The Company reserves the right to modify these Terms at any time, for any reason, by posting a revised version on its website or by otherwise notifying Customer. The modified terms will become effective upon posting or notification, or at such later time as the Company may specify. Customer’s continued use of the Services after the effective date of the modified terms constitutes Customer’s acceptance of such terms. BY CONTINUING TO USE OR ACCESS THE SERVICES AFTER THE EFFECTIVE DATE OF ANY MODIFICATIONS TO THESE TERMS, CUSTOMER AGREES TO BE BOUND BY THE MODIFIED TERMS. IT IS CUSTOMER’S RESPONSIBILITY TO CHECK THE COMPANY’S WEBSITE REGULARLY FOR MODIFICATIONS TO THESE TERMS. If Customer does not agree to the modified terms, Customer’s sole and exclusive remedy is to terminate its use of the Services and close its Account.
20.4. Interpretation. The headings in these Terms are for convenience only and shall not affect their interpretation. The words “include,” “includes,” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “or” is not exclusive.
20.5. Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
20.6. Waiver. No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right. No waiver under these Terms shall be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver. The Company’s decision to waive any provision of these Terms in one instance shall not constitute a waiver of any other provision or the same provision in any other instance.
20.7. Publicity. Neither party may issue press releases or any other public announcement of any kind relating to these Terms without the other party’s prior written consent, except that either party may include the name and logo of the other party in customer or vendor lists in accordance with the other party’s standard logo and name usage guidelines.
21. ACCEPTANCE
BY CLICKING “I ACCEPT,” “I AGREE,” OR A SIMILAR BUTTON, OR BY ACCESSING OR USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THESE TERMS. IF THE INDIVIDUAL ACCEPTING THESE TERMS IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS.