a.When Accepted by Kemteck, the Order submitted by Customer creates
a contract between Customer and Kemteck, consisting of the Order, the
applicable Service Description and these Terms of Service. An Order is “Accepted”
by Kemteck when (i) with respect to Orders submitted online, Kemteck provides
Services in response to the Order or bills Customer for payment and (ii) with
respect to Orders reduced to writing and signed on an approved Kemteck form,
when an authorized representative of Kemteck executes and delivers such form
signed by Customer.
b.Kemteck will provide, and Customer will purchase and pay for, the
Services specified in the Order for the service fees specified in the Order and
the applicable Service Description (the “Service Fees”).
c.In connection with any Hosting Services, Customer will not use
storage space in excess of the storage limits established for the Services in
the Service Descriptions, plus any storage space purchased by Customer. If
Customer uses storage space in excess of such amounts, Kemteck may, without
limiting its other rights or remedies, assess Customer with additional fees.
d.In connection with any Hosting Services, if Customer’s actual
bandwidth usage in any month exceeds the limit in the Service Description,
Customer will pay Kemteck such additional fees as may be specified in the
Service Description.
2.Fees, Taxes and Payment. Customer will pay to Kemteck the Service
Fees in the manner set forth in the Order. Kemteck may increase the Service
Fees (i) in the manner permitted in the Service Description and (ii) at any
time on or after expiration of the Initial Term by providing ten (10) days
prior written notice thereof to Customer. The Service Fees do not include any
applicable sales, use, revenue, excise or other taxes imposed by any taxing
authority with respect to the Services or any software provided hereunder
(excluding any tax on Kemteck’s net income). All such taxes will be added to
Kemteck’s invoices for the Service Fees as separate charges to be paid by
Customer. All fees are fully earned when due and non-refundable when paid.
Unless otherwise specified, invoices for the Service Fees and related charges
shall be due and payable within 30 days after the date of the invoice. If any
invoice is not paid within 45 days after the date of the invoice, Kemteck may
charge Customer a late fee of $15 for such invoice; in addition any amounts
payable to Kemteck not paid when due will bear interest at the rate of one and
one half percent (1.5%) per month or the maximum rate permitted by applicable
law, whichever is less. If Kemteck collects any payment due at law or through
an attorney at law or under advice therefrom or through a collection agency, or
if Kemteck prevails in any action to which the Customer and Kemteck are
parties, Customer will pay all costs of collection, arbitration and litigation,
including, without limitation, all court costs and Kemteck’s reasonable
attorneys’ fees. If any check is returned for insufficient funds Kemteck may
impose a processing charge of $25.
3.Term and Termination.
.Hosting Services will commence on the Effective Date indicated in
the Order and continue for the duration of the Initial Term. Thereafter, the
Order will automatically renew for successive one month periods unless the
Order is earlier terminated in accordance with its terms or either party gives
written notice to the other party of non-renewal at least 30 days prior to
expiration of the then-current term.
a.Either party may terminate this Agreement immediately upon the
occurrence of any one or more of the following events: (i) the other party
fails to pay when due any amounts required to be paid under this Agreement;
(ii) the other party breaches any material term or provision of this Agreement
(other than a breach described in subsection (i) above), and if capable of
cure, such breach remains uncured 30 days after the non-breaching party gives
written notice thereof to the breaching party; or (iii) the other party becomes
insolvent, makes an assignment for the benefit of its creditors, institutes or
becomes subject to any proceeding under any bankruptcy or similar laws for the
relief of debtors, or seeks the appointment of, or becomes subject to the
appoint of, any trustee or receiver for all or any portion of such party’s
assets
b.Kemteck may terminate this Agreement (i) if the Services are
prohibited by applicable law, or become impractical or unfeasible for any
technical, legal or regulatory reason, by giving Customer as much prior notice
as reasonably practicable or (ii) immediately by giving written notice to
Customer, if Kemteck determines in good faith that Customer’s use of the
Customer Web site or the Customer Content violates the Acceptable Use Policy.
c.Upon termination of this Agreement for any cause or reason
whatsoever, neither party shall have any further rights or obligations under
this Agreement, except as expressly set forth herein. The provisions of Sections
3(d), 4, 8, 10, 11, 13 and 15 of this Agreement shall survive the
expiration or termination of this Agreement for any cause or reason whatsoever,
and, notwithstanding the expiration or termination of this Agreement, the
parties shall each remain liable to the other for any indebtedness or other
liability theretofore arising under this Agreement. Termination of this
Agreement and retention of pre-paid fees and charges shall be in addition to,
and not be in lieu of, any other legal or equitable rights or remedies to which
Kemteck may be entitled.
d.With respect to Non-Prepaid Plans, within 30 days after the
termination of this Agreement, Customer will pay the Termination Charge to
Kemteck unless (i) Kemteck terminated the Order under Section 3(c) or
(ii) Customer terminated the Order under Section 3(b). With respect to
Prepaid Plans, Customer will pay the Termination Charge as provided in the
Service Description. The parties agree that the Termination Charge constitutes
consideration for Kemteck’s time, effort and expense in preparing and reserving
the capacity to perform its obligations hereunder, as actual damages are
difficult to ascertain. If Customer terminates the Order in accordance with Section
3(b), or if Kemteck terminates the Order under Sections 3(c)(i) or 12(c),
Kemteck shall return to Customer, and Customer shall accept, as Customer’s sole
and exclusive remedy for Kemteck’s breach of the Order, any Service Fees paid
in advance by Customer hereunder attributable to Services not yet rendered as
of the date of termination.
4.Customer’s Representations and Warranties. Customer hereby
represents and warrants to Kemteck, and agrees that during the Term Customer
will ensure that: (a) Customer is the owner or valid licensee of the Customer
Content and each element thereof, and Customer has secured all necessary
licenses, consents, permissions, waivers and releases for the use of the
Customer Content and each element thereof, including without limitation, all trademarks,
logos, names and likenesses contained therein, without any obligation by
Kemteck to pay any fees, residuals, guild payments or other compensation of any
kind to any Person; (b) Customer’s use, publication and display of the Customer
Content will not infringe any copyright, patent, trademark, trade secret or
other proprietary or intellectual property right of any Person, or constitute a
defamation, invasion of privacy or violation of any right of publicity or any
other right of any Person, including, without limitation, any contractual,
statutory or common law right or any “moral right” or similar right however
denominated; (c) Customer will comply with all applicable laws, rules and
regulations regarding the Customer Content and the Customer Web site and will
use the Customer Web site only for lawful purposes; (d) Customer has used its
best efforts to ensure that the Customer Content is and will at all times
remain free of all computer viruses, worms, trojan horses and other malicious
code; and (e) Customer will use the Services only for business purposes and not
for any family, household or personal use.
5.License to Kemteck. Customer hereby grants to Kemteck a
non-exclusive, royalty-free, worldwide right and license during the Term to do
the following to the extent necessary in the performance of Services under the
Order: (a) digitize, convert, install, upload, select, order, arrange, compile,
combine, synchronize, use, reproduce, store, process, retrieve, transmit,
distribute, publish, publicly display, publicly perform and hyperlink the
Customer Content; and (b) make archival or back-up copies of the Customer
Content and the Customer Web site. Except for the rights expressly granted
above, Kemteck is not acquiring any right, title or interest in or to the
Customer Content, all of which shall remain solely with Customer.
6.Kemteck’s Acceptable Use Policy. Customer will abide by,
and utilize the Services and the Customer Web site only in accordance with, the
Acceptable Use Policy (the “Acceptable Use Policy”) that Kemteck posts
on its Web site, as such Acceptable Use Policy may be changed by Kemteck from
time to time. The Acceptable Use Policy is hereby incorporated herein and made
a part hereof by this reference. Customer shall impose the Acceptable Use Policy
on its customers and End Users to the extent necessary to ensure their
compliance. Customer shall familiarize itself with the Acceptable Use Policy
and periodically access Kemteck’s Web site to determine if Kemteck has made any
changes thereto.
7.Customer’s Responsibilities.
.Customer is solely responsible for the quality, performance and
all other aspects of the Customer Content and the goods or services provided
through the Customer Web site.
a.Customer will cooperate fully with Kemteck in connection with
Kemteck’s performance of the Services. Customer must provide any equipment or
software that may be necessary for Customer to use the Services. Delays in
Customer’s performance of its obligations under this Agreement will extend the
time for Kemteck’s performance of its obligations that depend on Customer’s
performance on a day for day basis. Customer will notify Kemteck of any change
in Customer’s mailing address, telephone, e-mail or other contact information.
b.Customer assumes full responsibility for providing End Users with
any required disclosure or explanation of the various features of the Customer
Web site and any goods or services described therein, as well as any rules,
terms or conditions of use.
c.Customer will provide Kemteck with a registered domain name for
the Customer Web site, or, upon Customer’s request and subject to Kemteck’s
Domain Name Registration Terms and Conditions (http://www.Kemteck.com/legal/domain/default.asp),
the provisions of which are incorporated herein by this reference, Kemteck will
register an Internet domain name on behalf of Customer.
d.Because the Hosting Services permit Customer to electronically
transmit or upload content directly to the Customer Web site, Customer shall be
fully responsible for uploading all content to the Customer Web site and
supplementing, modifying and updating the Customer Web site. Customer is also
responsible for ensuring that the Customer Content and all aspects of the
Customer Web site are compatible with the hardware and software used by Kemteck
to provide the Hosting Services, as the same may be changed by Kemteck from
time to time. Specifications for the hardware and software used by Kemteck to
provide the Hosting Services will be available on Kemteck’s Web site. Customer
shall periodically access Kemteck’s Web site to determine if Kemteck has made
any changes thereto. Kemteck shall not be responsible for any damages to the
Customer Content, the Customer Web site or other damages or any malfunctions or
service interruptions caused by any failure of the Customer Content or any
aspect of the Customer Web site to be compatible with the hardware and software
used by Kemteck to provide the Hosting Services.
e.Unless the applicable Service Description provides otherwise,
Customer is solely responsible for making back-up copies of the Customer Web
site and Customer Content.
8.Kemteck Intellectual Property.
.Kemteck hereby grants to Customer a non-exclusive,
non-transferable, royalty-free license, exercisable solely during the term of
this Agreement, to use applicable Kemteck Technology solely for the purpose of
accessing and using the Services. Customer may not use the Kemteck Technology
for any purpose other than accessing and using the Services. Except for the
rights expressly granted above, this Agreement does not transfer from Kemteck
to Customer any Kemteck Technology, and all rights, titles and interests in and
to the Kemteck Technology shall remain solely with Kemteck. Customer shall not,
directly or indirectly, reverse engineer, decompile, disassemble or otherwise
attempt to derive source code or other trade secrets from any of the Kemteck
Technology.
a.Kemteck’s trademarks, tradenames, service marks, logos, other
names and marks, and related product and service names, design marks and
slogans are the sole and exclusive property of Kemteck. Customer may not use
any of the foregoing in any advertising, publicity or in any other commercial
manner without the prior written consent of Kemteck. Kemteck shall maintain and
control ownership of all Internet protocol numbers and addresses that may be
assigned by Kemteck to Customer. Kemteck may, in its sole discretion, change or
remove any and all such Internet protocol numbers and addresses.
b.Any feedback, data, answers, questions, comments, suggestions,
ideas or the like which Customer sends to Kemteck relating to the Services will
be treated as being non-confidential and non-proprietary. Kemteck may use,
disclose or publish any ideas, concepts, know-how or techniques contained in
such information for any purpose whatsoever.
9.Limited Warranty.
.Kemteck represents and warrants to Customer that the Services will
be performed (i) in a manner consistent with industry standards reasonably
applicable to the performance thereof; (ii) at least at the same level of
service as provided by Kemteck generally to its other customers for the same
services; and (iii) in compliance in all material respects with the applicable
Service Descriptions. Customer will be deemed to have accepted such Services
unless Customer notifies Kemteck within 30 days after performance of any
Services of any breach of the foregoing warranties. Customer’s sole and
exclusive remedy, and Kemteck’s sole obligation, for breach of the foregoing
warranties shall be for Kemteck, at its option, to re-perform the defective
Services at no cost to Customer, or, in the event of interruptions to the
Services caused by a breach of the foregoing warranties, issue Customer a
credit in an amount equal to the current monthly Service Fees pro rated by the
number of hours in which the Services have been interrupted. Kemteck may
provision the Services from any of its data centers and may from time to time
re-provision the Services from different data centers.
a.The foregoing warranties shall not apply to performance issues or
defects in the Services (i) caused by factors outside of Kemteck’s reasonable
control; (ii) that resulted from any actions or inactions of Customer or any
third parties; or (iii) that resulted from Customer’s equipment or any
third-party equipment not within the sole control of Kemteck.
b.EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, KEMTECK MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO
THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND KEMTECK HEREBY EXPRESSLY
DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE
PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR
WARRANTY WHATSOEVER. KEMTECK DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
10.Limitation of Liability.
.IN NO EVENT WILL KEMTECK’S LIABILITY IN CONNECTION WITH THE
SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY
FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE,
EXCEED THE AGGREGATE SERVICE FEES PAID TO KEMTECK BY CUSTOMER DURING THE
12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
a.KEMTECK CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY
PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED
VIA THE INTERNET. KEMTECK WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR
ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT
DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON
ITS SYSTEM.
b.EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE
IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR
REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE
GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE,
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE,
WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER,
ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY
ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 11 AND 12) FOR ANY CLAIM AGAINST THE
OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH CLAIM OR DAMAGES.
c.The limitations contained in this Section 10 apply to all
causes of action in the aggregate, whether based in contract, tort or any other
legal theory (including strict liability), other than claims based on fraud or
willful misconduct. The limitations contained in Section 10(c) shall not
apply to liability arising on account of a party’s breach of Section 13
or to Customer’s indemnification obligations under Section 11.
11.Indemnification of
Kemteck. Customer shall defend, indemnify and hold harmless Kemteck, its
affiliates and their respective present, former and future officers, directors,
employees and agents, and their respective heirs, legal representatives,
successors and assigns (collectively the “Kemteck Indemnitees”), from
and against any and all losses, damages, costs, liabilities and expenses
(including, without limitation, amounts paid in settlement and reasonable
attorneys’ fees) which any of the Kemteck Indemnitees may suffer, incur or
sustain resulting from or arising out of (i) Customer’s breach of any
representation, warranty, or covenant contained in the Agreement, (ii) the
Customer Content, the Customer Web site or any End User’s use of the Customer
Content or the Customer Web site, (iii) violation by Customer or any of its
officers, directors, employees or agents of the Acceptable Use Policy or any
applicable law, (iv) claims or actions of third parties alleging
misappropriation of trade secrets or infringement of patents, copyrights,
trademarks or other intellectual property rights arising from the use, display
or publication of Customer’s domain names, the Customer Web site, the Customer
Content, or the use of the Services in combination with hardware, software or
content not provided by Kemteck, (v) claims or actions by third parties
relating to or arising out of Customer’s use of the Services, and (vi) any
failure of the Customer Content or any aspect of the Customer Web site to be
compatible with the hardware or software used by Kemteck to provide the
Services, including any damage to Kemteck’s servers or other hardware caused
thereby.
12.Indemnification of
Customer.
.Subject to Section 10, Kemteck shall, at its own expense,
indemnify, defend and hold Customer harmless from any claim or suit alleging
that the Services infringe any United States patent, copyright or trademark
existing on the Effective Date, or that Kemteck has knowingly misappropriated
any trade secret or other intellectual property right of any other Person,
including any losses, damages or expenses arising from any such claim or suit.
Customer agrees to cooperate with and assist Kemteck in the defense or
settlement of any such claim or suit. Customer shall be reimbursed for all
reasonable out-of-pocket expenses incurred in providing any cooperation or
assistance requested by Kemteck, but Kemteck will not be liable for any costs or
expenses incurred without its prior written authorization.
a.Promptly after receipt by Customer of a threat of any claim or
suit, or a notice of the commencement or filing of any claim or suit, against
which Customer may be indemnified hereunder, Customer shall give written notice
thereof to Kemteck, provided that failure to give or delay in giving such
notice to Kemteck shall not relieve Kemteck of any liability it may have to
Customer hereunder, except to the extent that the defense of such claim or suit
is prejudiced thereby. Kemteck shall have sole control of the defense, and of
all negotiations for settlement, of such claim or suit. Subject to the
foregoing, Customer may participate in the defense of any such claim or suit at
Customer’s own expense.
b.If an injunction, decree or judgment is, or Kemteck believes in
its sole discretion is likely to be, entered providing that Customer may not
use the Services as contemplated in this Agreement without violating the
intellectual property rights of a third party, Kemteck may, at its sole option
and expense, either (i) procure for Customer the right to use the Services or
affected part thereof as provided in this Agreement; (ii) replace the Services
or affected part thereof with other non-infringing services or modify the
Services or affected part thereof so as to be non-infringing; or (iii)
terminate this Agreement upon written notice to Customer.
c.Notwithstanding Section 12(a), Kemteck assumes no liability
for infringement claims arising from (i) use of the Services with third-party
products or services where the third-party products or services cause the
infringement, (ii) any modification of the Services not authorized by Kemteck
in writing, (iii) the Customer Content, the Customer Web site or any content, data
or information provided or supplied by an End User, or (iv) Customer’s use of
any third-party software provided hereunder. THE FOREGOING DEFENSE AND
INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF
KEMTECK, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR
ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES
PROVIDED HEREUNDER.
13.Confidentiality;
Non-Solicitation.
.Each party will not, without the prior written consent of the
other party, use or disclose to any Person any Proprietary Information of the
other party disclosed or made available to it, except for use of such
Proprietary Information as required in connection with the performance of its
obligations or use of the Services hereunder. Subject to Section 13(b),
each party will (i) treat the Proprietary Information of the other party as
secret and confidential, (ii) limit access to the Proprietary Information of
the party to those of its employees who require it in order to effectuate the
purposes of this Agreement, and (iii) not disclose the Proprietary Information
of the other party to any other Person without the prior written consent of the
other party.
a.Notwithstanding Section 13(a), the following shall not be
considered Proprietary Information: (i) any information that the receiving
party can demonstrate by written documentation was within its legitimate
possession prior to the time of disclosure by the disclosing party; (ii) any
information that was in the public domain prior to disclosure by the disclosing
party as evidenced by documents that were published prior to such disclosure;
(iii) any information that, after disclosure by the disclosing party, comes
into the public domain through no fault of the receiving party, (iv) any
information that is disclosed to the receiving party without restriction by a
third party who has legitimate possession thereof and the legal right to make
such disclosure; or (v) any information that, two years after expiration or
termination of this Agreement, does not constitute a trade secret under
applicable law.
b.Each party acknowledges that disclosure of any aspect of the
Proprietary Information of the other party shall immediately give rise to
continuing irreparable injury to the other party inadequately compensable in
damages at law, and, without prejudice to any other remedy available to the
other party, shall entitle the other party to injunctive or other equitable
relief. Upon expiration or termination of this Agreement for any reason, each
party shall promptly return to the other party all Proprietary Information of
the other party (including all copies thereof) in its possession or control.
c.During the term of this Agreement and for two years following
expiration or termination of this Agreement, Customer will not, directly or
indirectly, solicit or recruit the services of any employee of Kemteck
performing services under this Agreement, while such employee is employed by
Kemteck and for a period of six months after such employee has left the
employment of Kemteck.
14.Optional Services. In connection with any
Optional Services:
.Customer must provide Kemteck with any information, login
identifications, passwords or other information or access to facilities that
Kemteck may reasonably require to provide the Optional Services Kemteck will
have no responsibility for any delays or increased costs or expenses associated
with Customer’s failure to provide any of such information. If Customer does
not provide any such information or access requested by Kemteck within fifteen
(15) days of Kemteck’s request therefor, Kemteck may terminate the Order and
retain any Service Fees paid.
a.If Customer requested that Kemteck perform the Optional Services
by a particular deadline or that Kemteck achieve some particular result or
outcome, Kemteck will use commercially reasonable best efforts to perform the
Services by any such deadline and achieve the result requested by Customer;
provided, however, that (i) Kemteck’s ability to perform the Services is
subject to Customer’s provision of information and access as provided above and
(ii) Kemteck has no liability or obligation to complete the Services by any
deadline or achieve any particular outcome or result
b.If Customer wishes to convey documents or files to Kemteck,
Customer should deliver to Kemteck a copy or duplicate of such documents or
files and not the original copy. Kemteck will not return to Customer any
documents or files conveyed to Kemteck.
c.Kemteck will have no liability or responsibility for any damage,
loss of data, loss of use or other loss occurring in connection with Kemteck’s
provision of Optional Services requested by Customer.
15.Miscellaneous.
.Independent Contractor. Kemteck and Customer are independent
contractors and nothing contained in this Agreement places Kemteck and Customer
in the relationship of principal and agent, master and servant, partners or
joint venturers. Neither party has, expressly or by implication, or may
represent itself as having, any authority to make contracts or enter into any
agreements in the name of the other party, or to obligate or bind the other
party in any manner whatsoever.
a.Governing Law; Jurisdiction. Any controversy or claim arising out of
or relating to this Agreement, the formation of this Agreement or the breach of
this Agreement, including any claim based upon arising from an alleged tort,
shall be governed by the substantive laws of the State of Georgia, except that
all arbitration and related proceedings conducted pursuant to Section 15(c)
below, including without limitation confirmation proceedings, shall be governed
by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. . The United Nations
Convention on Contracts for the International Sale of Goods does not apply to
this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT
IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 15(C) BELOW MUST BE
BROUGHT IN A GEORGIA STATE OR FEDERAL COURT LOCATED IN FULTON COUNTY, GEORGIA,
AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION
OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH
SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
b.Mandatory Arbitration. Notwithstanding Section 15(b) above, each party
agrees that any dispute between the parties arising out of this Agreement or in
any manner relating to the Services must be submitted by the parties to
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, as administered by Resolutions Resources Corp. of
Atlanta, Georgia (or such other recognized provider of arbitration services
agreed upon by both parties) before a single arbitrator, appointed in
accordance with such rules. Any such arbitrator must render a reasoned opinion
in writing only where the amount in dispute exceeds $100,000. Judgment upon the
award may be entered in any court having jurisdiction thereof. Any such
arbitration will be held in Atlanta, Georgia. Any action filed by either party
in any court in violation of this Section should be dismissed pursuant to this
Section.
c.Headings. The headings herein are for convenience only and are not part of
this Agreement.
d.Entire Agreement; Amendments. This Agreement, including documents
incorporated herein by reference, supersedes all prior discussions,
negotiations and agreements between the parties with respect to the subject
matter hereof, and this Agreement constitutes the sole and entire agreement
between the parties with respect to the matters covered hereby. In case of a
conflict between this Agreement and any purchase order, service order, work
order, confirmation, correspondence or other communication of Customer or
Kemteck, the terms and conditions of this Agreement shall control. No additional
terms or conditions relating to the subject matter of this Agreement shall be
effective unless approved in writing by any authorized representative of
Customer and Kemteck. This Agreement may not be modified or amended except by
another agreement in writing executed by the parties hereto; provided, however,
that these Terms of Service may be modified from time to time by Kemteck in its
sole discretion, which modifications will be effective upon posting to
Kemteck's web site.
e.Severability. All rights and restrictions contained in this Agreement may
be exercised and shall be applicable and binding only to the extent that they
do not violate any applicable laws and are intended to be limited to the extent
necessary so that they will not render this Agreement illegal, invalid or
unenforceable. If any provision or portion of any provision of this Agreement
shall be held to be illegal, invalid or unenforceable by a court of competent
jurisdiction, it is the intention of the parties that the remaining provisions
or portions thereof shall constitute their agreement with respect to the
subject matter hereof, and all such remaining provisions or portions thereof
shall remain in full force and effect.
f.Notices. All notices and demands required or contemplated hereunder by one
party to the other shall be in writing and shall be deemed to have been duly
made and given upon date of delivery if delivered in person or by an overnight
delivery or postal service, upon receipt if delivered by facsimile the receipt
of which is confirmed by the recipient, or upon the expiration of five days
after the date of posting if mailed by certified mail, postage prepaid, to the
addresses or facsimile numbers set forth below the parties’ signatures. Either
party may change its address or facsimile number for purposes of this Agreement
by notice in writing to the other party as provided herein. Kemteck may give
written notice to Customer via e-mail to the Customer’s e-mail address as
maintained in Kemteck’s billing records.
g.Waiver. No failure or delay by any party hereto to exercise any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy by any party preclude any other or
further exercise thereof or the exercise of any other right or remedy. No
express waiver or assent by any party hereto to any breach of or default in any
term or condition of this Agreement shall constitute a waiver of or an assent
to any succeeding breach of or default in the same or any other term or
condition hereof.
h.Assignment; Successors. Customer may not assign or transfer this
Agreement, or any of its rights or obligations hereunder, without the prior
written consent of Kemteck. Any attempted assignment in violation of the
foregoing provision shall be null and void and of no force or effect
whatsoever. Kemteck may assign its rights and obligations under this Agreement,
and may engage subcontractors or agents in performing its duties and exercising
its rights hereunder, without the consent of Customer. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
i.Limitation of Actions. No action, regardless of form, arising by
reason of or in connection with this Agreement may be brought by either party
more than two years after the cause of action has arisen.
j.Counterparts. If this Agreement is signed manually, it may be executed in
any number of counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument. If this Agreement
is signed electronically, Kemteck’s records of such execution shall be presumed
accurate unless proven otherwise.
k.Force Majeure. Neither party is liable for any default or delay in the
performance of any of its obligations under this Agreement (other than failure
to make payments when due) if such default or delay is caused, directly or
indirectly, by forces beyond such party’s reasonable control, including,
without limitation, fire, flood, acts of God, labor disputes, accidents, acts
of war or terrorism, interruptions of transportation or communications, supply
shortages or the failure of any third party to perform any commitment relative
to the production or delivery of any equipment or material required for such
party to perform its obligations hereunder.
l.No Third-Party Beneficiaries. Except as otherwise expressly provided in
this Agreement, nothing in this Agreement is intended, nor shall anything
herein be construed to confer any rights, legal or equitable, in any Person
other than the parties hereto and their respective successors and permitted
assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that
Microsoft, and any supplier of third-party supplier that is identified as a
third-party beneficiary in the Service Description, is an intended third-party
beneficiary of the provisions set forth in this Agreement as they relate
specifically to its products or services and shall have the right to enforce directly
the terms and conditions of this Agreement with respect to its products or
services against Customer as if it were a party to this Agreement.
m.Government Regulations. Customer may not export, re-export, transfer or
make available, whether directly or indirectly, any regulated item or
information to anyone outside the United States in connection with this
Agreement without first complying with all export control laws and regulations
which may be imposed by the United States government and any country or
organization of nations within whose jurisdiction Customer operates or does
business.
n.Marketing. Customer agrees that during the term of this Agreement
Kemteck may publicly refer to Customer, orally and in writing, as a customer of
Kemteck. Any other public reference to Customer by Kemteck requires the written
consent of Customer.
o.Telephone Monitoring. To ensure Kemteck’s customers receive quality
service, Kemteck randomly selects phone calls for monitoring. These calls,
between Kemteck’s customers and employees, are evaluated by supervisors. This
is to guarantee that prompt, consistent assistance and accurate information is
delivered in a professional manner. Kemteck has been properly licensed by the
Georgia Public Service Commission to use such service observing equipment.
16.Definitions. For purposes of this
Agreement, the following terms have the meanings specified below:
.“Agreement” means each contract created between Kemteck and Customer
for the provision of Services consisting of an Order, the applicable Service
Description and these Terms of Service.
a.“Customer Content” means all data, graphics, text, names, marks,
logos, hypertext links to other Web sites and other information incorporated
in, transmitted through or published or displayed on the Customer Web site.
b.“Customer Web site” means Customer’s site on the World Wide Web
portion of the Internet that Kemteck hosts under this Agreement.
c.“End User” means any Person who accesses or uses the Customer Web site
via the Internet.
d.“Kemteck Technology” means Kemteck’s proprietary technology,
including, without limitation, Kemteck services, software tools, hardware
designs, algorithms, software (in source code and object code forms), user
interface designs, architecture, class libraries, objects and documentation
(both printed and electronic), network designs, know-how, trade secrets and any
related intellectual property rights throughout the world (whether owned by
Kemteck or licensed to Kemteck from a third party), and also including any
derivatives, improvements, enhancements, updates, modifications or extensions
of Kemteck Technology conceived, reduced to practice or developed during the
term of this Agreement by either party.
e.“Person” means any individual, partnership, joint venture, corporation, limited
liability company, trust, unincorporated association or organization, or
government or any agency or political subdivision thereof.
f.“Proprietary Information” means all technical, business and other
information of a party (i) that is not generally known to the public, (ii) that
derives value, economic or otherwise, from not being generally known to the
public or to other Persons who can obtain value from its disclosure or use, and
(iii) which information is subject to efforts that are reasonable under the
circumstances to maintain the secrecy thereof.
g.“Order” means the Order submitted by the Customer to Kemteck for
Services, whether such Order is submitted online through Kemteck’s Web site or
on a written Order form.
h.“Prepaid Plan” means Hosting Service provided by Kemteck to Customer where
the Order provides that the Customer must pay for the Hosting Service in
advance for the Initial Term. “Non-Prepaid Plan” means any Hosting Service
provided by Kemteck to Customer that is not a Prepaid Plan.
i.“Termination Charge” means, with respect to Non-Prepaid Customers
only, as of any date of calculation, an amount equal to one hundred percent
(100%) of the fees that would become due over the balance of the then-current
Term.
j.“Terms of Service” means these Terms of Service, as the same may
be modified, altered or amended from time to time by Kemteck.
k.“Service” means either Hosting Service or Optional Service. “Hosting
Service” means the Service provided by Kemteck in response to an Order whereby
Kemteck provides the Customer with specified connectivity, storage space and
bandwith for the hosting of a Customer Web site as more particularly described
in the applicable Service Description. “Optional Service” means any
additional Service (other than Hosting Service) Kemteck may provide in response
to an Order, as more particularly described in the applicable Service
Description.
l.“Service Description” means the applicable documents made available
by Kemteck to Customer to describe the applicable Services at the time the
Order is accepted by Kemteck.
m.“Term” means the duration of any Agreement between Kemteck and Customer.
With respect to Hosting Services, the “Initial Term” is the initial term
specified in the Order and the Term continues beyond the Initial Term for any
renewal period as specified in Section 3. . With respect to Optional Services,
the “Term” begins when Kemteck accepts the Order and ends on the first
to occur of (i) Kemteck’s completion of performance, or (ii) the earlier
termination of the Order in any manner permitted by these Terms of Service.
