1. Use of Services
1.1 Applicable Policies and Guidelines.
The BCC Hosting Terms of Service Premium Solutions (the "TERMS OF SERVICE") govern the general policies and procedures for use of the Dedicated Services. BCC's On-line Privacy Statement governs how BCC collects, stores, processes and uses information associated with Customer's use of the Services. The Terms of Service and the On-line Privacy Statement are posted on BCC's Web site at www.brinkster.com (or such other location as BCC may specify) and may be updated from time-to-time. THE CUSTOMER SHOULD CAREFULLY READ THE TERMS OF SERVICE. BY USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND ANY MODIFICATIONS TO THE TERMS. BCC MAY TERMINATE CUSTOMER'S ACCOUNT FOR ANY VIOLATION OF THE TERMS OF SERVICE OR THE DEDICATED HOSTING GUIDELINES.
1.2 Material and Product Requirements.
Customer must ensure that all material and data placed on BCC's equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by BCC. BCC will make no effort to validate any of this information for content, correctness or usability. If Customer's material is not "server-ready", BCC may reject this material. BCC will notify Customer of its refusal of the material and afford Customer the opportunity to modify the material to satisfy BCC's requirements. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of Customer's Web site. Customer must have the necessary knowledge to create and maintain a Web site. BCC does not provide this knowledge or customer support outside of the Services.
1.3 Bandwidth, Storage, and E-Mail Usage.
Customer will not exceed the bandwidth, storage and E-mail usage limits in its contract with BCC. If Customer uses any bandwidth or storage space in excess of the agreed upon number of megabytes per month or if Customer exceeds E-Mail storage and attachment size limitations, BCC may, in its sole discretion, assess Customer with additional charges, suspend the Service, or terminate their account. If BCC elects to take any corrective action, BCC will not refund any unused pre-paid fees. The Customer's use of its account and access to it is Customer's responsibility. The Customer is responsible for any unauthorized access to Customer's account resulting in bandwidth, storage and/or E-mail usage exceeding the limits in Exhibit "A" and resultant charges.
1.4 Domain Names.
As part of the Services, Customer will provide BCC with a registered domain name or names, or BCC will register domain name(s) Customer selects if the domain name is available for registration and does not violate any Network Solutions' or other registration services' policies, or any law or regulation. Customer will promptly reimburse BCC for any fees BCC pays to Network Solutions or other registration services for registering and maintaining the domain name(s). If any dispute or cause of action arises out of or is related to Customer's domain name used in connection with the Services, then upon Customer's request, BCC will attempt to register with Network Solutions or other registrar an alternative domain name Customer chooses. Upon registering Customer's domain name, Customer is bound by the terms of Network Solutions' or other registrar's then current domain name policy and the policies of the national DNS registration authorities. BCC will not refund any fees Customer paid with respect to the registration of a domain name the Customer is unable to use.
Customer is solely responsible for any security breaches affecting servers or accounts under Customer's control. If Customer's server or website is responsible for or involved in an attack on or unauthorized access into another server or system, BCC will shut it down immediately. Customer will pay any charges resulting from the cost to correct security breaches affecting BCC or any of its other customers.
1.6 Commercial Advertisements via E-Mail.
Customer will not use BCC services, Customer's account or server to send or facilitate in any way the transmission of unsolicited commercial email. BCC will enforce substantial penalties, including charging Customer for related network costs and terminating Customer's account, for violations.
2. Intellectual Property Rights
2.1 Customer's License Grant to BCC.
By activating their service Customer grants to BCC a non-exclusive, worldwide, and royalty-free license for the Initial Term and the Renewal Term, if applicable, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Customer's content as necessary for the purposes of rendering and operating the Services to Customer under these Guidelines. Customer expressly: (a) grant to BCC a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that this caching is not an infringement of any of Customer's intellectual property rights or any third party's intellectual property rights.
2.2 Customer's Warranties And Representations to BCC.
Customer warrants, represents, and covenants to BCC that: (a) Customer or its representative is at least 18 years of age; (b) Customer possesses the legal right and ability to enter into a contract with BCC; (c) Customer will use the Services only for lawful purposes and in accordance with these Guidelines and all applicable policies; (d) Customer will be financially responsible for the use of Customer's account; (e) Customer has acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) Customer has verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including Customer's content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) Customer's content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
2.3 BCC Materials And Intellectual Property.
All materials, including any computer software (in object code and source code form), data or information that BCC or its suppliers or agents develop or provide under to Customer, and any know-how, methodologies, equipment, or processes BCC uses to provide the Services to Customer, including all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto will remain BCC's or its suppliers' sole and exclusive property. BCC will also maintain and control ownership of all Internet protocol ("IP") numbers and addresses that BCC may assign to Customer. BCC may, in its sole discretion, change or remove any and all IP numbers and addresses.
3.1 Investigation of Violations.
BCC may investigate any reported violation of these Guidelines, or its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers or third parties. BCC will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.
BCC may restrict or remove from its servers any content that violates the Dedicated Server Guidelines or related policies, or is otherwise objectionable or potentially infringing on any third party's rights or that potentially violates any laws. If BCC becomes aware that Customer has possibly violated these Guidelines, any related policies or guidelines, third party rights or laws, BCC may immediately take corrective action, including: (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on BCC's systems, and (d) disabling or removing any hypertext links to third-party Web sites, any of Customer's content distributed or made available for distribution via the Services, or other content not supplied by BCC that, in BCC's sole discretion, may violate or infringe any law or third-party rights or that otherwise exposes or potentially exposes BCC to civil or criminal liability or public ridicule. It is BCC's policy to terminate repeat infringers. These rights of action, however, do not obligate BCC to monitor or exert editorial control over the information made available for distribution via the Services. If BCC takes corrective action because of a possible violation, BCC will not refund to Customer any fees Customer paid in advance of the corrective action.
3.3 Disclosure Rights.
To comply with applicable laws and lawful governmental requests, to protect BCC's systems and customers, or to ensure the integrity and operation of BCC's business and systems, BCC may access and disclose any information it considers necessary or appropriate, including, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on BCC's servers and systems. BCC may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. To the extent any inconsistency exists between any terms of BCC's On-line Privacy Statement and BCC's right to disclose under this section, BCC's right to disclose under this section will control.
4. Disclaimed Warranties.
BCC exercises no control over, and accepts no responsibility for, the content of the information passing through BCC's host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED UNDER CONTRACT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THE CUSTOMER'S CONTRACT, BCC DOES NOT MAKE AND DISCLAIMS, AND CUSTOMER WAIVES ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
5. Limitation and Exclusion of Liability.
IN NO EVENT WILL BCC OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER BCC NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO BCC'S OBLIGATIONS UNDER THEIR CONTRACT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF BCC HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF BCC AND ITS SUPPLIERS TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAID TO BCC UNDER THEIR CONTRACTDURING THE 3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY BCC UNDER THEIR CONTRACT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, CUSTOMER RELEASES BCC AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION.
5.2 Interruption of Service.
BCC and its suppliers are not liable for any temporary delay, outages or interruptions of the Services except as provided in BCC's Service Level Agreement listed on the website at http://www.brinkster.com. Further, BCC is not liable for any delay or failure to perform its obligations under the Customer's contract, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, labor disputes, governmental actions, terrorist actions, communications or third-party supplier failure).
Customer releases and holds harmless, and agrees to indemnify, BCC and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by BCC or its suppliers, arising out of or relating to: (a) Customer's violation or breach of any term, condition, representation or warranty of their Contract, or any applicable policy or guideline; (b) Customer's improper or illegal use the Services; or (c) Customer's violation, alleged violation, or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including defamation, libel, violation of privacy or publicity).