Please read this agreement in its entirety. All users of our service will be bound by this agreement.
This User Agreement (the "Agreement") governs the terms of the use by Client of services offered by Netberry Technologies ("Provider").
Client agrees to receive access to the Netberry Technologies. Hosting services according to the following terms and conditions:
- Payment for Services. Client will pay for services provided under this Agreement by credit card authorization provided to Provider. When initiating service, Client agrees to our Refund Policy, and will be charged the published setup fee for the service plan selected. On or about the first day of every month thereafter, Client's credit card will be charged for monthly payment for services according to Provider's published schedule. An email notice will be sent to the address provided upon sign up prior to each billing cycle. Hosting services that are terminated will not receive a credit, refund or be prorated.
- Term. This Agreement may be terminated by Client or Provider at any time without prior notice and without cause. If either party is in default under this Agreement (including nonpayment), then the non-defaulting party may also immediately terminate the Agreement without prior notice to the other party. Reactivation requested by the defaulting party of this Agreement after nonpayment termination will be charged $100 reactivation fee. Notices to Client may be made via either email or regular mail. Notices to Provider must be made in writing via e-mail or fax. Any e-mail received must be from the primary contact on the account identified by the last four (4) digits of the credit card used for payment. Notifications via fax must include the printed and completed contents of our cancellation form. Provider may also provide notices of changes to this Agreement or other matters by displaying notices or links to notices to Client generally on our web site.
- Compliance with Law. Client will use the services offered by Provider in a manner consistent with all applicable local, state and federal laws and regulations.
- File Back-up. Provider is not responsible for Client's files residing on Provider's servers. Client is solely responsible for independent backup of data stored on Provider's servers.
- Prohibition of Publication of Certain Material. Client shall not knowingly or unknowingly submit to Provider for publication any of the following material (including pictures, links, or any other content):
- any material which violates or infringes any copyright, trademark, trade secret, patent, statutory, common law or other proprietary rights of others;
- any material that is libelous or slanderous;
- any material which is or contains anything obscene or pornographic;
- distribution lists to be used via unsolicited electronic mail or other mass electronic mailings; or
- any material not suitable for children.
Due to the public nature of the Internet, all material submitted by Client for publication will be considered publicly accessible. Provider does not screen in advance Client's material submitted to Provider for publication. Provider's publication of material submitted by Client does not create any express or implied approval by Provider of such material, nor does it indicate that such material complies with the terms of this Agreement.
- Disclaimer of warranties. Provider's service is provided on an "as is, as available" basis. Provider specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose. In no event shall provider be liable for any consequential, indirect, special or incidental damages, even if provider has been advised by client of the possibility of such potential loss or damage. If provider's service to client is disrupted or malfunctions for any reason, provider shall not be responsible for losses of income due to disruption of service, beyond the fees paid by client to provider for services, during the period of disruption of malfunction.
- Limitation/Disclaimer of Liability. Provider is not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider or its customers may utilize.
Provider does not represent or warrant to Client that Client will receive continual and uninterrupted service during the term of this Agreement. In no event shall Provider be liable to Client for any damages resulting from or related to any failure or delay of Provider to provide service under this Agreement if such delays or failures are due to strikes, riots, fire, inclement weather, acts of God, theft or vandalism or other causes beyond Provider's control, as defined by standard practices in the industry. Such failure or delay shall not constitute a default under this Agreement.
- Indemnity. Client agrees to defend, indemnify and hold Provider harmless from and against any and all claims, losses, liabilities and expenses (including attorneys' fees) related to or arising out of the services provided by Provider to Client under this Agreement, including without limitation claims made by third parties (including customers of Client) related to any false advertising claims, liability claims for products or services sold by Client, claims for patent, copyright or trademark infringement, claims due to disruption or malfunction of services provided hereunder, PCI DSS requirements, or for any content submitted by Client for publication by Provider, but excluding those related to the gross negligence of Provider.
- Resale of Provider's Service. If Client acts as a "reseller" of the services provided by Provider to Client hereunder, by Client providing similar services to its customers, then all the terms of this Agreement shall provide to the resale. Without limiting the foregoing, Client's obligations under Section 9 ("Indemnity") shall apply to any and all claims made against Client and/or Provider which arise out of the resale of Provider's services.
- Governing Law/Venue. This Agreement shall be governed by the laws of the State of Missouri. Venue for any action hereunder shall be in Greene County, Missouri.
- Relationship of the Parties. The parties intend that an independent contractor relationship will be created by this contract, and that no partnership, joint venture or employee/employer relationship is intended.
- Taxes. If any federal, state or local governmental entity with taxing authority over the services provided under this Agreement imposes a tax directly on the services provided by Provider to Client under this Agreement (excluding any income, business and occupation, capital gain, death or inheritance, or other indirect taxes), then Provider may pass the direct amount of such cost on to Client, and Client shall promptly pay such cost.
- Waiver. Any party's failure to insist on compliance or enforcement of any provision of this Agreement shall not affect its validity or enforceability or constitute a waiver of future enforcement of that provision or of any other provision of this Agreement.
- Attorneys' Fees. If a legal proceeding is commenced to enforce or obtain a declaration of rights under this Agreement, the provider will not be responsible for any attorneys' fees and costs incurred. The client will be responsible for any and all attorneys' fees and costs incurred by the Provider or the Client.
- IP Addresses. Provider maintains control and any ownership of any and all IP numbers and addresses that may be assigned to Client and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses.
