Terms & Conditions
Service Level Agreement (SLA)
CUSTOMER HEREBY REPRESENTS AND WARRANTS THAT IT HAS READ, UNDERSTOOD AND ACCEPTED THE TERMS OF THE SLA AND AUP.
The Customer hereby agrees to the following:
99.5% 319 InSight’s Network Availability Assurance:
319 InSight assures each Customer 99.5% uptime availability of 319 InSight’s Network and all redundant internet connectivity, including all associated network services (i.e. bandwidth, routers, switches, and cabling,) covered by this SLA. In the event that 319 InSight fails to provide Customer with the products and services purchased by Customer in accordance with the Customer Agreement and such failure results from the unavailability of 319 InSight’s Network or any redundant internet connectivity, including all associated network services covered by this SLA (other than as specified below, each such event, a “Qualified Downtime Event”), 319 InSight will issue Customer a Service Credit (as defined below) calculated as follows:
In the case of services and products associated with 319 InSight’s Managed Servers line of products and services, upon the passage of sixty (60) continuous minutes of a Qualified Downtime Event, the Service Credit shall equal three and one half percent (3.5%) of the monthly fees payable by Customer in respect of such products and services for the month in which such Qualified Downtime Event occurred and thereafter during the pendency of such unavailability, the Service Credit shall increase by an additional three and one half percent (3.5%) for each continuous sixty (60) minutes of Qualified Downtime Event up to a maximum of one hundred percent (100%) of monthly fees payable by Customer in respect of such products and services for the month in which such Qualified Downtime Event occurred.
All Service Credits are calculated by 319 InSight on a “per-event-basis” each calendar month and in no event will downtime or unavailability be cumulated during any monthly period for purposes of determining a Customer’s right to any Service Credit. The following events do not constitute a Qualified Downtime Event or qualify for any Service Credit under this SLA: (i) Scheduled Maintenance (as defined below) or (ii) Customer generated outages created by loading specific software onto website that loads traffic in excess of the maximum allowed by contract. Service Credits are based directly monthly hosting and usage fees. Redundant Internet connectivity is measured as traffic routing into and out of a Customer’s equipment through 319 InSight’s Network out to internet backbone carriers and does not include third party carrier latency or peering issues not utilized by 319 InSight.
“Service Credits” are hereby defined as a a credit, calculated in accordance with this SLA, issued by 319 InSight to the Customer in respect of products and services contracted for, but not delivered by 319 InSight in accordance with the Customer Agreement due to a Qualified Downtime Event. Service Credits do not constitute a refund in respect of any product or service and may not be paid for or exchanged for cash or other monetary consideration or value. Service Credits are not available (i) to any Customer that is more than thirty (30) days past due on any amount owing to 319 InSight or any Customer that has breached the Customer Agreement or (ii) in respect of any products or services contracted for with 319 InSight’s Performance hosting line of products and services. Valid approved Service Credits will appear as a credit for products and services and be applied against the amounts owing in respect of such products and services on the next billable invoice following the month in which occurred the Qualified Downtime Event giving rise to such Service Credit. In order for a Customer to qualify for a Service Credit, the Customer must (A) have purchased and paid for either 319 InSight’s Managed Solutions line of and submit a request for a Service Credit in writing via e-mail to email@example.com within ten (10) days from the date of event giving rise the requested Service Credit. Failure to request a Service Credit in accordance with the terms of this SLA will result in an automatic waiver of any rights to such Service Credit under this SLA in respect of the event giving rise to such Service Credit.
Customer hereby acknowledges that 319 InSight may, from time to time, perform maintenance service on 319 InSight’s Network, with or without notice to Customer, which may result in the unavailability of 319 InSight’s Network. Downtime or unavailability resulting from Scheduled Maintenance shall not constitute a Qualified Downtime Event or qualify for any Service Credit. Scheduled Maintenance means all such maintenance services for which 319 InSight gives Customer at least five (5) days prior notice. Emergency maintenance and maintenance for which 319 InSight has not given Customer notice in accordance with this SLA shall not be deemed Scheduled Maintenance for purposes of this SLA.
Acceptable Use Policy (AUP)
The Acceptable Use Policy (as amended, modified or supplemented from time to time as set forth on 319 InSight’s website, this “AUP”) of 319 InSight, Inc. is designed to (i) protect 319 InSight’s customers, users of, Products and Service, 319 InSight’s Hosting and Data Network and physical infrastructure and third parties, (ii) further compliance with all relevant laws and regulations, (iii) promote the security and availability of 319 InSight’s Hosting and Data Network and physical infrastructure and (iv) regulate and restrict the use of all products and services (including, but not limited to the Products and Services) provided by 319 InSight, its website, 319 InSight’s Hosting and Data and its physical infrastructure.
CUSTOMER HEREBY REPRESENTS AND WARRANTS THAT IT HAS READ, UNDERSTOOD AND ACCEPTED THE TERMS OF THE TERMS OF SERVICE, THE SLA AND THIS AUP. 319 InSight reserves the right to amend or modify this AUP from time to time, and a User’s use of 319 InSight’s services and Hosting and Data Services, 319 InSight’s network and physical infrastructure after changes to the AUP are posted on the legal department page of 319 InSight’s website (www.319insight.com) will constitute the User’s acceptance of any such amendments or modifications. 319 InSight is responsible to notify the customer of changes in writing prior to the changes being posted.
Customers are responsible for complying with this AUP and for violations attributable to their customers and users, whether authorized or not by a Customer or 319 InSight. Customers must take all reasonable steps to ensure that their customers and users will comply with this AUP. This AUP does not (a) obligate 319 InSight to monitor, review, or police the data and content residing on 319 InSight’s Network or (b) create any obligation or duty of 319 InSight to any party that is not a Customer, including, but not limited to, any Third Party User. Unless and until notified, 319 InSight is not likely to be aware of any violations of this AUP or any violations of law. 319 InSight expects all Users to notify us of any violations of law or violations of this AUP. 319 InSight EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE DATA AND CONTENT TRANSMITTED THROUGH OR INTERMEDIATELY, TEMPORARILY OR PERMANENTLY STORED ON 319 InSight’s NETWORK OR ANY SERVER AND FOR THE ACTIONS OR OMISSION OF USERS.
Users shall not allow the posting, transmission, or storage of data or content on or through 319 InSight’s Services, 319 InSight’s Network or its physical infrastructure which, in 319 InSight’s sole determination, constitutes a violation of any federal, state, local or international law, regulation, ordinance, court order or other legal process (“Applicable Law”). Users shall be responsible for determining which Applicable Laws are applicable to their use of 319 InSight’s Services. Prohibited content includes, without limitation, (a) content or code that facilitate any violation of, or describe ways to violate, this AUP or (b) “harvested” addresses or information, (c) “phishing” websites, or (d) “spamvertising” sites.
A User shall not knowingly host on its Servers, use 319 InSight’s Services or transmit over 319 InSight’s Network, any material believed by 319 InSight to constitute child pornography. In addition to any other actions it may take under this AUP, 319 InSight reserves the right to cooperate fully with any criminal investigation of content located on a Server that constitutes alleged child pornography or an alleged violation of Applicable Law.
Users’ Security Obligation:
Users must use reasonable care to ensure the security regarding access to each Server, 319 InSight’s Network and its physical infrastructure. A Customer is solely responsible for any intrusions into, or security breaches of, any of its Servers, except as otherwise covered by a specifically designated security administration or firewall security service package ordered by the Customer. 319 InSight reserves the right to disconnect without refund or the provision of service credit any Servers which disrupt 319 InSight’s Network or any hardware objects on the network as a result of a security compromise.
Users are prohibited from engaging in any activities that 319 InSight determines, in its sole discretion, to constitute network abuse, including, but not limited to, the following:
- Introducing or executing malicious programs into any network or server, such as viruses, worms, Trojan Horses, and key loggers.
- Causing or initiating security breaches or disruptions of network communication and/or connectivity, including port scans, flood pings, email-bombing, packet spoofing, IP spoofing, and forged routing information.
- Executing any form of network activity that will intercept data not intended for the Customer’s server.
- Evading or circumventing user authentication or security of any host, network or account, including cracking, brute-force, or dictionary attacks.
- Interfering with or denying service to any user, host, or network other than the Customer’s host, such as a denial of service attack or distributed denial of service attack.
- Conduct designed to avoid restrictions or access limits to specific services, hosts, or networks, including the forging of packet headers or other identification information.
- Soliciting the performance of any illegal activity, even if the activity is not performed.
- Using any program, or sending messages of any kind, designed to interfere with or disable a user’s terminal session.
For your convenience, you may click on Prohibited Activities to review a list of additional prohibited activities and examples of prohibited activities. All Users are encouraged to review this list to ensure compliance with this AUP. If you believe that a violation of this AUP has occurred please review the information at the Legal section which contains important information concerning the reporting of potential violations.
Intellectual Property Infringement Policy:
Users may not transmit, distribute, download, copy, cache, host, or otherwise store on a Server, 319 InSight’s Network or its physical infrastructure any information, data, material, or work that infringes the intellectual property rights of others or violates any trade secret right of any other person. 319 InSight has the right to disable access to, or remove, infringing content to the extent required under any law or regulation, including the Digital Millennium Copyright Act of 1998. For your convenience, information concerning procedures for making claims of copyright infringement for purposes of Title 17, Section 512, of the United States Code is contained at the Legal section of our website.
If any Customer or any Third Party User, including those that are customers of our Customers, repeatedly violates 319 InSight’s Intellectual Property Infringement Policy, any copyright law or any other intellectual property right, 319 InSight reserves the right to (i) suspend permanently or terminate 319 InSight’s Services of such Customer and/or (ii) suspend permanently or terminate the access to 319 InSight’s Services, 319 InSight’s Network or its physical infrastructure by such Third Party User.
E-Mail and Anti-Spamming Policy:
Users may not send unsolicited bulk messages over the Internet (i.e., “spamming”) and must comply with all relevant legislation and regulations on bulk and commercial e-mail, including the CAN-SPAM Act of 2003.
Mass Mailings: Users may not send mass unsolicited e-mail, which is email that is sent to recipients who have not Confirmed Opt-In or Closed-Loop Opt-In in to mailings from the User. Users who send mass mailings must maintain complete and accurate records of all consents and opt-ins and provide such records to 319 InSight upon its request. If a User cannot provide positive and verifiable proof of such consents and opt-ins, 319 InSight will consider the mass mailing to be unsolicited.
Mailing Lists: Users are prohibited from operating mailing lists, listservs, or mailing services that do not target an audience that has voluntarily signed up for e-mail information using a Confirmed Opt-In or Closed-Loop Opt-In process or that has made their e-mail addresses available to a User for distribution of information. Users who operate mailing lists must maintain complete and accurate records of all consents and Confirmed Opt-In or Closed-Loop Opt-In elections and provide such records to 319 InSight upon its request. If a User cannot provide positive and verifiable proof of such consents and Confirmed Opt-In or Closed-Loop Opt-In elections, 319 InSight will consider the list mailing to be unsolicited. Any User-maintained mailing list must also allow any party on the list to remove itself automatically and permanently.
Other prohibited activities include, without limitation, the following:
- Use of 319 InSight’s Network for the receipt of replies to unsolicited mass e-mail.
- Forgery of e-mail headers (“spoofing”).
- Spamming via third-party proxy, aggregation of proxy lists, or installation of proxy mailing software.
- Configuration of a mail server to accept and process third-party messages for sending without user identification and authentication.
- Hosting web pages advertised within “spam e-mail” sent from another network (“spamvertising”).
- Hosting web pages or providing services that support spam.
Any other unsolicited bulk messages, postings, or transmissions through media such as weblog posts, IRC/chat room messages, guestbook entries, HTTP referrer log entries, usenet posts, pop-up messages, instant
messages, or SMS messages.
Instructing others in any activity prohibited by this AUP.
If any Customer or any Third Party User that is a customer of our Customer uses 319 InSight’s Services, 319 InSight’s Network or its physical infrastructure in a manner that causes 319 InSight to be “blacklisted” or blocked, 319 InSight reserves the right to (i) suspend permanently or terminate 319 InSight’s Services of such Customer and/or (ii) suspend permanently or terminate the access to 319 InSight’s Services, 319 InSight’s Network or its physical infrastructure by such Third Party User. Operating 319 InSight’s Service on behalf of, or in connection with, or reselling any service to persons or firms listed in the Spamhaus Register of Known Spam Operations database at www.spamhaus.org shall constitute a violation of this AUP.
Block Removal: If, as a result of a Customer’s actions, 319 InSight’s mail servers or IP address ranges are placed on black hole lists or other mail filtering software systems, 319 InSight shall charge Customer $100 upfront and $100 per hour thereafter for any necessary remedial actions.
Customers may not operate and maintain IRC servers which connect to global IRC networks such as Undernet, EFnet and DALnet. Use of IRC plug-ins, scripts, add-ons, clones or other software designed to disrupt or deny service to other users is prohibited. Harassing or abusive IRC activity is expressly prohibited under the AUP, including (i) disruption or denial of service or (ii) the use or joining of “botnets” or the use of IRC BNC’s or other proxy and re-direction software. If a Customer’s IRC servers are frequently compromised or attract denial of service or distributed denial of service attacks that disrupt or denies service to other Customers or users, 319 InSight may null-route, filter, suspend, or terminate that Customer’s service.
Usenet Policy: Usenet posts and content must conform to standards established by the Internet community and the applicable newsgroup charter. 319 InSight reserves the right to determine whether such posts violate the AUP.
Legal Investigations: Users will cooperate and comply with any civil or criminal investigation regarding use of 319 InSight’s Services, 319 InSight’s Network or its physical infrastructure or content located on its Servers or transmitted using 319 InSight’s Services, 319 InSight’s Network or its physical infrastructure, including, without limitation, the following: discovery orders, subpoenas, freeze orders, search warrants, information requests, wire taps, electronic intercepts and surveillance, preservation requests, and any other order from a court, government entity or regulatory agency (each an “Investigation”). 319 InSight’s may charge a User or any person seeking compliance with an Investigation for the reasonable costs and expenses associated with 319 InSight’s compliance with any Investigation. 319 InSight reserves the right to comply with any Investigation without notice to a User. Customers shall not be entitled to a refund or any service credits, and 319 InSight shall not be in default under any agreement for 319 InSight’s Services, if its compliance with any Investigation causes a User to incur downtime or requires the sequestering of all or a portion of the Servers. 319 InSight also reserves the right to disclose information relating to Users and their use of 319 InSight’s Services, 319 InSight’s Network or its physical infrastructure or information transmitted, owned by or stored by or on behalf of any User, if such information is disclosed in connection with an Investigation by any Regulator or Recognized legal authority having jurisdiction over the Users (i.e. The Securities and Exchange Commission, Financial Industry Regulatory Agency, etc.) or in order to prevent the death of or bodily harm to any individual, as determined by 319 InSight in its sole discretion.
Violations of AUP: 319 InSight may enforce this AUP, with or without notice to a User, by any action it deems reasonable, in its sole discretion. In addition to the remedial provisions provided elsewhere in this AUP, 319 InSight may:
- Disable access to a User’s content that violates this AUP.
- Suspend or Terminate a User’s access to 319 InSight’s Services, 319 InSight’s Network or its physical infrastructure.
- Remove DNS records from Servers.
- Block mail or any other network service.
- Effect IP address null routing.
- Take legal action against a User to enforce compliance with this AUP.
If there is a violation of this AUP direct the information to the Abuse Department at firstname.lastname@example.org. If available, please provide the following information:
- The IP address used to commit the alleged violation.
- The date and time of the alleged violation, including the time zone or offset from GMT.
- Evidence of the alleged violation.
- E-Mail with full header information provides all of the above, as do system log files.
Other situations will require different methods of providing the above information. 319 InSight may take any one or more of the following actions in response to complaints:
- Issue written or verbal warnings.
- Suspend the User’s newsgroup posting privileges.
- Suspend the User’s account.
- Terminate the User’s account.
- Bill the User for administrative costs and/or reactivation charges.
- Bring legal action to enjoin violations and/or to collect damages, if any, cause by violations.
If any User uses 319 InSight’s Services, 319 InSight’s Network or its physical infrastructure in a manner that exposes 319 InSight to potential liability, as reasonably determined by 319 InSight, 319 InSight may suspend permanently or terminate the access to 319 InSight’s Services, 319 InSight’s Network or its physical infrastructure by such User.
The remedial actions set forth in this AUP shall not be construed in any way to limit the actions or remedies that 319 InSight may take to enforce and ensure compliance with this AUP. 319 InSight reserves the right to recover any and all expenses, and apply any reasonable charges, in connection with a User’s violation of this AUP. No refund or service credits will be issued for any interruption in service resulting from violations of this AUP. 319 InSight reserves the right at all times to investigate any actual, suspected, or alleged violations of this AUP, with such investigation to include accessing of data and records on, or associated with, any Server, 319 InSight’s Network or its physical infrastructure.
- Forging, misrepresenting, omitting or deleting message headers, return mailing information, or internet protocol addresses, to conceal or misidentify the origin of a message
- Creating or sending Internet viruses, worms or Trojan horses, flood or mail bombs, or engaging in denial of service attacks
- Hacking, and/or subverting, or assisting others in subverting, the security or integrity of our products or systems
- Soliciting the performance of any illegal activity, even if the activity itself is not performed
- Threatening bodily harm, or encouraging bodily harm or property destruction
- Harassing another, or encouraging harassing behavior
- Engaging in outright fraud, or using services to engage in scams like pyramid schemes
- Collecting personal information about others without their knowledge or consent
- Instructing others in prohibited activities
- Using services to disseminate or display images classified under U.S. law as child pornography, child erotica (regardless of literary or artistic merit) and/or bestiality; and/or acting in any manner that might subject 319 InSight to unfavorable regulatory action, subject us to any liability for any reason, or adversely affect 319 InSight’s public image, reputation or goodwill, as determined by us in our sole and exclusive discretion
Terms of Service
By submitting an Order Form online or by using 319 InSight’s website, 319 InSight’s Network (as defined in the SLA), products or services, Customer hereby agrees to the terms and conditions of the Agreement.
Services and Monthly Commitments:
319 InSight agrees to provide the Products and Services in accordance with the terms and conditions of this Agreement beginning on the Effective Date. 319 InSight may perform additional technical, supplemental, or professional services (other than the Products and Services) for Customer at either 319 InSight’s published pricing rates or at rates mutually agreed to in writing between Customer and 319 InSight. Also, 319 InSight may perform remedial services as provided for in the AUP at the pricing set forth therein and without obtaining Customer’s consent in advance. If a Customer subscribes for any Product and Service for a term other than on a month-to-month basis, then each month of such term Customer shall pay 319 InSight the greater of (i) the actual fees and expenses payable by Customer for the Products and Services for which Customer has subscribed for such term (based on all actual licensing and usage of such Products and Services on a monthly basis) and (ii) the Minimum Monthly Commitment. For purposes of this Agreement, “Minimum Monthly Commitment” shall be determined each month and shall mean with respect to each Product and Service subscribed for by Customer other than on a month-to-month basis, the greater of (A) the amount specified as the “Minimum Monthly Commitment” in the Order Form associated with the subscription for such Products and Services and (B) the highest aggregate monthly amount paid or payable by Customer with respect to all Products and Services subscribed to for a term other than on a month-to-month basis, during the current term for which Customer subscribed for such Products and Services. If for any month Customer’s aggregate monthly fees and expenses actually paid or payable by Customer for the Products and Services for which Customer has subscribed for such term (based on all actual licensing and usage of such Products and Services on a monthly basis) does not exceed the Minimum Monthly Commitment, then Customer shall pay the Minimum Monthly Commitment in lieu of the charges that would otherwise be due with respect to such Products and Services. All payments made by Customer with respect to such Products and Services shall be credited first towards the Minimum Monthly Commitment.
Term and Renewal:
Unless Customer agrees to a one-year term or unless otherwise stated in an Order Form or any service description, the initial term (“Initial Term”) of this Agreement shall be month-to-month, commencing on the Effective Date and shall automatically renew (A) in the case of a month-to-month term, the first day of each month for successive one-month periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement or (B) in the case of a one-year term, each yearly anniversary of the Effective Date for successive one-year periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement (in each case, a “Renewal Period”). Customer agrees to be bound by the service term selected on the Order Form or via applicable promotional codes. 319 InSight may cancel or elect not to renew the Products and Services for any reason or no reason at all by delivering to Customer a written notice of non-renewal at least (30) days prior to the expiration of the Initial Term or the then-current Renewal Period, as applicable.
Customer Cancellation or Non-Renewal:
In order to cancel or elect not to renew any Product or Service, Customer must (i) submit an in writing service cancellation request (a “Cancellation Notice”) at least (30) days prior to expiration of the Initial Term or the then-current Renewal Term and (ii) upon submission of the Cancellation Notice, contact via telephone a 319 InSight’s customer service representative to confirm the information set forth on the Cancellation Notice, unless otherwise instructed in writing by 319 InSight to do so otherwise.
CUSTOMER ACKNOWLEDGES AND AGREES THAT NO PRODUCT OR SERVICE WILL BE CANCELLED, ALL PRODUCTS AND SERVICES SHALL CONTINUE TO RENEW AND CUSTOMER WILL CONTINUE TO BE BILLED FOR ALL PRODUCTS AND SERVICES UNLESS CUSTOMER CONFIRMS VIA TELEPHONE THE INFORMATION PROVIDED IN THE CANCELLATION NOTICE AS PROVIDED IN SECTION 3 CLAUSE (ii) ABOVE.
Customer may terminate this Agreement with respect to all, and not less than all, of the Products and Services without liability (except for Charges due through the effective date of such termination) upon the occurrence of a material breach by 319 InSight of its obligations to provide the Products and Services according to the terms of this Agreement that is not cured within ten (10) business days after written notice from Customer describing such breach in detail is received by 319 InSight (“Customer Termination”). In the event of a Customer Termination, Customer shall pay (1) all outstanding amounts payable through the effective date of such termination and (2) if the Products and Services include software for which 319 InSight does not then provide general customer support, Customer shall pay to 319 InSight an amount equal to 319 InSight’s cost of such software for the entire Initial Term and any applicable Renewal Periods. If Customer terminates this Agreement for any reason other than a Customer Termination, Customer shall pay to 319 InSight an amount equal to all unpaid Charges through the effective date of such termination and (A) in the case of any Product and Service subscribed for on a month-to-month basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable and (B) in the case of any Product and Service subscribed for other than on a month-to-month basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable, calculated based upon the then-current Minimum Monthly Commitment payable by Customer upon the date of termination.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER WILL NOT BE ENTITLED TO ANY REFUND OR CREDIT IN THE EVENT THAT ANY PRODUCT OR SERVICE THAT IS PROVIDED ON THE BASIS OF A ONE-YEAR TERM IS TERMINATED, WITH OR WITHOUT CAUSE, PRIOR TO THE EXPIRATION OF THE ONE-YEAR TERM. CUSTOMER HEREBY WAIVES ALL RIGHTS TO ANY SUCH REFUND OR CREDIT.
Upon termination of this Agreement, 319 InSight and Customer shall have no obligations to each other, except as provided for in this Agreement. Upon termination of this Agreement, Customer shall (i) pay all Charges and other amounts due and owing to 319 InSight under these Terms of Service, (ii) immediately remove from 319 InSight’s premises all property owned by Customer, including, but not limited to, immediately removing all of Customer’s data from 319 InSight’s Network (including all servers owned or operated by 319 InSight), and (iii) return to 319 InSight all software, access keys, and any other property provided to Customer by 319 InSight under this Agreement. Any physical property of Customer not removed from 319 InSight’s premises within forty-five (45) days after such termination shall become the property of 319 InSight, which may, among other things, dispose of such property without the payment of any compensation to Customer. Sections 4, 5, 6, 7 and 8 shall survive the expiration, cancellation and termination of this Agreement for any reason.
Each Customer that is a Florida resident agrees to pay all taxes applicable to its account. Except as otherwise provided for herein, all Charges for the Products and Services, and for any additional services described herein, shall be invoiced to the Customer and paid in advance of the Initial Term and each Renewal Term (but may include any applicable pro-rated amounts for partial months of for Products and Services provided on a month-to-month basis) and shall be due and payable upon receipt. Any additional one-time charges, including early cancellation charges, accrued interest, late fees, service reinstatement fees, and any usage-based charges (installation or set-up fees) shall be invoiced in arrears and appear on either regular monthly invoices or separate invoices. Server rental charges are incurred immediately at signup and are prorated by 3 days to allow for server provisioning and delivery. Customer also shall pay to 319 InSight all expenses incurred by 319 InSight in exercising any of its rights under this Agreement or applicable law with respect to the collection of a payment default, including attorneys’ fees, court costs, and collection agency fees. If Customer fails to pay any past due amount within five (5) days after written notice by 319 InSight is given to Customer, 319 InSight may suspend performance under this Agreement and if such past due amounts remain unpaid within five (5) days thereafter, and 319 InSight may terminate this Agreement. 319 InSight may charge interest on any invoice amounts that are overdue by more than ten (10) days at the lesser of (a) 1.5% per month or (b) the maximum non-usurious rate under applicable law. Customer shall be deemed to have accepted as conclusively accurate any invoice that it has not disputed in a writing delivered to 319 InSight within sixty (60) days of the invoice date. Customer may withhold the disputed portions of payments that are properly and timely disputed hereunder as long as it timely pays all undisputed charges that are outstanding. The parties shall work together in good faith to resolve any such disputed charge. In the event that this Agreement is terminated by 319 InSight for any reason constituting “319 InSight’s Termination” (as defined above) or by Customer for any reason other than “Customer Termination” (as defined above), all Charges under the Agreement, including all remaining monthly or yearly fees due for the remaining portion of the Initial Term and each applicable Renewal Period, shall accelerate and are immediately due and payable. All set-up fees, monthly service fees and usage fees are non-refundable. Customer shall not be entitled to any refunds or credits, pro-rated or otherwise, in the event of early termination of this Agreement by 319 InSight according to the terms herein.
Customer agrees to indemnify and hold harmless 319 InSight, its subsidiaries, their affiliates and each of their respective directors, officers, employees, shareholders and agents (each an “Indemnified Party”) against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or relate to the Agreement, Customer’s use of the Products and Services, breach of any confidentiality obligation or any alleged infringement of any trademark, copyright, patent or other intellectual property right and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party, in connection with investigating, defending, or settling any Loss, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
Disclaimers; Limitation on Company Liability: 319 INSIGHT SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE PRODUCTS AND SERVICES BY THE CUSTOMER OR ANY THIRD PARTIES OR ANY FAILURE OF THE PRODUCTS AND SERVICES OR (ii) ANY LOSS OF DATA, INCLUDING LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS, FAILURE OF 319 InSight’s NETWORK, RECLAIMATION OF SERVERS BY 319 INSIGHT, FAILURE OF SERVERS, THE RELOADING OF AN OPERATING SYSTEM OR OTHER SOFTWARE ON A SERVER OR THE NEGLIGENCE OF NETWORKS. CUSTOMER IS SOLELY RESPONSIBLE FOR SAFEGUARDING, BACKING UP AND ARCHIVING ALL DATA OWNED, CONTROLLED OR TRANSMITTED BY CUSTOMER THAT RESIDES ON 319 InSight’s NETWORK OR ANY SERVER OWNED OR OPERATED BY 319 INSIGHT.
IN NO EVENT SHALL 319 InSight’s AGGREGATE LIABILITY FOR ANY CLAIM UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO 319 INSIGHT IN THE BILLING CYCLE IMMEDIATELY PRECEEDING SUCH CLAIM.
319 INSIGHT PROVIDES ALL PRODUCTS AND SERVICES “AS IS,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE PRODUCTS AND SERVICES AND 319 INSIGHT SHALL HAVE NO LIABILITY THEREFORE. NO CLAIM MAY BE ASSERTED BY CUSTOMER AGAINST 319 INSIGHT MORE THAN TWO (2) YEARS FOLLOWING THE DATE OF THE EVENT THAT UNDERLIES ANY SUCH CLAIM.
CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT ITS SOLE REMEDY IN THE EVENT OF 319 InSight’s FAILURE TO PROVIDE ANY PRODUCTS AND SERVICES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AS A RESULT OF A “QUALIFIED DOWNTIME EVENT” (AS DEFINED IN THE SLA) SHALL BE THE RIGHT TO SERVICE CREDITS (AS DEFINED IN THE SLA) SOLELY AS PROVIDED FOR IN THE SLA.
Notices: Unless otherwise specified herein, all notices, requests and other communications hereunder shall be sufficiently given if in writing and delivered personally or sent by facsimile transmission, internationally recognized overnight courier, or registered or certified mail (return receipt requested) to the address or facsimile number of Customer listed in 319 InSight’s records or if to 319 InSight then to the address set forth below. Such notices or other communications shall be deemed to have been given (a) on the date delivered (if delivered personally), (b) on the date that return confirmation is received (if sent by facsimile), (c) on the business day after being sent by an internationally recognized overnight air courier, or (c) five days after being sent (if sent by registered or certified mail).
319 InSight, Inc.
Attn: Legal Department
1600 S Federal Hwy Suite 400
Pompano Beach, FL 33062
Phone: (561) 819-9815
Fax: (802) 304-1024
Waiver: It is agreed that no waiver by any party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
Severability: If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected.
Force Majeure: Neither party shall lose any rights hereunder or be liable to the other party for damages or losses on account of failure of performance by the defaulting party if the failure is occasioned by any occurrence or contingency beyond its reasonable control, including war, strike, fire, Act of God, earthquake, flood, lockout, embargo, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party; provided that such party shall use commercially reasonable efforts to promptly mitigate any damages or losses.
319 InSight’s Use of Customer’s Name: Customer agrees that 319 InSight may, upon consent by Customer, publicly disclose that 319 InSight is providing services to Customer and may include Customer’s name in any promotional materials, such as press releases or 319 InSight’s web site. Neither party may publicly use the other party’s logo or other trade or service mark without that party’s consent.
Non-Solicitation: During the term of this Agreement and for twelve (12) months following termination of this Agreement, Customer agrees that it shall not solicit for employment with Customer (or with any other party) any employee of 319 InSight or interfere in the employment relationship between 319 InSight and any of its employees with whom Customer has had contact in connection with this Agreement.
Ownership: 319 InSight shall be the sole owner of all intellectual property, and all derivatives thereof, that 319 InSight may develop in the course of providing the Products and Services. Each party to this Agreement retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property. Upon termination of the Agreement, Customer agrees to promptly release any Internet protocol numbers, addresses, or address blocks assigned to Customer in connection with the Products and Services.
Third-Party Beneficiaries: There shall be no third party beneficiaries to the Agreement, including customers, employees, agents, or insurers.
Assignment: This Agreement shall not be assignable by Customer without 319 InSight’s prior written consent. 319 InSight may assign the Agreement in whole or in part upon written notice to Customer. This Agreement shall be binding upon and accrue to the benefit of any permitted assignee, and any such assignee shall agree to perform the obligations of the assignor.
Governing Law, Jurisdiction, Venue: THIS AGREEMENT AND ANY DISPUTE ARISING FROM THE PERFORMANCE OR BREACH HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, WITHOUT REFERENCE TO CONFLICTS OF LAWS PRINCIPLES AND EXCLUDING ANY APPLICATION OF THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. CUSTOMER (I) HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF FLORIDA LOCATED IN BROWARD COUNTY, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY BROUGHT BY THE CUSTOMER OR 319 INSIGHT OR THEIR RESPECTIVE SUCCESSORS OR ASSIGNS, (II) HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH SUITS, ACTIONS OR PROCEEDINGS Will BE HEARD AND DETERMINED through binding arbitration under the rules of the American Arbitration Association IN SUCH Jurisdiction and may be mutually agreed by both parties AND (III) A FINAL JUDGMENT OBTAINED IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING REFERRED TO IN THIS SECTION 8 SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT OR JUDGMENT OR IN ANY MANNER AS PROVIDED BY APPLICABLE LAW.