PowWeb's User Agreement
This User Agreement ("Agreement") is an agreement between
and the party set forth in the related Registration Form ("User" or "You" and "Your") incorporated herein by reference (together with any subsequent Registration Forms or other online signup, acceptance or order form submitted by User, the "Registration Form"), and applies to the purchase of all services ordered by User on the Registration Form (collectively, the "Services"). As used herein the term "User" and "You" shall also include any and all users, Customers, subscribers, affiliates (including without limitations Users or non-Users to whom PowWeb provides links or banners to promote the services or products of PowWeb or any third party the services or products of which are offered by or obtained through or in connection with PowWeb), resellers or others (i) who sign up for, use or obtain services or products from PowWeb or from any third party services or products of which are offered by or obtained through or in connection with PowWeb, or (ii) who visit the Web sites of PowWeb or of any such third party.
PLEASE READ THIS AGREEMENT CAREFULLY.
SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT. YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING OUR ACCEPTABLE USE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
Acceptable Use Policy.
Under this Agreement, User shall comply with PowWeb's
then current Acceptable Use Policy ("AUP"), as amended, modified or updated from time to time by
PowWeb, and other agreements which currently can be viewed under the Terms of
Service section of this Web site (collectively, the "Terms of Service"), and which is incorporated
in this Agreement by reference. User hereby acknowledges that it has reviewed the AUP and that
the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies
between this Agreement and the AUP, the terms of the AUP shall govern. PowWeb
does not intend to systematically monitor the content that is submitted to, stored on or distributed
or disseminated by User via the Service (the "User Content"). User Content includes content of User's
and/or users of User's Web site. Accordingly, under this Agreement, You will be responsible for Your
users content and activities on Your Web site. Notwithstanding anything to the contrary contained in
this Agreement, PowWeb may immediately take corrective action, including removal of
all or a portion of the User Content, disconnection or discontinuance of any and all Services, or
termination of this Agreement in the event of notice of possible violation by User of the AUP.
In the event PowWeb takes corrective action due to a violation of the AUP,
PowWeb shall not refund to User any fees paid in advance of such corrective
action. User hereby agrees that PowWeb shall have no liability to User or any of
User's users due to any corrective action that PowWeb may take (including, without
limitation, suspension, termination or disconnection of Services).
for details on the manner in which we collect, use, disclose and otherwise manage your personal information.
We are not “HIPAA compliant. You are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. You acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. PowWeb does not control or monitor the information or data you store on, or transmit through, our Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers requiring secure storage of “protected health information” under HIPAA are expressly prohibited from using this Service for such purposes. Storing and permitting access to “protected health information,” as defined under HIPAA is a material violation of this User Agreement, and grounds for immediate account termination. We do not sign “Business Associate Agreements” and you agree that PowWeb is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, email us.
Term; Termination; Cancellation Policy.
The initial term of this Agreement shall be as set forth in the Registration Form
(the "Initial Term"). The Initial Term shall begin upon commencement of the Services
to User, and after the Initial Term, this Agreement shall continue for successive periods (or renewal period) of equal
length as the Initial Term
OR SUCH OTHER TERM AND PRICE THAT SHALL BE SET FORTH IN A NOTICE TO THE CUSTOMER AT LEAST
24 hours PRIOR TO the commencement of such successive period or RENEWAL period. ADDITIONALLY
AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE US TO AUTOMATICALLY BILL
AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE or renewal PERIODS,
UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THIS SECTION.
The Initial Term
and all successive renewal periods shall be referred to, collectively, as the "Term".
- This Agreement may be terminated or cancelled;
at anytime by either party (Including by You, if you receive notice of an amendment to this Agreement) by giving the other party thirty (30) days prior written notice, provided that we may charge You a minimum $35.00 charge as an early cancellation fee.
If an account with a thirty (30) day money-back guarantee is purchased and cancelled within thirty (30) days of sign-up, the User will, upon request, receive a full refund of all hosting fees. Requests for these refunds should be made through our Support Team. Refunds made for a thirty (30) day money-back guarantee will not include domain registration fees or setup fees, nor will they include any fees for additional services that are purchased in the first thirty (30) days. If your plan includes a free domain name and You cancel within the first 30 days, a fee for the domain (and any applicable taxes) will be deducted from your refund. If you do not wish to keep the domain name, PowWeb will take possession of the domain and the fee will not be charged.
The thirty (30) day money-back guarantee is valid for credit-card payments only. Due to the costs associated with processing payments made by other methods, we are not able to offer the thirty (30) day money-back guarantee for other payment methods.
- by PowWeb in the event of nonpayment by User,
by PowWeb, at any time, without notice, if, in PowWeb's sole and
absolute discretion and/or judgment, User is in violation of any term or condition of this Agreement
and related agreements, AUP, or User's use of the Services disrupts or, in PowWeb's
sole and absolute discretion and/or judgment, could disrupt, PowWeb's business
- by PowWeb as provided herein.
If You cancel this Agreement, upon proper notice to PowWeb, prior to the end of the Initial Term or any successive period (or renewal period) thereafter,
You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation;
PowWeb may (but is not obligated to) refund to You all pre-paid fees for basic hosting services for the full months remaining after effectiveness of cancellation (i.e., no partial month fees shall be refunded), less any setup fees, cancellation fees, and any applicable taxes and any discount applied for prepayment, provided that You are not in breach of any terms and conditions of this AUP, User Agreement, Anti-Spamming Policy or Domain Policy;
If your plan includes a free domain name, a fee for the domain and any applicable taxes will be deducted from your refund. If you do not wish to keep the domain name, PowWeb will take possession of the domain and the fee will not be charged.
We may charge You one hundred percent (100%) of all charges for all
Services for each month remaining in the then-current Term (other than basic
hosting fees as provided in (ii) above).
Any cancellation request shall be effective thirty (30) days after receipt by PowWeb,
unless a later date is specified in such request.
PowWeb may terminate this Agreement, without penalty,
if the Services are prohibited by applicable law, or become impractical or
unfeasible for any technical, Terms of Service or regulatory reason, by
giving User as much prior notice as reasonably practicable; or
immediately, if PowWeb determines that User's use of the Services,
the Web site or the User Content violates any PowWeb term of service,
If PowWeb cancels this Agreement prior to the end of the Term for Your
breach of this Agreement and related agreements, including the AUP, User Agreement,
disrupts our network, PowWeb shall not refund to You any fees
paid in advance of such cancellation and You shall be obligated to pay all fees
and charges accrued prior to the effectiveness of such cancellation; further, We
may charge You 100% of all charges for all Services for each month remaining in
the then-current Term and PowWeb shall have the right to charge You an administrative
fee of a minimum of $35.00.
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(e), 4, 5, 15, 16, 20, 22
and 24 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 Terms of Service or equitable rights or remedies to which
PowWeb may be entitled.
UPON TERMINATION OF THIS AGREEMENT FOR ANY CAUSE OR REASON WHATSOEVER, USER WEB SITE FILES AND
USER CONTENT AND OTHER DATA IS DELETED UPON ACCOUNT TERMINATION. Accordingly,
User should always maintain back-up copies of User's web site and other User content
and data so User may use such copies host elsewhere after such termination.
You have ninety (90) days to dispute any charge or payment processed by
PowWeb. If you have a question concerning a charge you believe
is incorrect, please contact us at 866-476-9932 or through our chat service anytime by selecting our billing assistance option.
User is solely responsible for the quality, performance and all other
aspects of the User Content and the goods or services provided through
the User Web site.
User will cooperate fully with PowWeb in connection with
PowWeb's provision of the Services. User must provide
any equipment or software that may be necessary for User to use the Services.
Delays in User's performance of its obligations under this Agreement will extend
the time for PowWeb's performance of its obligations that
depend on User's performance on a day for day basis. User must provide complete,
correct and genuine contact information in the Registration Form and update such
information as necessary from time to time so it remains complete, correct and genuine
at all times; failure to do so may result in suspension or cancellation of
Services. User will notify PowWeb of any change in User's
mailing address, telephone, electronic mail or other contact information.
User assumes full responsibility for providing end users with any required
disclosure or explanation of the various features of the User Web site and any
goods or services described therein, as well as any rules, terms or conditions
Because the Services permit Users to electronically transmit or upload content directly
to the User Web site, User shall be fully responsible for uploading all content to
the User Web site and supplementing, modifying and updating the User Web site,
including all back-ups. User is also responsible for ensuring that the User Content
and all aspects of the User Web site are compatible with the hardware and software
used by PowWeb to provide the Services, as the same may be changed
by PowWeb from time to time. PowWeb shall not be
responsible for any damages to the User Content, the User Web site or other
damages or any malfunctions or service interruptions caused by any failure of the
User Content or any aspect of the User Web site to be compatible with the hardware
and software used by PowWeb to provide the Services.
User is solely responsible for making back-up copies of the User Web site and User Content.
PowWeb does not maintain backup copies of User Web sites or e-mail.
PowWeb cannot guarantee that the contents of a Web site will never
be deleted or corrupted, or that a backup of a Web site will always be available.
Users should always copy all content of a Web site to a local computer and
PowWeb strongly suggest that Users make an additional copy
(on tape, CD, multiple floppy disks, another desktop, or elsewhere) to ensure the
availability of the files. IT IS THE USER'S SOLE RESPONSIBILITY TO MAKE OFFLINE, BACK-UP COPIES OF THE USER'S WEB SITE AND USER CONTENT AND DATA.
NOTE: IT IS ESSENTIAL THAT USERS BACKUP FILES OFFLINE, EVEN IF USER PURCHASES
OR HAS PRODUCTS, SUCH AS SITE BACKUP AND RESTORE.
The user is responsible for maintaining complete backups for any files, content, software, or
other items stored from time to time in a VPS account or VPS container. PowWeb
does not maintain such back-ups.
As part of PowWeb's ongoing hosting, PowWeb does create and
store on a temporary basis VPS
backups which are intended for PowWeb's disaster recovery only which are
only in the event of hardware failure, and only for a short period thereafter. PowWeb cannot
guarantee the existence, accuracy or completeness of any backups. Please note that typically
a complete VPS restoration will overwrite anything stored in your VPS account.
User is responsible for maintaining the confidentiality of login and billing
information. PowWeb is not liable for any account disputes that may
arise between various parties holding account login information. PowWeb
is not responsible for any changes made to the account or any information that has been
modified by User, or any parties authorized by User, to access the Control Panel.
User is responsible for updating and maintaining contact and billing information with
PowWeb. Any changes to the User contact information must be made using
the account Control Panel or by contacting our Support Team. User is
responsible for ensuring that PowWeb is able to notify the User for
technical, billing or other issues or purposes deemed necessary by PowWeb
to maintain the account.
Free Web Hosting. If you have enrolled in a free plan, your Web site may carry
advertising HTML for PowWeb or a third party, which could include
different types of advertisements, including banners or pop-ups. If you would prefer
not to have such advertising on your Web site, we encourage you to sign up for a plan
that does not include advertising. Our Support Team can help you choose the plan that
is right for you
User's Representations and Warranties.
User hereby represents and warrants to PowWeb, and agrees that during
the Initial Term and any Term thereafter User will ensure that:
User is the owner or valid licensee of the User Content and each element thereof,
and User has secured all necessary licenses, consents, permissions, waivers and
releases for the use of the User Content and each element thereof, including without
limitation, all trademarks, logos, names and likenesses contained therein, without
any obligation by PowWeb to pay any fees, residuals, guild payments
or other compensation of any kind to any Person;
User's use, publication and display of the User 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;
User will comply with all applicable laws, rules and regulations regarding the
User Content and the User Web site and will use the User Web
site only for lawful purposes; and
User has used its best efforts to ensure that the User Content is and will at all
times remain free of all computer viruses, worms, Trojan horses and other malicious code.
User shall be solely responsible for the development, operation and maintenance of
User's Web site, online store and electronic commerce activities, for all products
and services offered by User or appearing online and for all contents and materials
appearing online or on User's products, including, without limitation
the accuracy and appropriateness of the User Content and content and material
appearing in its store or on its products,
ensuring that the User Content and content and materials appearing in its
store or on its products do not violate or infringe upon the rights of any person, and
ensuring that the User Content and the content and materials appearing in its
store or on its products are not defamatory or otherwise illegal. User shall
be solely responsible for accepting, processing and filling User orders and for
handling User inquiries or complaints. User shall be solely responsible for the
payment or satisfaction of any and all taxes associated with its Web site and online store.
User grants PowWeb the right to reproduce, copy, use and distribute
all and any portion of the User Content to the extent needed to provide and operate the Services
In addition to transactions entered into by You on Your behalf, You also agree to be bound
by the terms of this Agreement for transactions entered into on Your behalf by anyone
acting as Your agent, and transactions entered into by anyone who uses Your account,
whether or not the transactions were on Your behalf.
FOR MASSACHUSETTS RESIDENTS ONLY: User (a) shall at all times be solely responsible for and maintain the
confidentiality of personal information of user's in accordance with laws and regulations applicable to User
and its customers, including, with respect to Massachusetts residents, 201 CMR 17.00: Standards for the
Protection of Personal Information of Residents of the Commonwealth (the "MA Regulation") and (b) maintain
appropriate security measures that are in compliance with laws and regulations applicable to User and its customers,
including, with respect to Massachusetts residents, the MA Regulation. For the purposes of this section [5.e ], "personal information"
means information about an identifiable individual, including the first and last name or first initial and last
name of an individual together with one or more of the following relating to such individual: (i) Social Security
or social insurance number or similar identifier; (ii) driver's license number/state/province-issued identification
number; or (iii) financial account number, or credit or debit card number, with or without any required security
code, access code, personal identification number, or password, that would permit access to the account.
FOR CUSTOMERS OTHER THAN MASSACHUSETTS RESIDENTS: User (a) shall at all times be solely responsible for and maintain
the confidentiality of personal information of User's customers in accordance with laws and regulations applicable to User
and its customers, including, with respect to Massachusetts residents, 201 CMR 17.00: Standards for the Protection of
Personal Information of Residents of the Commonwealth (the "MA Regulation") and (b) maintain appropriate security measures
that are in compliance with laws and regulations applicable to User and its customers, including, with respect to
Massachusetts residents, the MA Regulation. For the purposes of this section [5.f ], "personal information" means
information about an identifiable individual, including the first and last name or first initial and last name of an
individual together with one or more of the following relating to such individual: (i) Social Security or social insurance
number or similar identifier; (ii) driver's license number/state/province-issued identification number; or (iii) financial
account number, or credit or debit card number, with or without any required security code, access code, personal
identification number, or password, that would permit access to the account.
License to PowWeb. User hereby grants to PowWeb a
non-exclusive, royalty-free, worldwide right and license during the Initial Term and
any Term thereafter to do the following to the extent necessary in the performance of Services, except that with respect to
personal information included in the User Content, such license shall be limited to
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 User Content; and
- make archival or back-up copies of the User Content and the User Web site.
Except for the rights expressly granted above, PowWeb is
not acquiring any right, title or interest in or to the User Content, all
of which shall remain solely with User.
PowWeb, in its sole discretion, reserves the right (i) to deny,
cancel, suspend, transfer or alter, modify, correct, amend, change, program,
or take any other corrective action to protect the integrity and stability of
the Services (including altering, modifying, correcting, amending, changing,
programming, or taking any other corrective action regarding any malicious
code, software or related abusive activity, User Content and/or Web site(s)),
and/or (ii) to comply with any applicable laws, government rules, or
requirements, requests of law enforcement, or to avoid any liability, civil
or criminal. User further agrees that PowWeb shall not be
liable to User for any loss or damages that may result from such conduct.
- PowWeb Content.
Except for User Content, all content available through the Services including without limitation any site builder tools, website templates,
themes, designs, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all
software used to provide the Services (collectively, "PowWeb Content"), are the proprietary property of PowWeb or its licensors.
No PowWeb Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for
any purpose in any form or by any means, in whole or in part, other than as expressly permitted by PowWeb. You may not, directly or indirectly,
reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any PowWeb Content. Any use of the
PowWeb Content other than as specifically authorized herein is prohibited and will automatically terminate your rights with respect to use of the
Services and the PowWeb Content granted herein. All rights of PowWeb or its licensors that are not expressly granted in this Agreement are reserved
to PowWeb and its licensors.
- Licenses, Copyright Notices and Photo Credits. Any permitted use of PowWeb Content is subject to the terms of any applicable license. Users shall not remove any
copyright notices or photo credits appearing on any PowWeb Content that Users have been granted the right to use. Any violation of this section will be deemed a breach of this Agreement.
Billing and Payment.
User will pay to PowWeb the service fees for the
Services in the manner set forth in the Registration Form.
Please note that special offers are limited-time promotional prices that are available to new customers and
are valid for the Initial Term only, and not for successive or renewal periods. You will be notified of your
pricing for EACH successive period (or renewal period) prior to the start of SUCH successive period (or renewal period).
Your pricing for SUCH successive period (or renewal period) ALSO will be available through your control panel at
the start of such successive period (or renewal period). PowWeb may increase the Service Fee and Product 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 24 hours prior written notice thereof to User. Written notice may be in the form
of (i) notices and updates in the User's Control Panel , (ii) Public Alerts issued by PowWeb, (iii)
Notification of Successive Period Pricing ( or RENEWAL period pricing), or [(iv) posting of next scheduled
rebill amount in User's Billing Central]. It is the User's sole responsibility to periodically review User's
Billing Central information and all other methods of communications and notices sent or posted by PowWeb.
User may always check the User's Billing Central area to get an up-to-date statement of
the current amount being billed to User for Services. It is the User's sole responsibility
to periodically review users Billing Central information.
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
PowWeb's net income). All such taxes may be added to
PowWeb's invoices for the fees as separate charges to
be paid by User. All fees are fully earned when due and non-refundable when paid.
Unless otherwise specified, all initial fees shall be payable upon sign-up, and all subsequent fees and related charges shall be due and payable when billed, if by credit card, or if not by credit card, within thirty (30) days after the date of the invoice.
If PowWeb collects any payment due at law or through an attorney
at law or under advice therefrom or through a collection agency, or if
PowWeb prevails in any action to which the User and
PowWeb are parties, User will pay all costs of collection,
arbitration and litigation, including, without limitation, all court costs
and PowWeb's reasonable attorneys' fees.
If any check is returned for insufficient funds PowWeb may
impose a minimum processing charge of $25.00 plus any applicable taxes.
In the event that any amount due to PowWeb is not paid when due, PowWeb,
in its sole discretion, may immediately terminate this Agreement, and/or withhold
or suspend Services. NOTE: USER WEB SITE FILES AND USER CONTENT AND OTHER
DATA IS DELETED UPON ACCOUNT TERMINATION.
- There may be a minimum $50.00 charge to reinstate accounts that have been suspended or terminated.
- Wire transfers will be assessed a minimum charge of $35.00 plus applicable taxes.
- There may be a minimum charge of $35.00 plus applicable taxes for all credit card chargebacks.
User acknowledges and agrees that PowWeb may pre-charge
User's fees for Services and products to its credit card supplied by User during
registration for the Initial Term.
YOU ACKNOWLEDGE, AGREE AND AUTHORIZE US TO AUTOMATICALLY BILL AND/OR
CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE
INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN SECTION.
Free Trial Terms. If you signed up for a free trial, the following terms and conditions apply to your free trial offer.
- Following the expiration of your trial period, you will be automatically charged for the remainder of the term using the credit card you previously provided unless you
cancel the Services prior to the expiration of the trial period.
- If you have not provided PowWeb with your credit card information and you have not decided to purchase the Services prior to the expiration of the trial, the
Services will not be automatically renewed and your access to your website and files may be limited or terminated completely upon expiration.
Payment Policies - General
- Accounts will not be activated or reactivated without prior payment.
All hosting fees and domain name renewal fees are due at time of invoice for the renewing account and/or domain name.
Incomplete, incorrect or questionable signup information can result
in an account being suspended or terminated or NOT being activated.
Some accounts may be placed on hold for up to 72 hours, pending review
of information received.
Any losses or expenses experienced by the User, due to actions taken by
PowWeb in response to Users non-payment, are not
the responsibility of PowWeb.
Unless stated otherwise, a reference to 'USD$', '$US', 'dollar' or '$' is a reference
to USA currency. All fees or other amounts hereunder shall be payable in US currency, provided however
that in the event you signed up for your account or any other product or service for which the
fee or other amount is payable in a currency other than $US, then any amounts payable by you hereunder
shall be payable in such other currency.
Payment Policies - Payment Processing
- PowWeb's preferred method of payment is credit card.
By purchasing our services, you are agreeing to allow PowWeb to
place your account on a recurring payment plan. The account will automatically be
re-billed according to the terms of the plan, products or services you select. By continuing (or renewing) your services
and products you further agree to all of PowWeb's Terms of Services and any price increases.
You grant PowWeb permission to charge your credit card for any
and all services you request, including, but not limited to, any and all product or service.
If we are unable to process a payment for your plan, product or service by its due date,
your account will be cancelled for non-payment and you will not be able to
access your Web site or e-mail.
WHEN AN ACCOUNT IS CANCELED, ALL COPIES OF THE WEB SITE AND E-MAIL FILES
ARE PERMANENTLY AND IRRETRIEVABLY REMOVED FROM OUR SERVERS UPON ACCOUNT CANCELLATION.
If an account has been suspended for non-payment, it will only be reactivated
upon payment of all overdue fees. Upon reactivation, we are not responsible
for any deleted Web site or Content.
If we make any refunds due to charges you dispute with your credit card
PowWeb, we will cancel your account. The cancelled account will only
be reactivated once all disputed/refunded fees are resolved satisfactorily, and we
receive payment for any and all administrative fees incurred by PowWeb
as a result of your dispute or charge-back request. We cannot guarantee any files
or e-mail will be available upon reactivation.
It is a violation of this Agreement for you to misuse or fraudulently use credit cards,
charge cards, electronic funds transfers, and/or electronic checks. A determination
of such misuse or fraudulent use shall be in our sole discretion. Further, we may
report all such misuses and fraudulent uses (as determined by us in our sole discretion)
to appropriate government and law enforcement authorities, credit reporting services,
financial institutions and credit card companies.
PowWeb as Reseller or Licensor. PowWeb is
acting only as a reseller or licensor of certain services, hardware, software and
equipment used in connection with the products and/or Services that were or are
manufactured or provided by a third party ("Non-PowWeb Product").
PowWeb shall not be responsible for any changes in the Services
that cause the Non-PowWeb Product to become obsolete, require
modification or alteration, or otherwise affect the performance of the Services.
Any malfunction or manufacturer's defects of Non-PowWeb Product
either sold, licensed or provided by PowWeb to User or purchased
directly by User used in connection with the Services will not be deemed a breach
of PowWeb's obligations under this Agreement. Any rights or
remedies User may have regarding the ownership, licensing, performance or
compliance of Non-PowWeb Product are limited to those rights extended
to User by the manufacturer of such Non-PowWeb Product. User is
entitled to use any Non-PowWeb Product supplied by PowWeb
only in connection with User's permitted use of the Services. User shall use its best efforts
to protect and keep confidential all intellectual property provided by PowWeb
to User through any Non-PowWeb Product and shall make no attempt to copy,
alter, reverse engineer, or tamper with such intellectual property or to use it other than
in connection with the Services. User shall not resell, transfer, export or re-export any
Non-PowWeb Product, or any technical data derived therefrom, in violation
of any applicable United States or foreign law.
Internet Protocol (IP) Address Ownership. If PowWeb assigns User an
Internet Protocol ("IP") address for User's use, the right to use that IP address shall belong
only to PowWeb, and User shall have no right to use that IP address
except as permitted by PowWeb in its sole and absolute discretion in
connection with the Services, during the term of this Agreement. PowWeb
shall maintain and control ownership of all Internet Protocol numbers and addresses
that may be assigned to User by PowWeb, and PowWeb
reserves the right to change or remove any and all such Internet Protocol numbers
and addresses, in its sole and absolute discretion.
Caching. User expressly;
grants to PowWeb a license to cache the entirety of the User Content
and User's Web site, including content supplied by third parties, hosted by PowWeb
under this Agreement and
agrees that such caching is not an infringement of any of User's intellectual property
rights or any third party's intellectual property rights.
CPU Usage. User agrees that User shall not use excessive amounts of
CPU processing on any of PowWeb's servers. Any violation
of this policy may result in corrective action by PowWeb,
including assessment of additional charges, disconnection or discontinuance
of any and all Services, or termination of this Agreement, which actions may
be taken in PowWeb's sole and absolute discretion. If
PowWeb takes any corrective action under this section,
User shall not be entitled to a refund of any fees paid in advance prior
to such action.
Bandwidth and Disk Usage. PowWeb provides Users with bandwidth, disk space and other
resources, such as e-mail and/or file-transfer-protocol ("FTP") accounts, the amount of which is
defined in PowWeb's web pages describing the package of Services purchased at the time of purchase.
In some cases, PowWeb may not establish a specific amount of bandwidth, disk space and other resources,
and refer to that as "Unlimited". In all cases, the Services are intended for normal use only, and
any activity that results in excessive usage that is inconsistent with normal usage patterns is
strictly prohibited. PowWeb reserves the right to suspend, discontinue or delete the accounts of
Users whose use of disk space, bandwidth or other resources results in or presents the risk of
degradation of service to other customers, regardless of the amount of disk space, bandwidth or
other resources included in the User's plan. User agrees that such usage shall not exceed the
amounts set by PowWeb for the Services purchased (the "Agreed Usage") and is additionally
subject to normal usage guidelines established by PowWeb as in effect from time to time.
These allotments are optimized and dedicated towards serving the Content and User's active
electronic mail services related solely to User's web hosting account(s) with PowWeb.
Hosting space is intended for normal use only, and is limited to Web files, active e-mail and
content of the hosted Web sites, not for storage (whether of media, e-mails, or other data).
Hosting space further may not be used as offsite storage of electronic files, electronic mail
or FTP hosts. You are responsible for removing any files, e-mails or other data which do not
meet these requirements, and for adhering to any usage requirements or limits allocated to
your account(s). Failure to do so may result in removal and deletion of such materials
(including without limitation files and e-mails), and/or in discontinuation of your
services or account, which actions we may take in our sole discretion.
PowWeb will monitor User's use of bandwidth, disk usage and other resources. PowWeb, in its
sole discretion, shall have the right to take any corrective action if User's utilization of bandwidth,
disk usage or other resources exceeds the Agreed Usage, normal usage, or is used for other improper
storage or usage. Such corrective action may include the assessment of additional charges,
disconnection or discontinuance of any and all Services, removal or deletion of User's Web
site, User Content, User's electronic mail and e-mail services and/or other materials and
services or termination the User's account and of this Agreement, which actions may be taken
in PowWeb's sole and absolute discretion.
If PowWeb takes any such corrective action under this section, User shall not be entitled to a refund or credit
of any fees paid prior to such action. User will comply with all applicable laws, rules and regulations
regarding User's Web site, User Content and/or User's electronic mail services, including use of bandwidth,
disk usage and other resources and will use such services and resources only for lawful purposes. User may
not utilize: the Services to copy material from third parties (including text, graphics, music, videos or
other copyrightable material) without proper authorization; the Services to misappropriate or infringe the
patents, copyrights, trademarks or other intellectual property rights of any third party; the Services to
traffic in illegal drugs, gambling, obscene materials or any other products or services that are prohibited
under applicable law; the Services to export encryption software to points outside the United States
(or, if User is outside the United States, to points outside the User's national jurisdiction) in
violation of applicable export control laws; the Services to forge or misrepresent message headers,
whether in whole or in part, to mask the originator of the message. If PowWeb learns or discovers that
User is violating any law related to User's Web site, User Content and/or User's electronic mail services,
use of bandwidth, disk usage or other resources or Agreed Usage, PowWeb may be obligated to or may in
its discretion inform the necessary law enforcement and/or any related agency(ies) of such conduct and
may provide such agency(ies) with information related to User, User's Web site, User Content and/or
User's electronic mail.
User is responsible for complying with any usage requirements or limits for bandwidth, disk space or
other resources, and monitoring such usage to ensure the Web site does not violate such requirements or
exceed any such limits allocated for the account(s) and otherwise complies with this Agreement. PowWeb
will use commercially reasonable efforts to e-mail Users who are at or near their utilization limits, but
PowWeb does not take responsibility if e-mail notification(s) is not received by the User. PowWeb reserves
the right to discontinue service through the beginning of the next month for your account in the event
that it exceeds the any such allotment.
Parked Domain Services. In addition to the applicable terms and conditions contained herein:
If User signs up to register and park a domain name with PowWeb, All domain name renewal fees are due at time of invoice, before the renewal date of the domain name. Payments are non-refundable. If for any reason PowWeb is unable to charge User's payment method for the full amount owed PowWeb for the
service provided, or if PowWeb is charged a penalty for any fee it previously
charged to Your payment method, User agrees that PowWeb may pursue all
available remedies in order to obtain payment. User agrees that among the remedies
PowWeb may pursue in order to effect payment, shall include but will
not be limited to, immediate cancellation without notice to User of User's service.
PowWeb reserves the right to charge a reasonable service fee for
administrative tasks outside the scope of its regular services. These include, but
are not limited to, User service issues that cannot be handled over e-mail but require
personal service, and disputes that require legal services. These charges will be billed
to the payment method we have on file for User.
User agrees to be responsible for notifying PowWeb should User desire to
terminate use of any of the Parked Page Services, including, but not limited to, those
purchased. Notification of User's intent to terminate must be provided to PowWeb
no earlier than thirty (30) days prior to User's billing date but no later than ten (10) days prior
to the billing date. In the absence of notification from User, PowWeb will
automatically continue the Parked Page Services indefinitely and will charge User's payment
method that is on file with PowWeb, at PowWeb's then
current rates. It is User's responsibility to keep their payment method information current,
which includes the expiration date if using a credit card. In the event User terminates the
Parked Page Services, moving their Web site off of the PowWeb hosting
servers is User's responsibility. PowWeb will not transfer or FTP such
Web site to another provider. Any change by User of their name-server is not deemed
cancellation of the Parked Page Services.
PowWeb will provide User with the Parked Page Services as long as User
abides by the terms and conditions set forth herein and in each of PowWeb's
policies and procedures.
By using any of the Parked Pages Services, User agrees that PowWeb may
point the domain name or DNS to one of PowWeb's or PowWeb's
affiliates web pages, and that they may place advertising on User's web page and that
PowWeb specifically reserves this right. User shall have no right to any
compensation and shall not be entitled and shall have no right to receive any funds related
to the monetization of User's Parked Pages.
User agrees to indemnify and hold harmless PowWeb for any complications
arising out of use of the Parked Page Services, including, but not limited to, actions
PowWeb chooses to take to remedy User's improper or illegal use of a Web site
hosted by PowWeb. User agrees it is not be entitled to a refund of any fees
paid to PowWeb if, for any reason, PowWeb takes corrective action
with respect to any improper or illegal use of the Parked Page Services.
If a dispute arises as a result of one or more of User's Parked Pages, User will indemnify,
defend and hold PowWeb harmless for damages arising out of such dispute.
User also agrees that if PowWeb is notified that a complaint has been filed
with a governmental, administrative or judicial body, regarding a Web site hosted by
PowWeb, that PowWeb, in its sole discretion, may take
whatever action PowWeb deems necessary regarding further modification,
assignment of and/or control of the Web site to comply with the actions or requirements
of the governmental, administrative or judicial body until such time as the dispute is settled.
SimpleScripts Terms. SimpleScripts automates the installation of a given open
source application. Users are free to install open source applications independently of
SimpleScripts by following the instructions provided by PowWeb or the
organization that developed the open source application. When a User uses an open source
application, the User licenses it from the open source provider, not from PowWeb.
We do not provide support for the application once the application has been successfully installed;
we provide support only for the installation or upgrade process. Any support requests regarding
actual use of the application must be directed to the organization or PowWeb that
developed the application.
- The User is responsible for creating back-ups before upgrading to the next version.
- We can not guarantee that the version we currently provide is the latest one being distributed by the vendor.
Any security risks including, but not limited to, hacking, phishing and information piracy
are the sole responsibility of the User.
- We reserve the right to discontinue applications managed by SimpleScripts at any time.
SimpleScripts applications are installed at the User's own risk. We can not be held liable
for lost data or damage caused by open source applications provided through SimpleScripts.
Standard and Private-Label Reseller Programs. In addition to all terms and conditions described
in this Agreement, the following shall also be applicable to PowWeb Wholesale,
Wholesale Plus and Private-Label Resellers;
The Reseller agrees, on behalf of both the Reseller and each User signed up by the Reseller,
to comply with these Terms of Service.
In the event that a Reseller or a Reseller's User is determined to be in violation of the
Terms of Service, the Reseller shall, upon receipt of notice of the violation, take
prompt action to ensure that the account in question is updated to be in full compliance
with the Terms of Service.
PowWeb is not responsible for the actions or misrepresentations of Resellers.
The Reseller hereby agrees to indemnify PowWeb from and against any and all
claims made by any User that result from the Reseller's misrepresentation, breach of the Terms
of Service or other improper actions by the Reseller.
PowWeb reserves the right to revise its Wholesale, Wholesale Plus and
Private-Label Reseller Programs, AUP and the Terms of Service at any time. Changes shall
take effect when posted online or on any subsequent date as may be set forth in any required
notice provided by us in connection therewith.
Users who have been signed up by Resellers agree to operate their Web sites in accordance with the Terms of Service.
Resellers cannot make any modifications to the PowWeb Terms of Service.
Any such alterations shall be deemed a violation of the Terms of Service and could result
in a cancellation of a Reseller's account(s). PowWeb is not responsible
for any modifications made to the Terms of Service by Resellers.
Resellers in the Wholesale Reseller Program assume all responsibility for billing and technical
support for each of their Users. PowWeb reserves the right to refuse inquiries
made to the Support Team from the Customers of Resellers in the Wholesale Reseller Program.
Obligations of Resellers of Domain Registrar Services. If
you are a Reseller of Domain Registrar Services these Terms of Service,
including without limitation the following provisions, constitute the
agreement by which you would provide Registrar Services ("Registrar
- Registrar Reseller agrees to comply with any and all policies, terms and conditions of ICANN (http://www.icann.org/registrars/ra-agreement-17may01.htm), or such other registration agreement as ICANN, PowWeb, or registry administrator shall post on their website from time to time, but only those portions that are applicable to all registrars, including, but not limited to, those that will prohibit the registration of certain domain names (those not allowed to be registered by statute or regulation).
- Registrar Reseller is prohibited from displaying the ICANN or
ICANN-Accredited Registrar logo, or from otherwise representing itself
as accredited by ICANN unless it has written permission from ICANN to do so.
- Any registration agreement used by Registrar Reseller shall include
all registration agreement provisions and notices required by the ICANN
Registrar Accreditation Agreement and any ICANN Consensus Policies, and shall identify the sponsoring registrar or provide a means for
identifying the sponsoring registrar, such as a link to the InterNIC
Whois lookup service.
- Registrar Reseller shall identify the sponsoring registrar upon
inquiry from the customer.
- Registrar Reseller shall ensure that the identity and contact
information provided by the customer of any privacy or proxy
registration service offered or made available by Registrar Reseller in
connection with each registration will be deposited with Registrar or
held in escrow or, alternatively, display a conspicuous notice to such
customers at the time an election is made to utilize such privacy or
proxy service that their data is not being escrowed. Where escrow is
used, the escrow agreement will provide, at a minimum, that data will be
released to registrar in the event Registrar Reseller breaches this
reseller agreement, and such breach is harmful to consumers or the
public interest. In the event that ICANN makes available a program
granting recognition to resellers that escrow privacy or proxy
registration data as detailed above, and Registrar Reseller meets any
other criteria established by ICANN in accordance with its Bylaws,
Registrar Reseller shall be permitted to apply to ICANN for such
Registrar Reseller shall provide a link to the ICANN webpage that identifies available registrant rights and responsibilities, currently found at http://www.icann.org/en/resources/registrars/registrant-rights-responsibilities on any website it may operate for domain name registration or renewal clearly. Such link shall be displayed to its registered name holders at least as clearly as links to policies or notifications required to be displayed under ICANN Consensus Policies.
- If PowWeb becomes aware that such a Registrar Reseller is in
breach of any of the foregoing provisions, PowWeb shall take
reasonable steps to notify the Registrar Reseller that it is in breach
of this reseller agreement and that PowWeb has the right to terminate
Virtual Private Servers (VPS). VPS sometimes also referred to as Virtual Dedicated Server.
When creating a VPS account, we split dedicated servers into independent areas, referred to as containers.
The customer is responsible for providing the firewalls, software, web files, content and Operating systems
for the customer's container, independent of other containers on the server. Each container is allotted
its own disk space, CPU power, bandwidth, and memory. This isolation of server space allows for
independent server customization for which the customer is responsible
VPS is different from shared hosting, and VPS customers should be technically advanced and prepared to
use and operate a server, various Operating Systems, Linux and root access.
In addition to all terms and conditions described in this Agreement, the following shall also be applicable
to PowWeb VPS customers;
- The Customer assumes all responsibility for installation and maintenance of the Operating System (OS) used within the customer's container, as well as any reinstalls and changes.
- Customer assumes all responsibility for their VPS environment, firewalls, protections from bugs, viruses or other intrusions, content applications and resources used.
- Customer agrees to take full responsibility for installation, storage, back-up, maintenance, and other aspects of its files, software, data and other content or items transferred to or used in the container and the VPS account.
- The Customer is solely responsible for all files contained in their VPS whether the Customer had knowledge of the files or not and for assuring that the container is used and operated in compliance with this Agreement.
- It is the responsibility of the customer to ensure their system is secured and safe from compromise at all time. If a container is found to be compromised or in violation of this Agreement, PowWeb has the right to suspend and terminate service immediately.
Resource Usage Limits. Misuse of system resources, including but not limited to, employing programs that
consume excessive CPU time (outside of reserved for user's container), network capacity, disk IO or storage
space, may result in account suspension and termination.
Mail Policy. VPS accounts will be governed by our shared-hosting mail policy (See Acceptable Use
Policy section 4.a). Furthermore, anyone hosting websites or services on their server or container
that support spammers or cause any of our IP space to be listed in any of the various Spam Databases
will have their server immediately removed from our network.
Third-Party Software. In the event You elect to install any third-party software, the following terms shall apply;
- You represent and warrant You have the right to use and install the third-party software.
- You have paid the applicable licensing fees for the third party software, and the third-party software does not and shall not infringe on the intellectual property rights of any other person or entity.
- You agree to defend, indemnify and hold harmless PowWeb and its employees, officers and directors for, from and against any and all claims brought against PowWeb and its employees, officers and directors by a third-party alleging the software infringes:
- the third-party's rights; or
- a third party's patent, trademark, copyright or other intellectual property right. You agree that in such an event You shall pay all resulting costs, damages, expenses and reasonable attorneys' fees that a court awards and settlements incurred by PowWeb in connection with any such claims.
PowWeb hereby grants to User a limited, non-exclusive, non-transferable,
royalty-free license, exercisable solely during the term of this Agreement, to use PowWeb
technology, products and services solely for the purpose of accessing and using the Services.
User may not use PowWeb's technology for any purpose other than accessing and
using the Services. Except for the rights expressly granted above, this Agreement does not transfer
from PowWeb to User any PowWeb technology, and all rights, titles
and interests in and to any PowWeb technology shall remain solely with
PowWeb. User shall not, directly or indirectly, reverse engineer, decompile,
disassemble or otherwise attempt to derive source code or other trade secrets from any of the
PowWeb owns all right, title and interest in and to the Services and PowWeb's
trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and
other intellectual property rights relating to the design, function, marketing, promotion, sale and
provision of the Services and the related hardware, software and systems ("Marks"). Noting in this
Agreement constitutes a license to User to use or resell the Marks.
Disclaimer of Warranty. User agrees to use all Services and any information obtained through
or from PowWeb, at User's own risk. User acknowledges and agrees that PowWeb
exercises no control over, and accepts no responsibility for, the content of the information passing through
PowWeb's host computers, network hubs and points of presence or the Internet.
THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NEITHER
WE NOR ANY OF OUR PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE
EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY
INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, A "RELATED PERSON") MAKE ANY WARRANTIES
OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT WE PROVIDE.
NO RELATED PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO
ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR
AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR
PROVIDED THROUGH THE SERVICES. WE ARE NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT
OF ANY DATA TRANSFERRED EITHER TO OR FROM USER OR STORED BY USER OR ANY OF USER'S USERS VIA THE SERVICES
PROVIDED BY US NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY RELATED PERSON, WILL CREATE A
WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall
survive any termination of this Agreement.
PowWeb represents and warrants to User that the Services will be performed (a)
in a manner consistent with industry standards reasonably applicable to the performance thereof;
(b) at least at the same level of service as provided by PowWeb generally to its
other Users for the same services; and (c) in compliance in all material respects with the
applicable Service Descriptions. User will be deemed to have accepted such Services unless
User notifies PowWeb, in writing, within thirty (30) days after performance
of any Services of any breach of the foregoing warranties. User's sole and exclusive remedy,
and PowWeb's sole obligation, for breach of the foregoing warranties
shall be for PowWeb, at its option, to re-perform the defective Services at
no cost to User, or, in the event of interruptions to the Services caused by a breach of the
foregoing warranties, issue User 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. PowWeb may
provision the Services from any of its data centers and may from time to time re-provision the Services
from different data centers.
The foregoing warranties shall not apply to performance issues or defects in the Services (a)
caused by factors outside of PowWeb's reasonable control; (b) that resulted
from any actions or inactions of User or any third parties; or (c) that resulted from User's equipment
or any third-party equipment not within the sole control of PowWeb. EXCEPT AS EXPRESSLY
PROVIDED IN THIS SECTION, WE MAKE 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 WE HEREBY EXPRESSLY DISCLAIM THE SAME. WITHOUT LIMITING
THE FOREGOING, ANY THIRD-PARTY PRODUCT OR SERVICE PROVIDED TO USER HEREUNDER IS PROVIDED "AS IS"
WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED,
ERROR-FREE OR COMPLETELY SECURE.
Limitation of Liability.
IN NO EVENT WILL OUR 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 US BY YOU DURING THE 3-MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
WE CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA,
INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. WE 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.
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 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.
The limitations contained in this Section apply to all causes of action in the aggregate,
whether based in contract, tort or any other Terms of Service theory (including strict liability),
other than claims based on fraud or willful misconduct. The limitations contained in Section 18
shall not apply to User's indemnification obligations.
Notwithstanding anything to the contrary in this Agreement, PowWeb's
maximum liability under this Agreement for all damages, losses, costs and causes of actions from
any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory
or otherwise) shall not exceed the actual dollar amount paid by User for the Services which
gave rise to such damages, losses and causes of actions during the 3-month period prior
to the date the damage or loss occurred or the cause of action arose.
User understands, acknowledges and agrees that if PowWeb takes any corrective
action under this Agreement because of an action of User or one if its Users or a reseller,
that corrective action may adversely affect other Users of User or other reseller Users, and
User agrees that PowWeb shall have no liability to User, any of its Users
or any Reseller User due to such corrective action by PowWeb.
This limitation of liability reflects an informed, voluntary allocation between the
parties of the risks (known and unknown) that may exist in connection with this Agreement.
The terms of this section shall survive any termination of this Agreement.
Indemnification. User agrees to indemnify, defend and hold harmless PowWeb
and its parent, subsidiary and affiliated companies, and each of their respective
officers, directors, employees, shareholders, attorneys and agents (each an "indemnified party"
and, collectively, "indemnified parties") from and against any and all claims,
damages, losses, liabilities, suits, actions, demands, proceedings (whether legal
or administrative), and expenses (including, but not limited to, reasonable attorney's
fees) threatened, asserted, or filed by a third party against any of the indemnified
parties arising out of or relating to User's use of the Services, (ii) any violation
by User of the AUP, (iii) any breach of any representation, warranty or covenant of
User contained in this Agreement or (iv) any acts or omissions of User. The terms of this
section shall survive any termination of this Agreement.
Waiver of Jury Trial
Both You and PowWeb hereby agree to waive all respective rights to a jury trial
of any claim or cause of action related to or arising out of this Agreement.
The scope of the waiver is intended to be all encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter herein, including without limitation,
contract claims, tort claims, breach of duty claims, and all other common law and statutory claims.
You and PowWeb each acknowledge that the waiver is a material inducement
for each party to enter into a business relationship, that each party has already relied on
the waiver in entering into this Agreement and that each will continue to rely on the
waiver in their related future dealings.
Each party further warrants and represents that each has had the opportunity to
have counsel review this Agreement and this waiver.
The waiver is irrevocable, meaning that it may not be modified either orally or in writing,
and the waiver shall apply to any subsequent amendments, renewals, supplements or
modifications to this Agreement. In the event of litigation, this Agreement may be filed as
written consent to a trial by court.
Independent Contractor. PowWeb and User are independent contractors and
nothing contained in this Agreement places PowWeb and User 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.
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 Massachusetts. 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 must be brought in a state or federal court located in Middlesex County,
Massachusetts. 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.
Headings. The headings herein are for convenience only and are not part of this Agreement.
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 User or PowWeb, 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 User and PowWeb.
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 PowWeb in its sole discretion, which modifications will be effective when posting
to PowWeb's Web site or on any subsequent date as may be set forth in any required notice provided
by us in connection therewith. Upon renewal of any services or products, User agrees to all Terms of
Service in effect on date of renewal and any amendments which take effect pursuant to the terms hereof.
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.
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. PowWeb may give written notice to User via electronic
mail to the User's electronic mail address as maintained in PowWeb's billing records.
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.
Assignment; Successors. User may not assign or transfer this Agreement or any of its rights
or obligations hereunder, without the prior written consent of PowWeb. Any attempted
assignment in violation of the foregoing provision shall be null and void and of no force or
effect whatsoever. PowWeb 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 User. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and permitted assigns.
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.
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, PowWeb's
records of such execution shall be presumed accurate unless proven otherwise.
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.
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, Terms of Service or equitable, in any Person other than the parties hereto and their
respective successors and permitted assigns. Notwithstanding the foregoing, User acknowledges
and agrees that any supplier of third-party product or service 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 User as if it were a party to this Agreement.
Government Regulations. User may not export, re-export, transfer or make available,
whether directly or indirectly, any regulated item or information to anyone outside the United
States (or, if User is outside of the United States, to anyone outside of User's national jurisdiction) 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 User operates or does business.
Marketing. User agrees that during the term of this Agreement PowWeb may
publicly refer to User, orally and in writing, as a User of PowWeb. Any other
public reference to User by PowWeb requires the written consent of User.
This file was last modified on June 29, 2016.