Policy Statement of Acceptable Uses
The fine (but complete) print
VIRTUAL SERVER AGREEMENT
November 1, 1997
Mug-num and abitmark.com (we, us, our) and YOU agree to the following:
1.0
Definitions.
1.1
"Customer" means the person who orders the Virtual Server and has ownership and
control rights and obligations for the Virtual Server.
1.2
"Customer Data" means all supporting data files and data structures provided by
the Customer for his Virtual Server.
1.3
"Virtual Server" means the server space and software services provided to the
Customer including but not limited to the HTTP service, FTP service, SMTP service, POP
service, server extensions, third-party software, and CGI library scripts.
1.4
"Physical Server" means the serving computers, hardware and operating- system,
and software necessary to operate and support the Virtual Server in accordance with this
Agreement.
2.0
Scope of Services. We will provide you with the following specific services:
2.1
Physical Server Hardware and Software Services. We will provide the Physical Servers and
other computer and operating-system software to operate and support the Virtual Server in
a manner acceptable in the industry. Although we will make reasonable efforts to protect
and backup data for you on a regular basis, we are not responsible for the Customer Data
residing on the Virtual Server. You are ultimately and solely responsible for the backup
of Customer Data stored on your Virtual Server.
2.2
Physical Server Set-Up and Updating. We will configure the Virtual Domain Name Server, and
Customer will load the Customer Data onto the server computers so as to create a fully
functional Internet presence. After the Virtual Server is loaded, set up with the Customer
Data, and is fully operational, Customer will be responsible for all Web Server content
management for our Domain Name Servers.
2.3
Physical Server Connection and Access. We will provide connection of the Virtual Server to
the Internet, including all telecommunications equipment and connections for the Virtual
Server to provide public access on a 24-hour-a-day, 7-day-a-week basis, with the exception
of scheduled maintenance downtime. We will use our best efforts to provide uninterrupted
Physical Server Connection and Access, except for scheduled maintenance downtime and any
interruption to Physical Server Connection and Access beyond our control caused by, for
example, acts of nature, third-party equipment or transmission failures, or security
breaches.
2.4
Maintenance Services. We will perform maintenance services as we determine reasonably
necessary to maintain the continuous operation of the Virtual Server. You agree to
periodically-scheduled maintenance downtime periods. We will provide prior notice of the
maintenance downtime, except when circumstances beyond our control limit our ability to do
so.
2.5
Hardware, Equipment and Software. You are responsible for and must provide all telephone,
computer, hardware and software equipment and services necessary to access us. We make no
representations, warranties, or assurances that your equipment will be compatible with our
service.
3.0
Payment Terms. You agree to the following payment terms in consideration for the services
provided:
3.1
Set-Up Fee. You will pay us a one-time, non-refundable set-up fee according to our current
Virtual Server Price Schedule, which is available on our home page (www.bitmark.com) or
upon request.
3.2
Service Fee. You will pay us a monthly Service Fee for the services we provide under this
Agreement according to our current Virtual Server Price Schedule, which is available on
our home page or upon request. The Service Fee is billed to you at the beginning of each
month and is due on the 1th day of the month in which the Service Fee is billed. The
Service Fee is subject to adjustment, with notice, according to the current Virtual Server
Price Schedule.
3.3
Cancellation. In the event you cancel your service, you will be charged in full for the
entire month in which you canceled your service. In the event you have elected to prepay
subsequent, additional months' Service Fees, we retain the right to charge you an
administrative fee and deduct the administrative fee from the subsequent, future months'
Service Fees before refunding them to you.
3.4
Breach. In the event we terminate this Agreement because of a breach, you will be charged
in full for the entire month in which the breach occurred. In the event you have elected
to prepay subsequent, additional months' Service Fees, we retain the right to charge an
administrative fee and deduct the administrative fee from the subsequent, future months'
Service Fees before refunding them to you
3.5
Tax. These fees are exclusive of any and all federal, state, and local sales, use, value
added, excise, duty and any other taxes assessed with respect to the services provided
under this Agreement, except that your income taxes and any sales or similar taxes on the
sale of the Customer products and services to end users shall be the sole responsibility
of the Customer. We will add Florida Sales Tax to our fees to any Customer residing in the
State of Florida.
4.0
Representations and Warranties. Our obligations under this Agreement are conditioned upon
the following representations and warranties:
4.1
Compliance with Law. You represent and warrant that you will comply with all applicable
state and federal laws in your performance of this Agreement and in the use and operation
of the Virtual Server, including laws governing technology, software and trade secrets.
4.2
Authority to Contract. You represent and warrant that you have full authority and right to
enter into this Agreement and that there are no conflicting claims relating to the rights
granted by this Agreement.
4.3
Non-Infringement. You represent and warrant that your performance of this Agreement and
providing the Web Service, including the software or data files, shall not infringe the
intellectual property or other proprietary rights of any third party.
4.4
Our Performance. We represent and warrant that our services shall be performed in a
professional and workmanlike manner, and the computer servers will be operated in
accordance with our obligations as defined by this Agreement.
4.5
Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED ABOVE, WE MAKE NO
WARRANTY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, AND ALL SERVICES ARE PROVIDED
ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT.
5.0
You expressly agree that use of our Virtual Server is at your own risk. Neither we, our
employees, affiliates, agents, third-party information providers, merchants, licensors or
the like, warranty that our service will not be interrupted or error free; nor do we make
any warranty as to the results that may be obtained from the use of our service or as to
the accuracy, reliability or content of any information serviced or merchandise contained
in or provided through our service, unless otherwise expressly stated in this Agreement.
5.1
Under no circumstances, including negligence, will we, our officers, agents or anyone else
involved in creating, producing or distributing our service be liable for any direct,
indirect, incidental, special or consequential damages that result from the use of or
inability to use our service. We will further not be liable for results from mistakes,
omissions, interruptions, deletions of files, errors, defects, delays and operation, or
transmission or failure of performance whether or not limited to acts of nature,
communication failure, theft, destruction or unauthorized access to our records, programs
or services. You acknowledge that this paragraph shall apply to all content on our Virtual
Server.
5.2
Your exclusive remedy for all damages, losses and causes of actions whether in contract or
tort (including negligence or otherwise) will not (a) exceed the actual dollar amount
which you paid during the 12-month period prior to the date the cause of action arose, or
(b) include any incidental, consequential, extemporary or punitive damages of any kind,
including without limitation, loss of data, file, profit, good will, time, savings or
revenue.
6.0
Term and Termination. The following describes the effective date, duration and methods of
termination:
6.1
Effective Date. The Effective Date of this Agreement is the last date appearing below.
6.2
Duration. This Agreement will commence on the Effective Date and continue on a
month-to-month basis.
6.3
Termination for Convenience. Subject to Section 3.3, you may terminate this Agreement at
any time for your convenience by providing us with advance written notice.
6.4
Breach or Default. The following constitute a breach or default of this Agreement:
a.your failure to pay the current month's Service Fee by the first day of the following
month,
b.your violation of Section 8.0,
c.your violation of 9.2, or
d.your violation of Sections 4.1, 4.2 or 4.3.
6.5
Special Lien on Personal Property. We retain a special lien on all of your personal
property in our possession to secure any payment amount you may owe us under this
Agreement.
7.0
Ownership Rights. We acknowledge that all right, title and interest in the Customer Data
shall be solely owned by the Customer. We own or have licensed all server software. In the
event that we elect, at our option, to provide custom software to you, this software will
be licensed to you for use only on our Virtual Servers on a non-exclusive, royalty-free,
fully-paid basis according to the terms of this Agreement.
8.0
Activities Subject to Immediate Deactivation. Any Virtual Server that is used for Illegal,
Abusive or Unethical Activity may be immediately deactivated by us without warning to you.
Illegal, Abusive or Unethical Activities include, but are not limited to, pornography,
obscenity, nudity, violations of privacy, hacking, computer virus, gambling, or promotion
of gambling, and any harassing or harmful materials or uses, as determined by us. You
agree to indemnify and hold us harmless from any claim resulting from your publications or
use of Illegal, Abusive or Unethical materials. Although we will make reasonable efforts
to alert you to such activities and allow you an opportunity to cure them within a 12-hour
period after discovery, we are not required to give notice before deactivating your use of
our services if, in our discretion, your use is or results in Illegal, Abusive or
Unethical activities. If a Virtual Server is disabled, the regular monthly fees still
apply.
9.0
Miscellaneous.
9.1
Public Nature of Internet. Please understand that all information submitted on the Virtual
Server shall be considered publicly accessible. Important and private information should
be protected by you. For example, we are not liable for protection or privacy of
electronic mail or other information transferred through the Internet or any other network
provider that you may use.
9.2
Unsolicited Electronic Mail. You are expressly prohibited from sending unsolicited bulk
mail messages ("junk mail" or "spam"). This includes, but is not
limited to, bulk-mailing of commercial advertising, information announcements, and
political tracts. Such material may only be sent to those who have specifically requested
it. Malicious or threatening email is also prohibited. Although we will make reasonable
efforts to alert you to such activities and allow you an opportunity to cure them within a
12-hour period after discovery, we reserve the right to immediately deactivate your use of
our service if we discover such activity. Further, you agree to indemnify and hold us
harmless from
any claim resulting from your use or distribution of electronic mail services through the
service provided through this Agreement.
9.3
Governing Law and Attorneys' Fees. This Agreement will be interpreted and applied in
accordance with the laws of the state of Florida, without regard to the conflicts of law
provisions. In any action or proceeding to enforce rights under this Agreement, the
prevailing party will be entitled to recover costs and attorneys' fees, whether or not a
suit is actually filed.
9.4
Control and Ownership of IP. We maintain and control ownership of all IP numbers and
addresses that may be assigned to you, and we reserve, in our sole discretion, the right
to change or remove any and all IP numbers and addresses.
9.5
Excessive CPU Usage. Virtual Servers which use, in our discretion, CPU processing capacity
on the Physical Server in excess of the designed processing capacity will be subject to
immediate deactivation. Upgrades to the processing capacity are available.
9.6
Resale of Services and Flow-down of Obligations. You may NOT resell space on your own
Virtual Servers unless specifically authorized by us and you must first obligate any such
resale to the same terms of this Agreement and incorporate into that resale all of our
rights, including our rights regarding content and activity.
9.7
Age. You certify that you are at least 18 years of age.
9.8
Transfer. You may not transfer or assign this Agreement without our written consent.
INSTRUCTIONS
After you have reviewed the Virtual Server Agreement, please print, sign, date, and send it as "Acknowledgment of Receipt and Execution of Agreement" to
us at the address indicated below.