Service
Agreement
This Web Hosting Agreement (this “Agreement”) is between Actelite, a Wisconsin Corporation formed under the laws of
the State of Wisconsin with its principal office at 1740 N 52nd
Street, Milwaukee Wisconsin 53208 with phone number 414-774-9622 (“Actelite”)
and the person whose signs Actelite’s
service order and set up form (the “Order”)
incorporating this Agreement by reference (“Customer”). This Agreement
governs Customer’s use of Actelite’s Internet services.
1. Services. Subject to the
terms of this Agreement, and contingent on Customer’s satisfaction of Actelite’s
credit approval requirements, Actelite agrees to provide the Internet services
described in the Order for the fees stated in the Order. Shared hosting subject
to Actelite’s Shared Hosting Agreement, Email hosting subject to Actelite’s
Email Hosting Agreement, Domain’s
subject to Actelite’s domain agreement and ICANN’s domain regulations,
including all, E-Commerce sites subject to Actelite’s E-commerce Service Agreement,
Dedicated servers subject to Actelite’s Dedicated Service Agreement, and Backup
Service subject to Actelite’s Backup Service Agreement..
2. Term.
The initial service term of the Agreement shall begin on the date that Actelite
generates an e-mail message to Customer announcing the activation of the
Customer’s account (the “Service
Commencement Date”) and shall continue for the number of months stated in
the Order (the “Initial Term”). Upon expiration of the Initial Term, this
Agreement shall automatically renew for up to three successive renewal terms of
the same length as the Initial Term (each a “Renewal Term”) unless Actelite or Customer provides the other with
written notice of non-renewal at least thirty (30) days prior to the expiration
of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be
referred to collectively in this Agreement as the “Term.”
3. Payments. Fees are payable in
advance on the first day of each billing cycle.
Customer’s billing cycle shall be monthly, quarterly or annually as
indicated on the Order, beginning on the Service Commencement Date. Actelite may require payment for the first
billing cycle before beginning service.
If the Order provides for credit/debit card billing, Customer authorizes
Actelite to bill subsequent fees to the credit/debit card on or after the first
day of each successive billing cycle during the Term of this Agreement;
otherwise Actelite will invoice Customer via electronic mail to the Primary
Customer Contact listed on the Order.
Invoiced fees may be issued on or before the 1st day of each
billing cycle, and the fees shall be due on the 14th day following
invoice date, but in no event earlier than the first day of each billing
cycle.
Payments
must be made in
(b) Fee Increases. Actelite may increase its fees for services effective the
first day of a Renewal Term by giving notice to Customer of the new fees at
least forty five (45) days prior to the beginning of the Renewal Term, and if
Customer does not give a notice of non-renewal as provided in Section 2
above, the Customer shall be deemed to have accepted the new fee for that
Renewal Term and any subsequent Renewal Terms (unless the fees are increased in
the same manner for a subsequent Renewal Term).
(c) Taxes. At Actelite’s request Customer shall remit to
Actelite all sales, VAT or similar tax imposed on the provision of the services
(but not in the nature of an income tax on Actelite), regardless of whether Actelite
fails to collect the tax at the time the related services are provided.
(d) Early
Termination. Customer acknowledges that the amount of the
fee for the service is based on Customer’s agreement to pay the fee for the
entire Initial Term, or Renewal Term, as applicable. In the event Actelite terminates the
Agreement for Customer’s breach of the Agreement in accordance with Section
9 (Termination), or Customer terminates the service other than in
accordance with Section 9 (Termination) for Actelite’s breach, the
unpaid fees for each billing cycle remaining in the Initial Term or
then-current Renewal Term, as applicable, are due on the business day following
termination of the Agreement.
4. Law/AUP. Customer agrees to use the service in
compliance with applicable law and Actelite’s Acceptable Use Policy posted at http://www.actelite.com/Actelite_aup.html (the “AUP”), which is hereby incorporated by
reference in this Agreement. Customer
agrees that Actelite may, in its reasonable commercial judgment consistent with
industry standards, amend the AUP from time to time to further detail or
describe reasonable restrictions and conditions on Customer’s use of the
Services. Amendments to the AUP are
effective on the earlier of Actelite’s notice to Customer that an amendment has
been made, or the first day of any Renewal Term that begins subsequent to the
amendment. Customer agrees to cooperate
with Actelite’s reasonable investigation of any suspected violation of the
AUP. In the event of a dispute between Actelite
and Customer regarding the interpretation of the AUP, Actelite’s commercially
reasonable interpretation of the AUP shall govern.
4a)
Civil & Criminal Subpoena Policy
Actelite’s Privacy Policy prohibits the release of customer or account information without express permission from the customer, except when required by law, to conform to the edicts of the law, or to comply with legal process properly served on Actelite or one of its affiliates.
If you seek the identity or account information of
a Actelite customer in connection with a civil or criminal legal matter, you
must fax, mail, or serve Actelite with a valid subpoena. Upon the receipt of a
valid civil subpoena, Actelite will promptly notify the customer whose
information is sought via e-mail or
4b) Fees for Subpoena Compliance
Actelite will charge the person or entity submitting the civil subpoena for costs associated with subpoena compliance. Payment must be made within thirty (30) days from the date of receipt of the Actelite invoice.
· Research - $75.00/hour
· Federal Express - Cost as Billed
· Copies - $.25/page
Actelite will not produce the content of e-mail, as the Electronic Communications Privacy Act, 18 U.S.C. §2701 et seq., prohibits an electronic communications service provider from producing the contents of electronic communications, even pursuant to subpoena or court order, except in limited circumstances. Actelite’s e-mail servers do not retain deleted or sent e-mail. However, deleted e-mail may be recoverable from back-up servers for a period of up to thirty (30) days.
Actelite reserves the right to request a copy of the complaint and any supporting documentation that demonstrates how the Actelite e-mail address is related to the pending litigation and the underlying subpoena.
5. Customer Information. Customer represents and warrants to Actelite
that the information he, she or it has provided and will provide to Actelite
for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer
represents and warrants to Actelite that he or she is at least 18 years of
age. Actelite may rely on the
instructions of the person listed as the Primary Customer Contact on the Order
with regard to Customer’s account until Customer has provided a written notice
changing the Primary Customer Contract.
6 Indemnification. Customer agrees to indemnify and
hold harmless Actelite, Actelite’s affiliates, and each of their respective
officers, directors, agents, and employees from and against any and all claims,
demands, liabilities, obligations, losses, damages, penalties, fines, punitive
damages, amounts in interest, expenses and disbursements of any kind and nature
whatsoever (including reasonable attorneys fees) brought by a third party under
any theory of legal liability arising out of or related to the actual or
alleged use of Customer’s services in violation of applicable law or the
AUP by Customer or any person using
Customer’s log on information, regardless of whether such person has been
authorized to use the services by Customer.
7. Disclaimer of Warranties.
ACTELITE
DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED,
ERROR-FREE, OR COMPLETELY SECURE. TO
THE EXTENT PERMITTED BY APPLICABLE LAW ACTELITE DISCLAIMS ANY AND ALL
WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON
AN “AS IS” BASIS.
8. Limitation of Damages.
NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR
FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE,
ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR
SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING
ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY
OF ACTELITE AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF
LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT)
SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR
THREE MONTHS OF SERVICE.
9. Suspension/Termination.
(a) Suspension of Service. Customer agrees that Actelite may suspend
services to Customer without notice and without liability if: (i) Actelite reasonably believes that
the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any
reasonable investigation of any suspected violation of the AUP; (iii) Actelite reasonably believes that
the suspension of service is necessary to protect its network or its other
customers, or (iv) as requested by a
law enforcement or regulatory agency.
Customer shall pay Actelite’s reasonable reinstatement fee if service is
reinstituted following a suspension of service under this subsection.
(b) Termination. The Agreement may be terminated by Customer
prior to the expiration of the Initial Term or any Renewal Term without further
notice and without liability if Actelite fails in a material way to provide the
service in accordance with the terms of the Agreement and does not cure the
failure within ten (10) days of Customer’s written notice describing the
failure in reasonable detail. The
Agreement may be terminated by Actelite prior to the expiration of the Initial
Term or any Renewal Term without further notice and without liability as
follows: (i) upon ten (10) days
notice if Customer is overdue on the payment of any amount due under the
Agreement; (ii) Customer materially
violates any other provision of the Agreement, including the AUP, and fails to
cure the violation within thirty (30) days of a written notice from Actelite
describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer’s Service is used in
violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5
(Customer Information) of this Agreement.
Either party may terminate this agreement upon ten (10) days advance
notice if the other party admits insolvency, makes an assignment for the
benefit of its creditors, files for bankruptcy or similar protection, is unable
to pay debts as they become due, has a trustee or receiver appointed over all
or a substantial portion of its assets, or enters into an agreement for the
extension or readjustment of all or substantially all of its obligations.
10. Requests for Customer Information. Customer agrees that Actelite may, without
notice to Customer, (i) report to the appropriate authorities any
conduct by Customer or any of Customer’s customers or end users that Actelite
believes violates applicable law, and (ii) provide any information that it has about
Customer or any of its customers or end users in response to a formal or
informal request from a law enforcement or regulatory agency or in response to
a formal request in a civil action that on its face meets the requirements for
such a request.
11. Back Up Copy. Customer agrees to maintain a current copy
of all content hosted by Actelite nothwithstanding any agreement by Actelite to
provide back up services.
12. Changes to Actelite’s Network. Upgrades and other changes in Actelite’s
network, including, but not limited to changes in its software, hardware, and
service providers, may affect the display or operation of Customer’s hosted
content and/or applications. Actelite
reserves the right to change its network in its commercially reasonable discretion,
and Actelite shall not be liable for any resulting harm to Customer.
13. Notices.
Notices
to Actelite under the Agreement shall be given via electronic mail to the
e-mail address posted for customer
support on http://www.actelite.com/notices.html. Notices to Customer shall be given via
electronic mail to the individual listed as the Primary Customer Contact on the
Order. Notices are deemed received on
the day transmitted, or if that day is not a business day, on the first
business day following the day delivered.
Customer may change his, her or its notice address by a notice given in
accordance with this Section.
14. Force
Majeure. Actelite shall not be in default of any
obligation under the Agreement if the failure to perform the obligation is due
to any event beyond Actelite’s control, including, without limitation,
significant failure of a portion of the power grid, significant failure of the
Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other
organized labor action, terrorist activity, or other events of a magnitude or
type for which precautions are not generally taken in the industry.
15. Governing Law/Disputes. The Agreement shall be governed by the laws
of the State of
16. Miscellaneous. Each party acknowledges
and agrees that the other party retains exclusive ownership and rights in its
trademarks, service marks, trade secrets, inventions, copyrights, and other
intellectual property. Neither party may
use the other party’s name or trade mark without the other party’s prior
written consent. The parties
intend for their relationship to be that of independent contractors and not a
partnership, joint venture, or employer/employee. Neither party will represent itself to be
agent of the other. Each party
acknowledges that it has no power or authority to bind the other on any
agreement and that it will not represent to any person that it has such power
or authority. This
Agreement may be amended only by a formal written agreement signed by both
parties. The terms on Customer’s
purchase order or other business forms are not binding on Actelite unless they
are expressly incorporated into a formal written agreement signed by both
parties. A party’s failure or delay in
enforcing any provision of the Agreement will not be deemed a waiver of that
party’s rights with respect to that provision or any other provision of the
Agreement. A party’s waiver of any of
its right under the Agreement is not a waiver of any of its other rights with
respect to a prior, contemporaneous or future occurrence, whether similar in
nature or not. The captions in the
Agreement are not part of the Agreement, but are for the convenience of the
parties. The following provisions will
survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions
limiting liability and disclaiming warranties, provisions regarding ownership
of intellectual property, these miscellaneous provisions, and other provisions
that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the
Agreement. Neither insurers nor the
customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement
without Actelite’s prior written consent.
Actelite’s approval for assignment is contingent on the assignee meeting
Actelite’s credit approval criteria. Actelite
may assign the Agreement in whole or in part.
This
Agreement together with the Order and AUP constitutes the complete and
exclusive agreement between the parties regarding its subject matter and
supercedes and replace any prior understanding or communication, written or
oral.