eNom - domain name, web site hosting, email, registration

Shared Exchange Hosting Master Service Agreement

This Master Service Agreement is between eNom, Inc., ("Company") and you ("You").

BY CLICKING "I ACCEPT" AND USING COMPANY'S SERVICES, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, APPENDIX A. MICROSOFT SOFTWARE USE-TERMS AND CONDITIONS (below), ACCEPTABLE USE POLICY, AND COMPANY'S NO-SPAM POLICY.

You agree you shall use the Company's services only for lawful purposes.

Company and You agree to the following provisions:

Provision of Services. Company agrees to provide services to You in accordance with the Shared Exchange Hosting Service Level Agreement in return for your payment for Company's services, your execution and compliance with this agreement, and your compliance with Appendix A Microsoft Software Use-Terms and Conditions (below), Company's Acceptable Use Policy and No-Spam Policy all incorporated by reference herein.

Provision of Company's services shall commence once Company has received both Your payment for Company's services and this Master Service Agreement (Agreement) duly executed by You.
Agreement Term.

The Agreement Term is either the Initial Term or Renewal Term as defined herein. The Initial Term is defined as the time period from the date of your initial payment and execution of this Agreement, whichever occurs later, through the remainder of the calendar month in which this Agreement was executed. The Renewal Term is defined as one calendar month beginning at the end of any prior Agreement Term.
Automatic Renewal.

This Agreement shall renew automatically at the end of the prior Agreement term unless terminated in accordance with this Agreement either by You or by the Company. We reserve the right to modify the Master Service Agreement and Service Level Agreement (or any portion thereof) at any time without notice. When a new Agreement term begins, the then current Master Service Agreement and Service Level Agreement shall apply. Please review this agreement from time to time so that you will be apprised of any changes.
Termination without Cause.

You may terminate this Agreement at any time, for any reason, by following the termination procedure located within the Account section of the CONTROL PANEL Control Panel prior to the beginning of any Renewal Term.

THE COMPANY SHALL NOT BE REQUIRED TO REFUND TO YOU AMOUNTS ALREADY PAID FOR THE MONTH IN WHICH YOU TERMINATE THE AGREEMENT. TERMINATION OF YOUR ACCOUNT WILL NOT CANCEL OR WAIVE ANY FEES OWED TO THE COMPANY PRIOR TO OR AT ACCOUNT TERMINATION. YOUR DATA AND ACCOUNT SETTINGS ARE IRREVOCABLY DELETED AFTER ACCOUNT TERMINATION, INCLUDING BUT NOT LIMITED TO, WEB SITE CONTENT, DATABASES, AND EMAIL MESSAGES. SECURING ALL NEEDED DATA FROM YOUR ACCOUNT PRIOR TO ACCOUNT TERMINATION SHALL BE SOLELY YOUR RESPONSIBILITY.

The Company may terminate this Agreement without cause at any time, for any reason, by providing written or electronic mail notice of termination to your email contact address no less than fifteen calendar days prior to the service termination. If the effective date of the termination occurs prior to the end of the Agreement Term, Company shall refund or not charge You the monthly hosting fees for the month in which Services terminate.
Termination for Cause.

To terminate your account for the Company's violation of the terms of this Agreement or the Service Level Agreement, You shall provide to Company's Legal Department in writing, via email or via certified mail, the details of the Company's violation and allow the Company a reasonable time to cure any such violation prior to termination of your account.

THE COMPANY MAY TERMINATE SERVICES TO YOU IMMEDIATELY AND WITHOUT PRIOR NOTICE (TERMINATION FOR CAUSE) FOR ANY OR ALL OF THE FOLLOWING REASONS:

ANY MATERIAL BREACH OF THIS AGREEMENT, WHICH INCLUDES BUT IS NOT LIMITED TO VIOLATION OF THE COMPANY'S ACCEPTABLE USE OR NO SPAM POLICIES; OR ANY NON-MATERIAL BREACH OF THIS AGREEMENT WHICH REMAINS UNCURED BEYOND A REASONABLE TIME AFTER BREACH NOTIFICATION; AND FAILURE TO PROVIDE AND KEEP CURRENT ALL YOUR COMPANY CONTACT AND BILLING INFORMATION.

IN THE EVENT OF TERMINATION FOR CAUSE, THE COMPANY SHALL NOT REFUND ANY PAID FEES. TERMINATION FOR CAUSE WILL NOT CANCEL OR WAIVE ANY FEES OWED TO THE COMPANY PRIOR TO ACCOUNT TERMINATION.
Payment Terms.

You agree to be billed at the beginning of the Agreement Term via your credit card for all recurring and one-time charges, including but not limited to late fees and termination charges, for all Company's services ordered by You and for any fees You owe to the Company. You further agree to be billed for any additional services ordered at the time the additional services are ordered and also at the beginning of each Renewal Term. Invoice information is provided to You by the Company via your request from within in the CONTROL PANEL Control Panel.

You understand and agree that You are responsible for monitoring and maintaining your accounts within all plan-specified usage limits. In the event your usage exceeds these limits for your account, Company will issue warnings to the contact e-mail on Your account. If you continue to exceed these limits for your account, You agree the Company may charge You for such excess usage via your credit card at the then-published price on the Company's web site. The Company may also increase the limits for your account and charge you accordingly for future periods of service. Usage and associated charges for excess usage shall be determined based solely by the Company's statistical information. Unused monthly allotments shall not accrue or carry over from one month to any other month.
Taxes.

The Company shall not be liable for taxes and other governmental fees and assessments to be paid which are related to purchases made from You or from the Company's server. You agree that You shall be solely responsible for all taxes, fees, and assessments of any nature associated with products or services sold through the use of or with the aid of services provided to You by the Company.
"Beta" Hosting Products.

THIS SECTION APPLIES ONLY TO CUSTOMERS WITH ACCOUNTS CREATED ON EXPERIMENTAL "BETA" PLANS AND PLATFORMS.

"BETA" HOSTING SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS.

All provisions of this Agreement shall apply to experimental "beta" plan and platform accounts, except paragraphs 1, 2, 3, and 6. The Shared Exchange Hosting Service Level Agreement guarantees do not apply to "beta" plan or platform accounts during periods in which You receive the Company's "beta" hosting services for free or at a discount.

In exchange for Company providing experimental "beta" hosting services You agree, during periods You receive free or discounted "beta" hosting services from Company, to comply with this Agreement as it applies to "beta" hosting accounts, Company's Acceptable Use Policy, and Company's No-Spam policy.

Uptime guarantees provided elsewhere in this Agreement or in Service Level Agreement do not apply to "beta" plan and platform accounts. Company does not make any guarantee of the integrity of data stored on "beta" hosting servers.

YOU ARE STRONGLY DISCOURAGED FROM USING ACCOUNTS ON "BETA" PLANS OR PLATFORMS FOR HOSTING ANY PRODUCTION APPLICATIONS OR FOR STORING SENSITIVE DATA.

Company shall upgrade software on "beta" hosting servers when and as Company deems necessary in its sole discretion. Company does not warrant or represent that new versions of the software installed on "beta" servers will be compatible with the currently installed version or that loss of functionality or interruption of service will not occur as a result of such upgrades.

The Company reserves a right to terminate any "beta" Hosting Program at any time by giving You fifteen days written or electronic mail notice.

If a "beta" program is terminated, all free and discounted accounts on the "beta" servers will be converted at the end of the fifteen-day notice period to fee-for-service accounts to a Company's Hosting Plan selected at Company's discretion. To discontinue the account and avoid incurring increased charges under the Company's Exchange Hosting Plan, the account must be terminated by the customer following the termination provisions in Paragraph 4 of this Agreement.
Materials and Products.

Any material and data You provide to the Company in connection with the Company's services shall Server Ready. Server Ready is defined as being in a condition and form, as determined solely by the Company, which requires no additional manipulation or verification on the part of the Company. Attempting to place or requesting placement of Non-Server-Ready material or data on the Company's servers shall be a breach of this Agreement.

The Company may, in its sole discretion, reject material or data that You have placed, attempted to place, or have requested be placed on the Company's servers. The Company agrees to notify You immediately of its rejection of the material or data and provide You with an opportunity to amend or modify the material or data to meet the requirements of the Company.
Limited Warranty; Limitation of Damages.

THE COMPANY PROVIDES SERVICES AS IS AND WITH ALL RISKS. YOU EXPRESSLY AGREE THAT USE OF THE COMPANY'S SERVICES IS AT YOUR SOLE RISK.

The Company, its agents, affiliates, vendors and the like do not represent or warrant that the Services will be uninterrupted or error free; neither do they make any warranty 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 service or merchandise contained in or provided through the Services. The Company expressly disclaims the warranties of merchantability and fitness for a particular purpose and all warranties not expressly contained in this Agreement. You and the Company agree that the terms of this Agreement shall not be altered due to custom or usage or due to the parties' course of dealing or course of performance under this Agreement.

The Company, its agents, affiliates and vendors shall not be liable for any indirect, incidental, special, punitive or consequential damages, including but not limited to damages for lost profits, business interruption, loss of programs or information, and the like, that result from the use or inability to use the Services; from mistakes, omissions, interruptions, deletion of files or directories, errors, defects, delays in operation, or transmission; or for any failure of performance regardless of whether the Company has been advised of such damages or their possibility, or whether the above events are limited to acts of God, communication failure, theft, destruction, or unauthorized access to the Company's records, programs, or the Services, whether in contract, tort or otherwise.

You agree that the Company's total liability and your sole remedy for any non-accessibility to the Services or other downtime is limited to the penalties listed in the Shared Exchange Hosting Service Level Agreement, however, in no event shall the Company's liability exceed the total aggregate amount paid by You to the Company under this Agreement, including all fees, attorney fees, and costs.

The Company will exercise no control over the content of the information passing through the Company's network except those controls expressly provided herein.
Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights.

Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to You. You agree that all right, title, and interest in any product or service provided to You is solely the property of the Company. These products and services are only for Your use in connection with Company's services provided to You as outlined in this Agreement.

You expressly warrant and represent to the Company that You have the right to use any patented, copyrighted, trademarked or proprietary material which You use, post, or otherwise transfer to or by way of the Company servers. Breach of this warranty shall be a material breach of this Agreement.
Hardware, Equipment, and Software.

You are responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access Company servers. Company makes no representations, warranties, or assurances that your equipment will be compatible with Company services.
Age and Capacity.

You expressly represent and warrant that You and any person to whom You grant access to your Company account have reached the age of eighteen and that You are not subject to an limitation on your ability to enter into this Agreement.
Indemnification.

You agree that you shall defend, indemnify, save, and hold Company harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys' fess, asserted against Company, its agents, servants, officers, and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by You, your agents, employees, or assigns.

Without limiting the foregoing, You agree to defend, indemnify, and hold harmless Company against liabilities arising out of:
1. any injury to person or property caused by any products sold or otherwise distributed in connection with Company services provided to you;
2. any material supplied by You infringing or allegedly infringing on the property or proprietary rights of a third party;
3. copyright infringement; and
4. any defective product which You sold or distributed by means of Company services.
Miscellaneous.

Governing Law; Jurisdiction; Forum. This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to its conflicts of laws or its principles. You agree, in the event any claim or suit is brought in connection with the Company's provision of the Services to You, to submit to the jurisdiction of the state of California, and agree to the courts of Santa Clara County, California as the appropriate forum.

Severability. In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any of the other provisions of this Agreement, and this Agreement shall be construed as if such provision(s) had never been contained herein, provided that such provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.

Waiver; No Oral Modification. No waiver by the Company of any breach by You of any of the provisions of this agreement shall be deemed a waiver of any preceding or succeeding breach of this agreement. No such waiver shall be effective unless it is in writing signed by the parties hereto, and then only to the extent expressly set forth in such writing. No modification of this agreement shall be effective unless it is in writing and signed by the parties hereto, and then only to the extent set forth in such writing.

No Assignment. No benefit or duty under this Agreement shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so shall be void.

Surviving Clauses. Clauses 7, 8, 10, 11, 14, and 15 of this Agreement shall survive for the lesser of a period of two years after termination of your account or the maximum length permitted by law.

Entire Agreement; Third Party Beneficiaries. This Agreement constitutes the entire agreement for provision of the Services to You and supersedes all other prior agreements and understandings, both written and oral, between the You and the Company with respect to the Services. You understand and agree that the Company and You intend to include, as the sole third party beneficiaries of this Agreement, Company's software vendors, with all rights and remedies available as if such vendors were a party to this Agreement.

Shared Exchange Hosting Master Agreement v. 3.4 - 15SEP2005

APPENDIX A. MICROSOFT SOFTWARE USE - TERMS AND CONDITIONS

This document concerns your use of Microsoft software, which includes computer software provided to you by YOUR COMPANY as described below, and may include associated media, printed materials, and "online" or electronic documentation (individually or collectively "SOFTWARE PRODUCTS"). YOUR COMPANY does not own the SOFTWARE PRODUCTS and the use thereof is subject to certain rights and limitations of which YOUR COMPANY needs to inform you. Your right to use the SOFTWARE PRODUCTS is subject to your agreement with YOUR COMPANY, and to your understanding of, compliance with and consent to the following terms and conditions, which YOUR COMPANY does not have authority to vary, alter or amend.

DEFINITIONS.

For purposes of this Appendix, the following definitions shall apply: "Client Software" means software that allows a Device to access or utilize the services or functionality provided by the Server Software. "Device" means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, "smart phone", or other electronic device. "Server Software" means software that provides services or functionality on a computer acting as a server. "Redistribution Software" means software described in Paragraph IV ("Use of Redistribution Software") below.

OWNERSHIP OF SOFTWARE PRODUCTS.

SOFTWARE PRODUCTS are licensed to YOUR COMPANY from an affiliate of Microsoft Corporation ("Microsoft"). All title and intellectual property rights in and to the SOFTWARE PRODUCTS (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the SOFTWARE PRODUCTS) are owned by Microsoft or its suppliers. The SOFTWARE PRODUCTS are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the SOFTWARE PRODUCTS does not transfer any ownership of SOFTWARE PRODUCTS or any intellectual property rights to you.

USE OF CLIENT SOFTWARE.

You may use the Client Software installed on your Devices by YOUR COMPANY only in accordance with the instructions, and only in connection with the services, provided by you by YOUR COMPANY.

USE OF REDISTRIBUTION SOFTWARE.

In connection with the services provided to you by YOUR COMPANY, you may have access to certain "sample," "redistributable" and/or software development ("SDK") software code and tools (individually and collectively "Redistribution Software"). YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY REDISTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN THE SERVICES PROVIDER USE RIGHTS ("SPUR") APPLICABLE TO YOUR COMPANY, WHICH TERMS MUST BE PROVIDED TO YOU BY YOUR COMPANY. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by YOUR COMPANY.

COPIES.

You may not make any copies of the SOFTWARE PRODUCTS; provided, however, that you may (a) make one (1) copy of Client Software on your Device as expressly authorized by YOUR COMPANY; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph IV ("Use of Redistribution Software"). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with YOUR COMPANY, upon notice from YOUR COMPANY or upon transfer of your Device to another person or entity, whichever first occurs. You may not copy any printed materials accompanying the SOFTWARE PRODUCTS.

LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY.

You may not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCTS, except and only to the extent that applicable law, notwithstanding this limitation expressly permits such activity.

NO RENTAL.

You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute SOFTWARE PRODUCTS to any third party, and you may not permit any third party to have access to and/or use the functionality of the SOFTWARE PRODUCTS.

TERMINATION.

Without prejudice to any other rights, YOUR COMPANY may terminate your rights to use the SOFTWARE PRODUCTS if you fail to comply with these terms and conditions. In the event of termination or cancellation, you must stop using and/or accessing the SOFTWARE PRODUCTS, and destroy all copies of the SOFTWARE PRODUCTS and all of its component parts.

NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT.

ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY YOUR COMPANY AND NOT BY MICROSOFT OR ITS AFFILIATES OR SUBSIDIARIES.

PRODUCT SUPPORT.

Any product support for the SOFTWARE PRODUCTS is provided to you by YOUR COMPANY and is not provided by Microsoft or its affiliates or subsidiaries.

NOT FAULT TOLERANT.

THE SOFTWARE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.

EXPORT RESTRICTIONS.

The SOFTWARE PRODUCTS are of U.S. origin for purposes of U.S. export control laws. You agree to comply with all applicable international and national laws that apply to the SOFTWARE PRODUCTS, including U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issue by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting.